The power of the Press
For over 40 years, as a barrister and judge I have watched the press in action. I know how vital the press is - all of it - as guardian of the interests of the public, as a critical witness of events, as a standard bearer for those who have no one else to speak up to them. Nothing has changed that view. The press operating freely is one of the true safeguards of our democracy. As a result it holds a privileged and powerful place in our society. But this power and influence carries with it responsibility to the public interest in whose name it exercises these privileges. Unfortunately as the evidence has shown beyond doubt, on too many occasions those responsible along with the editors code of conduct - which the press wrote and promoted - have simply been ignored. This had damaged the public interest, caused real hardship and on occasion wreaked havoc on the lives of innocent people. What the press do and say is no ordinary exercise of free speech; it operates very differently to blogs on the internet and other social media such as Twitter. Its impact is uniquely powerful.
A free press in a democracy holds power to account but, with a few honourable exceptions, the UK press has not performed that vital role in the case of its own power. None of this however is to conclude that press freedom in Britain, hard won over 300 years ago, should be jeopardised. On the contrary - it should not. I remain firmly believe that press, all of it, serves the public very well well most of the time.
There are truly countless examples of great journalism, great investigations and great campaigns. Not that it is necessary for the press to be pursuing serious stories for it to be acting in the public interest. Some its most important functions are to inform, educate and entertain, and when doing so to be irreverent, unruly and opinionated.
But none of that means that the press is beyond challenge. I know of no organised profession, industry or trade in which the serious failings of the few are overlooked because of the good done by the many. In any other case the press would be the first to expose such practices.
Origins of the inquiry
For many years, there have been complaints that certain parts of the press ride roughshod over others, both individuals and the public at large, without any justifiable public interest. Attempts to take them to task have not been successful. Promises follow other promises. Even changes made following the death of Diana, Princess of Wales, have hardly been enduring. Practices discovered by the Information Commissioner, during Operation Motorman, which led to the publication of two reports to Parliament,revealed that large parts of the press had been engaged in a widespread trade in private and confidential information, apparently with little regard to the public interest. A private detective, Steve Whittamore, had certainly been engaged in wholesale criminal breaches of data protection legislation and, prima facie, journalists who engaged his services or used his products (and paid substantial sums for the privilege) must or should have appreciated that the information could not have been obtained lawfully.
None of these revelations led to any newspaper conducting an investigation either into its own practices or into those of other titles. No newspaper sought to discover (let alone expose) whether its journalists had complied with data protection legislation. Some titles promptly forbad the further use of private detectives for data searching; many took some time to take that step and others did not do so at all. When the Information Commissioner sought the support of the Government and then Parliament to increase the penalties available to the courts for criminal breaches of the law, he was met with intense lobbying by the press (and by the Press Complaints Commission) challenging the proposition that breach of the criminal law by journalists, even on a wholesale, industrial basis should ever be capable of being visited with a custodial penalty.
When Clive Goodman, a journalist employed by the News of the World and Glenn Mulcaire, a private detective, were convicted of hacking into the telephone messages of members of the Royal Household and others, it was implicit during the course of the criminal prosecution that others must have been involved, whether knowingly or not, in using information that was the product of phone hacking. Most responsible corporate entities would be appalled that employees were or could be involved in the commission of crime in order to further their business. Not so at the News of the World. When the police had sought to execute a warrant, they were confronted and driven off by the staff at the newspaper. Cooperation, if provided, was minimal. The two that were sentenced to terms of imprisonment were paid very substantial sums as compensation for loss of employment when they were released.
Once again, neither the News of the World nor any of the other titles at News International, nor anyone else, then sought to undertake the type of investigative journalism (this time, into phone hacking) of a type that has been so praised during the course of the Inquiry. Rather, 'one rogue reporter' was the explanation provided to the Press Complaints Commission, to Parliament and to everyone else and, for years, that is where it was left: that was so even though the most senior lawyer employed by the News of the World did not believe it to be true. Nobody went further. There were what are now said to be rumours and jokes about the extent to which phone hacking was rife throughout the industry, but (with one sole exception) the press did nothing to investigate itself or to expose conduct which, if it had involved the Government, Parliament, any other national institution or indeed any other organisation of significance, would have been subject to the most intense spotlight that journalists could bring to bear upon it.
Complex civil proceedings were undertaken by those whose identity as victims of phone hacking had been exposed by the prosecution of Goodman and Mulcaire; two and a half years were to pass while as a sole investigative journalist, Nick Davies, started to uncover the truth, either alerted or reassured as to in the accuracy of what he was learning by the incredible settlement that one of the victims had negotiated. On 9 July 2009, an article was published in the Guardian which alleged cover up. The police (who had perfectly reasonably decided to limit the prosecutions in 2006 not least because of their incredible workload that was a consequence of terrorism) decided that there was no new evidence contained within the article even to justify a review. This has given rise to allegations of partiality on the part of the Metropolitan Police Service. The Press Complaints Commission not only accepted the assurances of the News of the World but, in a rare foray into investigation of standards rather than resolution of complaints, condemned the Guardian for publishing the results of the investigation: its report to that effect has since been withdrawn.
A further – and lengthier – report in the New York Times, published on 1 September 2010, was no more effective. Once again, the Metropolitan Police decided that there was not enough to justify a review and, once again, attempts to uncover what had happened were thwarted; not the least important were the valiant efforts of the Culture, Media and Sports Select Committee. The next steps required the persistence of civil litigants who secured significant admissions, and, in particular, Sienna Miller who pursued the litigation both systematically and thoroughly; as a result, far greater wrongdoing was exposed than had hitherto been uncovered.
Encouraged by the Director of Public Prosecutions, the investigation into phone hacking was re-opened and Operation Weeting was born. Understanding the enormity of what had happened, News International then provided extensive cooperation. Within the material seized from Glenn Mulcaire, 4,375 names are linked to phone numbers. Of those, 829 people are regarded by the police as being likely victims of phone hacking. The material led to evidence of payments to public officials, computer hacking, mobile phone theft and other potentially unlawful activities: this led to Operations Elveden and Tuleta along with other subsidiary investigations.
There were many other examples of egregious behaviour on the part of the press each one seen, at the time, as free-standing. The most serious were the treatment of Drs Kate and Gerry McCann following the disappearance on 3 May 2007 of their daughter, Madeleine, in Praia da Luz, Portugal and that of Mr Christopher Jefferies in December 2010, when he was caught up in the investigation of the murder of Joanna Yeates.
The hacking of Milly Dowler
Then came exposure of the fact, albeit as long ago as March 2002, that the mobile phone of Milly Dowler had been hacked by someone at the News of the World. The information obtained had led the paper to publish false leads as a result of its misunderstanding of a message which had simply been left on the wrong phone in error. It was also believed that a message or messages had been deleted (thereby giving rise to a false moment of hope in her family). On 5 July 2011, these facts were reported by the Guardian. The outcry was immediate; Two days later it was announced that the News of the World would close. On 13 July, this Inquiry was set up. As I have explained, the remit was subsequently expanded.
The Guardian later retracted that part of its story that asserted that one or more messages had been deleted.
Of equal if not greater importance, however, is that Mr and Mrs Dowler were subjected to intrusive and insensitive press reporting at a time of intense personal distress. Such was the appetite in certain sections of the press to acquire information and photographs which would enable 'the story' to be kept alive as one of ongoing human interest to readers, these sections of the press often overlooked the privacy rights and personal feelings of the Dowler family. Thus, the family came to be treated as little more than a commodity in which the press had an unrestricted interest.
The culture of the press
It has been argued that while there may have been a very real problem with the approach to obtaining and reporting some (but by no means all) stories at the News of the World, there is no justification for concluding that other titles were behaving unlawfully or unethically. As for the high profile examples of obviously unethical press practice that suggest otherwise, it is argued that these are aberrations and do not reflect on the culture, practices or ethics of the press as a whole. I wholly reject this analysis. Of course, most stories do not generate issues around libel, privacy or the rights of others and most of those that do have been written with high (if not very high) standards of integrity and propriety. But the significant number of stories that fail to meet those standards cannot be ignored and I have no doubt that they do reflect a culture (or, perhaps more accurately, a sub-culture) within some parts of some titles.
While the police investigation is underway, it is not possible to descend into detail, still less to consider (as alleged by a witness and in threatened civil proceedings) the extent to which it may have extended into another newspaper publisher. What can be noted is the way in which editors from different titles talked and joked about information which must have come from phone hacking; furthermore, the jokes must have been understood by those who heard them. I emphasise that this does not make whoever mentioned the topic necessarily guilty of anything.
However, at the very least, it demonstrates that the attitude of these editors was not one of embarrassment that this type of intrusion was going on; it was not such as to make them examine their title's attitude to compliance in this area. No national title mounted a campaign about the slack security surrounding mobile phone messages.
Phone hacking in itself, even if it were only in one title, would justify a reconsideration of the corporate governance surrounding the way in which newspapers operate and the regulatory regime that is required. Without making findings against anyone individually, the evidence drives me to conclude that this was far more than a covert, secret activity, known to nobody save one or two practitioners of the 'dark arts'. Yet it was illegal. And after the prosecution, at more than one title and more than one publisher, there was no in-depth look to examine who had been paid for what and why or to review compliance requirements.
Throughout the Inquiry, not a single witness suggested that any of the specific examples of phone hacking by the NoTW was justified in the public interest, and there is not a shred of evidence to suggest it was. Instead, it appeared to be a practice which, on the whole, was directed at obtaining information about the private lives of those in the public eye – tittle tattle – cheaply. It may well have been cheap for the newspaper titles who utilised the technique, but it cost its victims dearly...
Phone hacking is most decidedly not all that is amiss with the way in which some parts of the press have operated some of the time. Based on all the evidence that I have heard, I have no doubt that, to a greater or lesser extent with a wider range of titles, there has been a recklessness in prioritising sensational stories, almost irrespective of the harm that the stories may cause and the rights of those who would be affected (perhaps in a way that can never be remedied), all the while heedless of the public interest. In the determination to get the story, this involved those (like the Dowlers, the McCanns and Abigail Witchell) thrust into the public eye through circumstances beyond their control; it involved those who were simply connected to someone famous (like "HJK", who was permitted to give evidence anonymously, and Mary-Ellen Field, who certainly suffered the consequences when it was thought that she had been leaking details relating to her principal). In each case, the impact has been real and, in some cases, devastating...
There has been a willingness to deploy covert surveillance, blagging and deception in circumstances where it is extremely difficult to see any public interest justification. The News of the World was not only prepared to conduct surveillance on solicitors acting for claimants in phone hacking litigation; even more seriously, at least one MP on the Culture Media and Sports Select Committee was also targeted. These techniques were deployed against or in spite of the public interest.
I recognise that journalists sometimes have to be persistent when pursuing an important story that the target may not want to be investigated or the subject of a press report. Unfortunately, the virtue of persistence has sometimes been pursued – whether by door-stepping, chase by photographers, persistent telephone calls and the like – to the point of vice, where it has become (or, at the very least, verges on) harassment. There has been extensive evidence of the publication of private information without consent and, again, without discernible legitimate public interest: many such stories will not cause harm or distress and no-one will complain but some stories do. This does not involve all the papers all the time, or many of the papers most of the time, but some of the papers some of the time. This is to an extent that demonstrates that, when a story is regarded as big enough, the provisions of the law and the code count for little and, in relation to the code, its specific provisions are also manipulated or broken (to say nothing of its spirit).…
Amongst the most cogent evidence of harassment of this nature was that given by the actress Sienna Miller. She gave a powerful account of acts of dangerous driving, and of being harassed, verbally abused and spat at by freelance photographers, until, that is, a court order protected her from such conduct in the future: "I would often find myself – I was 21 – at midnight running down a dark street on my own with ten big men chasing me and the fact that they had cameras in their hands meant that that was legal, but if you take away the cameras, what have you got? You've got a pack of men chasing a woman and obviously that's a very intimidating situation to be in."
… Ms Gascoigne explained how, following her marriage to the footballer Paul Gascoigne, she was subjected to intense press scrutiny that sought to depict her as a money grabber and the cause of her husband's issues with addiction and mental illness. This scrutiny went beyond coverage of her public appearances and extended to the sustained harassment of her in and around her home.
At times it took extraordinary forms. One journalist followed Ms Gascoigne and her children from their home in Hertfordshire to the Bluewater shopping centre in Kent.
In very different contexts, Christopher Jefferies and Kate and Gerry McCann described their experiences of sustained scrutiny and intrusion following the well-publicised events which attracted press interest. All three witnesses described how journalists and press photographers camped outside their homes, sometimes for days on end, making it impossible for them to go about their daily lives or indeed live comfortably or securely in the family home.
In his witness statement Dr McCann told the Inquiry how at times his car was mobbed by journalists and photographers as he, or his wife, tried to drive with their family from their home. He recalled that journalists and press photographers banged on the car windows and shouted at the family even though their young children were not only visible but were also clearly distressed by such behaviour.
Intrusion into grief and shock
A number of witnesses told the Inquiry of occasions when journalists and press photographers intruded into moments of grief, shock and similar personal difficulty, in the face of clause 5 of the Editors' Code and the wish of the witnesses to be left in peace. For example, Anne Diamond, the broadcast journalist and presenter, described how following the loss of her infant son through cot death, she wrote to all the editors of the national newspapers asking them to stay away from the funeral. However, she told the Inquiry that she saw a photographer in the vicinity of the church, and that a photograph of her and her husband was then published on the front page of The Sun above a bogus story entitled 'Anne's plea'. The editor of The Sun rejected Ms Diamond's husband's request not to publish the photograph and, following what she described as 'emotional blackmail', the family subsequently succumbed to pressure placed on them by the paper to join forces with The Sun to raise funds in aid of cot death research, rival papers carrying 'spoiler stories' shortly thereafter. Thus, what should have been an intensely private moment of personal anguish was rendered all the more difficult and distressing.
Aside from the evidence generated by Operation Motorman, a number of witnesses told the Inquiry how their privacy had been breached in contravention of the Editors' Code and also potentially section 55 of the Data Protection Act 1998, through the technique known as blagging. A flavour of this evidence may be given by furnishing a number of examples. In her witness statement JK Rowling stated that, during the course of 1998, she received a telephone call purportedly from the Post Office. The caller explained that they had a package that the Post Office wanted to deliver but that they did not have Ms Rowling's address. On the face of it, this was a remarkable claim and, on being pressed to justify it by Ms Rowling, the caller swiftly hung up. It is difficult to avoid the inference that this was a journalist seeking personal information. Ms Rowling's husband-to-be appears to have received similar treatment by the press in 2000.
He was telephoned by a person claiming to be from the tax office seeking information regarding his address and earnings, and this was duly disclosed. The following day this information was published by a Scottish newspaper and the paparazzi duly descended on Ms Rowling's future husband's home. The inference that the caller was a journalist is here even stronger.
Given … [the] current status [of Operation Tuleta] it is difficult to reach any conclusions of a generic nature in relation to email hacking, save to observe that it remains possible that a considerable quantity of criminality will be exposed in due course…
Overall, it is safe to conclude that email hacking has taken place in recent years.
Bribery and corruption
The ongoing criminal investigation hampers the ability of the Inquiry to explore the available evidence. Recognising these constraining factors, these developments cannot be dismissed as irrelevant.
A free press in a democracy holds power to account but, with a few honourable exceptions, the UK press has not performed that vital role in the case of its own power. None of this however is to conclude that press freedom in Britain, hard won over 300 years ago, should be jeopardised. On the contrary - it should not. I remain firmly believe that press, all of it, serves the public very well well most of the time.
One practice which appears to have been used frequently was the searching of refuse outside the homes of persons of interests to newspapers, or "binnology" as it has become known. In particular, the Inquiry heard that newspapers engaged the services of Benjamin Pell (known as Benjy the Binman) to search for documents and other information in rubbish bins outside the homes and offices of celebrities, and the offices of their accountants and lawyers.
Paul McMullan told the Inquiry "I think most journalists, me included, would find the contents of people's bins incredibly interesting.... it gives you such a great starting point, much better, actually, than hacking a phone because that almost tips them off that you're looking..."
[Piers] Morgan explained that he had engaged the services of Benjy the Binman on several occasions, including one where he was presented with sacks which were full of documents relating to Elton John; this included bank statements and had been obtained from the bins of Mr John's manager. Mr Morgan considered that this conduct was not illegal and was on the cusp of being unethical...
The rummaging through bins was practised both in relation to celebrities but also offices of newspapers and magazines. Ian Hislop [editor of Private Eye], for example, explained that the bins outside Private Eye had been searched and that, in due course, an article which probably derived from that rubbish appeared in one magazine. Mr [Alastair] Campbell told the Inquiry that he would wake up in the night with people going through his bins and Mr [Steve] Coogan had experienced similar instances with people going through his bins early in the morning.
I have concluded that the evidence seen and heard by the Inquiry is inconclusive, or insufficient, to find that bribery and corruption, blagging, theft and/or email hacking are cultural problems within the press today but there is sufficient arising out of what has been said and the present criminal investigation to merit concern. Further, the evidence of these practices, limited though it is, does support a wider conclusion that there is a cultural problem within parts of the press with regard to the use of unethical methods to acquire private information.
The slow and often inadequate response by large parts of the press to the widely known practice of phone hacking, considered alongside the inadequate response to the Operation Motorman revelations, indicates an industry which, in general, did not find it noteworthy or particularly problematic that parts of the press were regularly breaching individual privacy, not to mention the criminal law. In addition, the fact that large parts of the press continue to employ private investigators to carry out covert surveillance without any clear public interest supports the conclusion that, notwithstanding the evidence that phone hacking is likely to have ceased as a method employed by journalists, the press retains a casual (or less than robust) attitude to the use of unethical methods of acquiring private information.
Responses to criticism and complaints
Numerous individuals in public life have complained in evidence to the Inquiry that they have been afraid or unwilling to confront the power of the press, or – putting the matter another way, failings in the culture, practices and ethics of the press – owing to concerns about personal attack and vilification. The issue for consideration is not whether these fears are honestly held (given the weight of convergent evidence, this could not seriously be disputed) but rather whether the press has by its conduct caused, fostered or permitted such an 'atmosphere' to exist and be perpetuated whereby such fears have naturally spread.
The corpus of evidence relevant to this issue is vast, but for present purposes it can be considered in three parts. First, the Inquiry heard evidence of overt intimidation of those who had criticised the press. For example, after writing critical articles about the Daily Star in particular, and the tabloid press in general, Richard Peppiatt received threatening phone calls and text messages saying that he was "a marked man until the day you die". Similarly, while Hugh Grant was criticising tabloid press ethics while appearing on Question Time, the mother of his child was called and told to "Tell Hugh Grant to shut the fuck up". 2.41 Second, a significant number of the witnesses who testified during the first two weeks of Module One gave evidence of their fears of, or actual retaliation, by the press in response to complaints. JK Rowling made the point very compellingly in these terms:
"I would like to emphasise that what I'm about to say does not apply to the whole of the British press, but it is my experience with certain sectors of the British press. If you lock horns with them in this way, if you protest or you make a complaint, then you can expect some form of retribution fairly quickly, and I thought the fact that in this case a picture of my child was put into the papers, so very quickly after I'd asked them not to print my address, I thought that was spiteful, actually. Just spiteful."
The effects of intrusion
While phone hacking itself is a 'silent crime' inasmuch as the victim will usually be unaware of, or not even suspect, the covert assault on his or her privacy, its consequences – both direct and indirect – have often been serious and wide-ranging, as the evidence submitted to the Inquiry and separately generated by the phone hacking litigation has demonstrated. 3.4 The Inquiry has heard how the details of private lives, known only to the witnesses testifying (in other words, the targets of voicemail hacking) and their most trusted confidants and friends, became the subject of articles in the press.
Further, evidence was also received that, as a consequence of voicemail hacking, journalists and press photographers were able to record moments that were intensely private, such as relationship breakdown, or family grief, without either the knowledge or input of the individuals concerned. Sienna Miller explained how she was the subject of many articles either speculating on or reporting the state of her relationship with the actor Jude Law. In many cases, the information that had formed the basis of these articles had been known only to Ms Miller, Mr Law and a very small number of confidants who had not shared the information further.
Ms Miller gave a graphic description of the fall-out from the voicemail hacking which News International has, of course, admitted took place. This included the corrosive loss of trust in aspects of family life, in relationships and in friendships, Ms Miller assuming, understandably, that her inner circle was the source of stories in the press.
She described herself as "torn between feeling completely paranoid that either someone close to [her] [a trusted family member or friend] was selling this information to the media or that someone was somehow hacking [her] telephone." On one occasion she sat down with close family members and friends in one room and accused them of leaking stories to the press. Ms Miller explained that she felt that every area of her life was under constant surveillance; she felt violated, paranoid and anxious.
Other witnesses have told the Inquiry how they have lost friends and confidants as a consequence of the paranoia and mistrust engendered by phone-hacking. For example, Mary-Ellen Field described the damage done to her reputation and livelihood as the consequence of what she believed to be the hacking of Elle Macpherson's voicemail. Given the publication of a number of articles about Ms MacPherson which set out in detail confidential information concerning her personal and private life, of which Ms Field had direct knowledge, Ms MacPherson assumed that Ms Field must have been the source of those stories. Ms Field's refusal to acknowledge responsibility led to accusations of illness and then alcoholism for which she subsequently underwent treatment. Finally it was decided that Ms Field was incapable of carrying out her employment to the required standard and she was dismissed from her position. This led to financial difficulties and the loss of friendship. Ms Field has also made clear how difficult it has been to restore her reputation once such damage had been done...
The Inquiry has heard how the disclosure in the press of embarrassing or personal details not only impacts on the self-esteem and reputation of the person involved, but also affects others around them as well. For example, the spouses and children of witnesses have been subjected to bullying and abuse as a consequence of stories written about them. Garry Flitcroft described the abuse directed at his children at school following the publication of stories in the press about him. He detailed how abuse by rival fans was so hurtful and offensive that his father could no longer watch him play football; he also believes that this ultimately contributed to his father's suicide.
Witnesses have also spoken about the distress caused to spouses and partners by the aggressive pursuit of 'kiss and tell' stories and the knock-on effects of disclosures of infidelity. In a number of cases the disclosure of marital infidelity is believed to have led or contributed to a suicide attempt, or had a deleterious impact on the health of vulnerable members of the family. Charlotte Church said that her mother found articles published by the News of the World about her father's infidelity, without forewarning, so distressing that it led to an attempt take her own life. The Inquiry has heard similar testimony from Max Mosley, who has expressed the belief that the constant, unflattering and unpleasant coverage of him was a contributing factor in the suicide of his son.
The cultures of the News of the World
On account of the ongoing criminal prosecutions it is not possible for Part One of this Inquiry to investigate the allegations of illegal behaviour that surround the NoTW, and neither is it a matter for Part One to reach firm conclusions as to whether similar illegal behaviour has been engaged in elsewhere in given specified titles.
The Inquiry heard from a number of former employees of the newspaper who were in complete agreement that the newsroom at NoTW was a very pressurised environment and that reporters were under pressure to deliver stories, preferably exclusive stories, regularly. Mr McMullan said that the consequence of not getting sufficient bylines was that you would get fired.
Neville Thurlbeck (who had occupied a number of senior positions as a journalist on the NoTW) told the Inquiry: "there was a kind of an unofficial recognition that bylines were a reasonable performance indicator, and if your byline count was low, then obviously your job would be in jeopardy."
This picture of a newsroom under immense pressure was supported by anonymous evidence received from the National Union of Journalists (NUJ). As discussed below, such was the concern about the risk of repercussions for journalists giving evidence to the Inquiry that an application was made by the NUJ that I should be prepared to receive evidence anonymously. I acceded but, inevitably, treat the resulting evidence far more cautiously as a consequence. One journalist wrote that there was tremendous pressure at the NoTW, that everyone talked about the byline count and reporters had to do what they needed to get the story.
Another said "The NoTW was an incredibly tough and unforgiving workplace" and described seeing three or four members of staff collapse in the office in consequence, at least in part, from stress, as well as himself or herself having suffered from severe stress. Sharon Marshall described the NoTW as 'a very tough working environment' where you literally would not know what the person next to you was doing.
Ian Edmondson was the news editor at the NoTW for much of the relevant period. He agreed that there was a culture of bullying, saying that it emanated from the editor. He said this was true even for senior executives such as himself: "It's not a democracy at a newspaper. Autocratic."
A number of the journalists providing evidence anonymously through the NUJ echoed this perception, including one who described repeated bullying of themselves and colleagues,and another who described what amounted to bullying of Clive Goodman. A third described a 'systematic regime of bullying' at the NoTW.
These journalists describe their experience of being bullied and seeing others bullied in graphic detail. Steve Turner, of the British Association of Journalists gave evidence of at least three cases, other than Mr Driscoll, of bullying at the NoTW in each of which:
"... the journalist was unreasonably subjected to disciplinary proceedings, realised that the newspaper felt his face did not fit any more and that they were trying to drive him out, and asked him if a severance package was available to resolve the matter."
Others disagreed. Mr Sanderson was clear that he did not recognise the picture painted by other witnesses of a bullying culture at the title. Another, Dan Wootton (who worked in Features before becoming TV editor and then Showbiz editor) was confident that he had experienced no bullying culture at the NoTW, although he ascribed this to his having worked on the Features desk and to different parts of the paper having different cultures.
Rupert Murdoch said that he was not aware of any allegations of bullying at NoTW or within NI, stating "they always strike me as a very happy crowd,"but made it clear that the type of conduct found to have occurred in the Driscoll case had no place in NI newsrooms.
Kate and Gerry McCann
It is appropriate to take the experience of the McCanns as a 'case study' warranting further examination for the light it throws on the culture, practices and ethics of the press. Their case is also highly illuminating in the context of the action, or rather the inaction, of the PCC…
The McCanns were … treated as if they were a commodity in which the public, and by extension the press, had an interest or stake that effectively trumped their individual rights to privacy, dignity or basic respect. The press believed that the public's legitimate interest in the story was insatiable, and that belief required it to sustain that interest by following every possible development or turn, however implausible or apparently defamatory… Like the Dowlers, the McCanns were the victims of grossly intrusive reporting, prying photographers and an ongoing 'media scrum' which paid little or no regard to their personal space, their own personal distress and, in particular, the interests of Madeleine's younger siblings…
The protracted spate of defamatory reporting commenced in September 2007 and had to be endured by the McCanns over four torrid months ending in January 2008. It only stopped after the McCanns were driven to take legal action against the worst perpetrators. It is well known that British newspapers were relying on reports in Portuguese journals and other sources which were either associated with, close to, or directly part of the PJ. But, as the McCanns themselves explained, the British press often did not know the source; or did not know whether it was accurate, exaggerated or downright untruthful; or (as the McCanns believed) sometimes made up.
A number of titles were guilty of gross libels of the McCanns and of serious and total failure to apply anything approaching the standards to which each has said they aspire.
For that reason, the nature of the errors perpetrated by certain sections of the press will be explored, but at this stage it is sufficient to make the observation that, aside from the gross inaccuracy of the reporting in issue, some of it was, to put it bluntly, outrageous. One particular piece in the Daily Star published on 26 November 2007 certainly justifies being so described and Dr McCann was moved to go yet further:
Q. "Maddie 'sold' by hard-up McCanns." This is the article you do refer to, the selling into white slavery allegation. Probably you don't want to dignify that with a comment?
A. That's noting short of disgusting.
Mrs McCann: I think this same journalist, if memory serves right, also said we stored her body in a freezer. I mean, we just...
Lord Justice Leveson: Just to make the comment, there's absolutely no source for that assertion in the article."
In January 2008, letters before action were sent to a number of newspapers. The first response came from Northern & Shell, on behalf of the Daily Express, on 7 February. According to Dr McCann, the Express rejected the complaint on the straightforward ground that the McCanns were arguidos, but the paper suggested that they do an interview with OK! magazine; this was an offer which was rightly (and without any exaggeration) characterised by Dr McCann as 'rather breathtaking'.
On Christmas Day 2010, [the body of Joanna Yeates] was found at the edge of a quarry… The Avon and Somerset Constabulary opened a large-scale murder investigation and press interest in the story was, understandably, massive. … Christopher Jefferies [Joanna's landlord] was invited to assist the police with their inquiries, and he voluntarily provided two witness statements. Totally out of the blue as far as he was concerned, at about 7am on 30 December 2010 Mr Jefferies was arrested by officers of Avon and Somerset Constabulary and then taken into custody for questioning. This lasted for three days, whereupon Mr Jefferies was released on police bail. On 22 January 2011 Vincent Tabak was arrested on suspicion of murder, and … he was convicted of Ms Yeates' murder on 28 October 2011.
… Damaging articles [about Mr Jefferies] appeared in the press between 31 December 2010 and 2 January 2011. Mr Jefferies' own characterisation of this material was that it amounted to a 'frenzied campaign to blacken my character', and contained the 'wildest flights of fantasy'.
Mr Jefferies gave evidence about what he called the 'eight worst offending articles' which were published in six separate newspapers over a three day period.
Three of these featured in contempt of court proceedings brought by the Attorney General in July 2011, which was after it had been conclusively established that Mr Jefferies could not have been the killer. In the result, News Group Newspapers (NGN) Ltd was fined £18,000 in respect of an article published in The Sun on 1 January 2011, and Mirror Group Newspapers (MGN) Ltd was fined £50,000 in relation to articles published in the Daily Mirror on 31 December 2010 and 1 January 2011 respectively.
It is unnecessary to dwell on the language and tone of the 'offending articles'. It is sufficient to draw on their characterisation by the Lord Chief Justice in the contempt proceedings. As for the article published in The Sun on 1 January 2011, Lord Judge said:
'The articles in the one issue of The Sun were written and laid out in such a way that they would have conveyed to the reader of the front page and the two inside pages over which the stories were spread that he was a stalker, with an obsession with death, who let himself into the flats of other occupants of the building where Miss Yeates lived, and that he had an unhealthy interest in blonde young women.... Although the articles contain statements or words which could be said to have been favourable to Mr Jefferies, these were quite insufficient to counter the way in which the spread of the articles, and their content, associated Mr Jefferies with this murder. These articles would have certainly justified an abuse of process argument, and although their effect is not as grave as that of two series of articles contained in the Mirror, the vilification of Mr Jefferies created a very serious risk that the preparation of his defence would be damaged...'
And as for the articles published in the Daily Mirror on 31 December 2010 and 1 January 2011, he went on:
'The material in the two publications of the Daily Mirror is extreme. True, it does not positively assert that Mr Jefferies was guilty of involvement in paedophile crimes, or the unsolved murdered many years earlier. It is submitted that the articles were unflattering, suggesting that he was an eccentric loner. So they were. But they went very much further. It was asserted, in effect directly, that his standard of behaviour, so far as sexual matters were concerned was unacceptable, and he was linked to both the paedophile offences and the much earlier murder offence. That indeed was the point of the articles. The juxtaposition of the photographs of two murdered women, together with the layout of the places where they died in proximity to Mr Jefferies home, was stark. And in the context of the murder of Miss Yeates herself, the second article implied that Mr Jefferies was in a particularly convenient position, as her landlord, to have gained access to her premises to commit a murder, according to the article, committed by an intruder...'
Ultimately, Mr Jefferies successfully brought proceedings for defamation against eight newspapers in relation to allegations contained in 40 separate articles.
At the hearing before Mr Justice Tugendhat on 29 July 2011 when the libel settlements were announced, Mr Jefferies' solicitor said this:
''Christopher Jefferies is the latest victim of the regular witch hunts and character assassination conduct by the worst elements of the British tabloid media. Many of the stories published in these newspapers are designed to 'monster' the individual, in flagrant disregard of his reputation, privacy and rights to a fair trial."
The Sun and the Browns' son's illness
In November 2006 The Sun published private medical information about the son of the then Chancellor of the Exchequer, the Rt Hon Gordon Brown MP. At the time of publication, Mr Brown's son was four months old, and the story reported his diagnosis of cystic fibrosis. The Inquiry heard extensive evidence in relation to this story and, because of the light it throws on a number of aspects of the culture, practices and ethics of the press, it is appropriate to address it in some detail. The factual disputes which arose during the course of the evidence will only be resolved to the extent necessary to illuminate the culture of the press in general.
For example, there is considerable dispute between the then editor of The Sun, Rebekah Brooks and Mr Brown as to how the story was sourced in the first place. For a number of reasons which will be explained, it is simply not possible to resolve that dispute on the available evidence, and it would have been difficult to do so even had the Inquiry decided to investigate the story in depth and require further evidence to be provided. What is not in dispute is that there was no public interest in the story sufficient to justify publication without the consent of Mr and Mrs Brown. The medical information published by the newspaper was private information about a very young child and it therefore deserved the utmost protection. Prior to publication, only a small handful of doctors, other health workers and family members ought to have been, and the Browns would say were, aware of the diagnosis, and it would have been obvious to anyone in possession of the information that it was highly sensitive and not to be disclosed without consent.
In July 2011, at the height of the phone hacking scandal, Mr Brown made further allegations as to how The Sun might have obtained the material for the original 2006 story. The response… published in The Sun on 13 July 2011, stated that the source of the original story was a 'shattered dad whose own son has the crippling disease and who wanted to highlight the plight of sufferers'. Although the article contains the categorical denial of this gentleman that he had seen confidential medical records ('all of which is the truth as I shall answer to God'), it is not specific as to how he had come about this information, save to allege that 'he has links with the Brown family'.
Mrs Brooks was asked to explain this lack of specificity when she gave evidence. Her account was as follows:86''Q. How had he got the information?A. He'd got the information because his own child had cystic fibrosis and he'd got the information, I should say, through a very small – it's not a small charity, but there is a charity aspect to the Cystic Fibrosis Society, and he got it slightly by involvement through there.
Q. What sort of involvement?
A. Mr Jay, I'm not going to tell you any more about the source because I don't want to reveal his identity.
Q. But you're not.
A. Well, I feel uncomfortable answering that because I think it could lead to his identity. You're asking me where information came from and the source, and I think they are matters that I have to respect in a source coming to the newspaper. The main point of this issue is Mr Brown accused the Sun of hacking into his son's medical records to get this story and that wasn't true.
Lord Justice Leveson: It wasn't accurate?
A. No, sorry, it wasn't accurate."
Although the matter was pursued further with her, Mrs Brooks was adamant in her refusal to breach the confidentiality of the source. Without knowing more of the background circumstances, and exactly how the source had apparently obtained the information from the charity mentioned, the Inquiry is not in a position to judge whether Mrs Brooks' refusal to answer further questions – on the ostensible basis that the source's identity might be disclosed – was justified or not. Further, the possibility that the source, (assuming he existed), obtained this information by unlawful or unethical means has not been overlooked, but here again the Inquiry is in no position to make a finding.
Phone hacking at the Mirror under Piers Morgan
Mr Morgan was... asked about an interview which he gave to the Press Gazette in 2007, in which he said this:
"As for Clive Goodman, I feel a lot of sympathy for a man who has been the convenient fall guy for an investigative practice that everyone knows was going on at almost every paper in Fleet Street for years."
When asked to clarify that evidence, Mr Morgan's explanation was as follows:
'Well, that was the rumour mill at the time. I mean, it was exploding around Fleet Street. I wasn't there, I hadn't been there for three years, but everyone you talked to said that he was being made a scapegoat, that this was a widely prevalent thing. I wasn't aware that it was widely prevalent in any specific form. I was hearing these rumours like everybody else. The reality is that it certainly seems to have been much more widespread at one newspaper, and we now know that the Guardian also phonehacked, so you had two newspapers. So it's certainly wider apparently than just Clive Goodman, but I'm not going to get into rumour-mongering because that's not really the point of this Inquiry, I don't think.
Q. But were you rumour-mongering when you had the interview with the Press Gazette in 2007 or were you speaking from your own experience?
A. No, I was just passing on rumours that I'd heard.
Q. Was this a practice which, if we may add a third newspaper to the mix, was taking place within the Daily Mirror before 2004?
A. I do not believe so, no.
Q. You don't believe so, or you're sure?
A. I don't believe so. To the best of my recollection, I do not believe so.'
This was not, in any sense at all, a convincing answer. Mr Morgan could not even resist a further side-swipe at the Guardian (he had earlier referred to that title as the self-appointed bishops of Fleet Street), perhaps in an attempt to draw attention away from the broader ramifications of the question. When linked with other evidence, his reference to 'the rumour mill' somewhat downplayed the quality of the evidence incriminating the industry as a whole. And Mr Morgan chose his words very carefully when asked to speak about the Daily Mirror. Overall, Mr Morgan's attempt to push back from his own bullish statement to the Press Gazette was utterly unpersuasive.
There were two particular cases of surveillance which stood out from …[the] evidence [of the private investigator Derek Webb]: both were notable because they involved opponents or campaigners against the NoTW's involvement in phone hacking.
The rationale for the surveillance of Ms Harris and Mr Lewis was the concern, shared by Julian Pike at Farrers, solicitors then acting for NoTW, and Mr Crone, that they were not respecting confidentiality agreements relating to phone hacking settlements and that this was detrimental to NGN's position. They further concluded that the right course of action was to try to prevent Ms Harris and Mr Lewis from acting in subsequent cases. One of the tools in this campaign was to be surveillance, to identify the nature of the relationship between the two solicitors that might lend circumstantial support to the allegation that they were exchanging confidential information.
Mr Pike said that he was aware that the NoTW had put Ms Harris and Mr Lewis under surveillance. He defended the decision to do so, saying that he would do the same again in the same Circumstances.He claimed not to know that the surveillance was not being carried out by a journalist.
Mr Crone asserted that he did not commission private investigators to watch Ms Harris and Mr Lewis, but instead had agreed that Mr Webb would be asked to "ascertain the nature of the relationship" between them.
Mr Edmondson told the Inquiry that the surveillance of Ms Harris made him uncomfortable because it was not something which was likely ever to lead to a publishable story.
He said that he raised this with Mr Crone and that: "Tom Crone's response was that he accepted that, namely that it was unlikely material for inclusion in the newspaper as a story, but told me that the main reason to investigate was that it could provide the newspaper with good leverage against the two individuals."
Mr Crone continued to maintain, despite being the only witness before the Inquiry to believe it, that Mr Webb was employed as a freelance journalist,though he did accept that in undertaking the specific task of surveillance of Mr Lewis and Ms Harris he was "doing something for the legal department."
This whole saga reflects poorly on all involved. The use of covert surveillance against solicitors representing the opposition in damaging litigation is dubious at best, particularly when it seems clear that the surveillance was commissioned in order to put pressure on the solicitors to withdraw from the litigation. It is a case of attacking the man and not the ball. Mr Crone must, ultimately, take final responsibility. Despite his efforts to persuade the Inquiry to the contrary, in my judgment he well knew that Mr Webb was not carrying out proper journalistic functions. Additionally, it was primarily his decision to engage Mr Webb to conduct discreet surveillance of Mr Lewis and Ms Harris in circumstances where there was no conceivable journalistic or other justification to do so: this was clearly in breach of their Article 8 rights.
The second notable example of NoTW surveillance is equally dubious. Tom Watson MP, arguably the most energetic of the anti-hacking MPs, and a member of the Culture Media and Sport (CMS) Select Committee was placed under surveillance during the investigation by the CMS Committee of phone hacking. As far as Derek Webb was concerned he was asked to try to prove an alleged affair (there was no affair).
The surveillance seems to have been part of an orchestrated attempt to put pressure on Mr Watson to step back from the hacking issue. Around the same time as the surveillance was commissioned, Lord Mandelson confirmed that Rebekah Brooks had asked him for Mr Watson and others on the Select Committee to be "pulled off" the hacking issue.
The PCC and phone hacking
On 1 February 2007 [following the conviction of Goodman and Mulcaire] Sir Christopher Meyer announced that the PCC would be taking steps to ensure that the public could be satisfied "that lessons have been learned from this episode, both at the newspaper and more generally".219 The PCC committed to explore three things:"First, we are writing to the new editor of the News of the World with a number of questions, including what he will be doing to ensure that the situation involving Mr Goodman and Mr Mulcaire does not recur. Second, we will be writing to the editors of national and regional newspapers and magazines to find out the extent of internal controls aimed at preventing intrusive fishing expeditions; and what is being done to instil understanding both of the Code of Practice and the law in this area, and also of journalistic public interest exemptions. The Data Protection Act has an obvious relevance here. Third, the board of the Commission will consider these industry responses with a view to publishing a review of the current situation, with recommendations for best practice if necessary, in order to prevent a similar situation arising in the future. This is in line with its duty to promote high professional standards of journalism."
The 2007 investigation was primarily forward looking. The PCC did not set out to discover whether the type of illegal activity which Messrs Goodman and Mulcaire had engaged in was more widespread than the activity of a single rogue reporter in a single newspaper.
The PCC chose not to engage in a more wide-ranging investigation despite the sentencing remarks of Mr Justice Gross which referred to contact between Mr Mulcaire and "others" at the News of the World;220 and the allegation from the Daily Mail that Mr Mulcaire was being paid £200,000 per annum by the NoTW...
The PCC did not interview the former editor of the NoTW, Andy Coulson, in its preparation for the 2007 report or indeed ask him to provide written evidence to the investigation. It is surprising that the PCC was content to direct its questions at Mr Myler, a man who had only taken over as editor of the NoTW a matter of weeks before answering the PCC's questions; had never worked there before, and until he took over as editor of the NoTW had been living and working in New York. In the 2007 report, the reason given for the failure to interview or otherwise question Mr Coulson was that he had resigned from the editorship of the NoTW and therefore no longer came under the PCC's jurisdiction …
The process of the investigation revealed the extent to which the PCC's capacity to operate as a standards regulator was constrained by industry control. An email from Eve Salomon, one of the lay commissioners at the time, to Mr Toulmin on 2 May 2007, questioned the proposal that the PCC should work to raise standards in respect of data protection within the press:231"I remain wary, as calling newspapers generally to account like that strikes me as entering into another level of regulation. Fine if the industry wants it, but we don't want to alienate everybody! If we do say something, my suggestion would be something like we will be contacting the industry again in 6 months to ask what changes they have made in the light of our report."
Despite the questioning of NoTW representatives being limited to prospective changes, and the failure to draw upon material which might have indicated otherwise, at least inferentially, the 2007 report purported to come to conclusions about the prevalence of phone hacking within the industry:232"No evidence has emerged either from the legal proceedings or the Commission's Questions to Mr Myler and Mr Hinton of a conspiracy at the newspaper going beyond Messrs Goodman and Mulcaire to subvert the law and the PCC's Code of Practice. There is no evidence to challenge Mr Myler's assertion that: Goodman had deceived his employer in order to obtain cash to pay Mulcaire; that he had concealed the identity of the source of information on royal stories; and that no-one else at the News of the World knew that Messrs Goodman and Mulcaire were tapping phone messages for stories."
Later in the 2007 report, the PCC once again appeared to accept the position that phone hacking was limited to those who had already been prosecuted, saying that "[t]he Commission's role here has been additional to the law, which has already investigated, prosecuted and punished the people responsible for the phone message tapping."233 The PCC did not ask questions designed to find out whether or not phone hacking had been more widespread than originally supposed. Instead, the 2007 report appeared to exonerate the NoTW from any suggestion that phone hacking had been more widespread than acknowledged…
The effect of the PCC's 2007 report was to take the heat out of calls for further investigation or reform of the system of self-regulation. In November 2007 Sir Christopher wrote to Tim Bowdler, then Chairman of PressBoF, in the following terms:237"I have to say that … I was extremely worried by the possible political fall-out from the Goodman/Mulcaire case and the damage this could do to self-regulation. [The PCC's report into Subterfuge and Newsgathering] put a premium on responding fast, comprehensively and effectively. Despite some carping at our decision not to interview Andy Coulson, the report has gone down well, effectively killing the case as an issue in Westminster and Whitehall. It has, as you know, been welcomed by the Government, the Opposition and the Select Committee; and, I believe, has contributed to the current and welcome bipartisan consensus behind self-regulation and against a privacy law, buttressed by the Prime Minister himself."
It is frankly difficult to avoid the conclusion that with the publication of the Report on Subterfuge and Newsgathering, not only was yet another chance for the self-regulatory system to reform itself was missed, but the PCC actively attempted to avoid external scrutiny that might have increased pressure for reform of the system from elsewhere…
On 9 July 2009, the Guardian published an article entitled "Revealed: Murdoch's £1m bill for hiding dirty tricks."238 The substance of the article was that News Group Newspapers (NGN) had paid over the odds to settle phone hacking cases in order to try to secure confidentiality. The article revealed that one of the cases involved Gordon Taylor, the former Chief Executive of the Professional Footballers Association. In a separate comment piece printed in the Guardian on the same day, Mr Davies challenged the 'one rogue reporter' defence which had been advanced by News Group Newspapers (NGN) since the allegations about Clive Goodman's conduct were revealed.
In response to the allegations, the PCC issued a press statement announcing that it would seek further information about the allegations from the Guardian and from the Information Commissioner. The PCC did so and eventually prepared a report based on those findings published on 9 November 2009.
The 2009 report concluded: "The PCC has seen no new evidence to suggest that the practice of phone message tapping was undertaken by others beyond Goodman and Mulcaire, or evidence that News of the World executives knew about Goodman and Mulcaire's activities. It follows that there is nothing to suggest that the PCC was materially misled during its 2007 inquiry".
The 2009 report's conclusions preferred the accounts of the police to the allegations of widespread phone hacking contained in the Guardian: "Set against the Guardian's anonymous sources are a significant number of on the record statements from those who have conducted inquiries, and have first hand knowledge of events at the newspaper. While people may speculate about the email referencing 'Neville', the Taylor settlement, and the termination payments to Mulcaire and Goodman, the PCC can only deal with facts available rather than make assumptions."
The 2009 report concluded by observing that: "…the Commission could not help but conclude that the Guardian's stories did not quite live up to the dramatic billing they were initially given…
The report and a subsequent speech by Baroness Buscombe to the Society of Editors,267 also angered Mr Taylor's former solicitor Mr Lewis to the extent that he successfully pursued proceedings for libel.
How much did the Murdochs know?
The extent of James Murdoch's knowledge of the allegations [made by Mr Goodman in his appeal against dismissal] is not clear. There was a discussion between Mr Myler and James Murdoch of which neither participant claims to have a substantial recollection. However, Mr Pike made a note of a subsequent telephone conversation that he had with Mr Myler on 27 May 2008, during which Mr Myler relayed to Mr Pike what he explained were the relevant points of his conversation with James Murdoch. The note is not straightforward to interpret. It makes reference to the fact that Mr Goodman "sprayed around allegations" but it is not clear whether that was a reference to what had been discussed with James Murdoch or to the beginning of a subsequent discussion between Mr Myler and Mr Pike. James Murdoch contended that the note of his conversation with Mr Myler did not go beyond recording his view that they should wait for the opinion of leading Counsel, which had already been sought.410 James Murdoch said in evidence that Mr Myler had not taken the opportunity to alert him to the fact that there were allegations that voicemail interception at the News of the World went wider than Mr Goodman.
There is also a dispute about how high within the organisation the advice from Mr Silverleaf [that there was a culture of illegal information access at the News of World] was seen. There is no doubt that Mr Crone read it. Mr Myler said in evidence that he was told the gist of it but did not see the actual advice and was not told that Mr Silverleaf's opinion was that there was a "powerful case that there is or was a culture of illegal information access used at NGN in order to produce stories for publication."
James Murdoch said that the opinion of Mr Silverleaf was mentioned to him but not shown to him (which he explains is not unusual as the Chief Executive), and that he was not told that there was new evidence that NGN's involvement in voicemail interception went beyond Mr Goodman.
What is clear is that, even following the unequivocal opinion of Mr Silverleaf, no action was taken to investigate whether there was a culture of obtaining information by unlawful means. Instead, the full focus of the management team was on handling the litigation and the potential reputational repercussions.
On 7 June 2008 Mr Myler forwarded an email chain to James Murdoch which made clear that Mr Taylor was asserting that unlawful information gathering techniques were "rife within the organisation". The message from Mr Myler read: "James, update on the Gordon Taylor Professional Football Association case. Unfortunately it's as bad as we feared. The note from Julian Pike of Farrers is extremely telling regarding Taylor's vindictiveness but again that speaks for itself. It would be helpful if Tom Crone and I could have five minutes with you on Tuesday."
James Murdoch explained in evidence that he did not read all the email chain, and did not read the specific allegation made by Mr Taylor because he received the email on a Saturday when he was with his family. He said that since he was due to meet Mr Myler to discuss the issue on the following Tuesday he did not feel he needed to read beyond the request for a meeting.416 James Murdoch replied to the email within two minutes of receiving it. The speed and content of his reply appear to support his claim not to have focused on the key allegation.
On 10 June 2008, Mr Myler, Mr Crone and James Murdoch met to discuss the civil claim brought by Mr Taylor. Mr Crone said in evidence that he probably took with him copies of Mr Silverleaf's opinion, the pleadings from the case, spare copies of the front page of the "for Neville" email and his earlier briefing note. Crone said that he could not recall whether any of these documents were handed to James Murdoch but that he was "pretty sure" that he held up the front page of the "for Neville" email.
Mr Crone was very clear that the "for Neville" email was discussed, and that James Murdoch was told that it was direct and hard evidence of involvement in voicemail interception beyond Mr Goodman and Mr Mulcaire.419 Mr Myler said that he did not have any useful recollection of what specifically was discussed at the meeting or what documents were discussed or shared.
James Murdoch said in evidence that he was told at the meeting that there was evidence that linked the interception of Mr Taylor's voicemail messages to the NoTW and that the case would certainly be lost and should be settled. His recollection was that Mr Crone and Mr Myler told him that counsel's advice on the level of settlement was that: "the number could be upwards of … £425,000, so they said half a million to a million pounds with costs in it."
James Murdoch said that it was established at the meeting that it was better to settle at an amount that would avoid litigating a case that would be lost than "drag up all these things, a painful episode in the past and what not".420 He also stated that the discussion about the "for Neville" email was limited to the fact that it linked the NoTW to the interception of Mr Taylor's voicemail messages and that there was no discussion about the fact that it suggested the involvement of other NoTW journalists. He said that he was not shown a copy of the email or the opinion of Mr Silverleaf, nor told that the opinion of Mr Silverleaf was that there was evidence that the practice of voicemail interception was used by journalists other than Mr Goodman.
Given the significance of the issue, it is necessary also to deal with the extent to which Rupert Murdoch had knowledge of the relevant facts. Rupert Murdoch said in evidence that he knew nothing of the settlement of the claim brought by Mr Taylor when it happened in 2008. He said that he first learned of it in 2009 and was very surprised by the size of the settlement.423 He recalled discussing with James Murdoch why the settlement was so high, but denied that there was any discussion about the fact that Mr Taylor had evidence of further illegality at NoTW or that NGN had had to settle at that level to buy the silence of Mr Taylor. He said that James Murdoch's explanation for the value of the settlement was that, though high, it was less than the anticipated cost of a full trial.
Rupert Murdoch claimed that senior management at NI:425 "…were, all misinformed and shielded from anything that was going on there... there's no question in my mind that maybe even the editor, but certainly beyond that someone took charge of a cover-up which we were victim to".
He went on to say that the culture of cover-up emanated from: "one or two very strong characters - or the person I'm thinking of - was a clever lawyer and forbade people to go and report to Mrs Brooks or to James."
Both Mr Myler and Mr Crone strongly denied that there was a culture of cover up at the NoTW. Mr Crone accepted that everyone hoped that "it would all go away" if it could be kept quiet, but contended that the thinking was not to cover up criminality but to avoid reputational damage through bad publicity. There is undoubtedly a fine line between the two. Mr Myler, similarly, said: "I don't believe it was a cover-up….and I don't believe it's wrong or unreasonable of any business to try to protect the reputation of itself, particularly after what had happened in the course of 2006 and 2007."
Whatever the truth of what was discussed on 10 June 2008, the evidence outlined above points to a serious failure of governance within the NoTW, NI and News Corporation. There was a failure on the part of the management at the NoTW to take appropriate steps to investigate whether there was evidence of wrongdoing within the organisation. Although I endorse the right of any business to seek to protect its reputation, it surely must first take every step to get to the bottom of what had happened. To argue that the decision by the police to conclude their criminal investigations precluded the requirement for a proportionate but robust internal investigation is, in the circumstances, of real concern; and the attitude at NoTW to the police investigation equally meant that reliance could not be put on their having done so. In any event, if the explanation of James and Rupert Murdoch is correct, far from simply limiting external damage to reputation, one or more parts of the management at the NoTW was engaged in a determined cover-up to keep relevant information about potential criminal activity within the organisation from senior management within NI.
Having made that point, however, I must make it clear that if James Murdoch was unaware of the allegations, his lack of knowledge is, at least in part, only as a result of chance, rather than as the consequence of a sustained campaign by Mr Myler or Mr Crone (if there was one) deliberately to keep him in the dark. The fact is that had he read, in detail, the entirety of the email that he received on 7 June 2008, there was sufficient to put him onto a line of enquiry which could have led to an investigation of the entire issue. It also depends on precisely what he was told on 10 June 2008.
It is sufficient to say that if James Murdoch had been the victim of a cover-up, or an attempt to minimise the gravity of the position, then the accountability and governance systems at NI would have to be considered to have broken down in an extremely serious respect. If James Murdoch was not the victim of an internal cover up then the same criticism can be made of him as of Mr Myler or Mr Crone in respect of the failure to take appropriate action to deal with allegations of widespread criminality within the organisation.
A similar analysis stands in respect of News Corporation. Although there is no evidence from which I could safely infer that Rupert Murdoch was aware of a wider problem, it does not appear that he followed up (or arranged for his son to follow up) on the brief that he believed had been given to Mr Myler to "find out what the hell was going on", leaving the matter solely in the hands of Mr Hinton. If News Corporation management, and in particular Rupert Murdoch, were aware of the allegations, it is obvious that action should have been taken to investigate them. If News Corporation were not aware of the allegations which, as Rupert Murdoch has said, have cost the corporation many hundreds of millions of pounds, then there would appear to have been a significant failure in corporate governance and in particular in the effective identification and management of risks affecting NI and, thus, the corporation.
I have given careful consideration as to whether I should go further, and conclude that Mr Crone's version of events as to what occurred on 10 June 2008 should be preferred to that of James Murdoch. There are aspects of the account of Mr Murdoch that cause me some concern: in particular, it is surprising if the gist of Mr Silverleaf's opinion was not communicated to him in circumstances where the potential reputational damage to the company, of which he was CEO, was likely to be great if an early settlement of the claim brought by Mr Taylor were not achieved.
The press and the police
For some time before January 2011, there was a concern that a number of senior officers within the Metropolitan Police Service had become too close to News International and its staff and that this has led, perhaps intuitively, to a rather greater reluctance fully to investigate what had happened at the News of the World. The failure to ensure that those who might have been the subject of phone tapping were informed, the incredibly swift dismissal of the allegations in the Guardian article of 9 July 2009, the continued defensive mindset over the months and the dismissal of the New York Times (without ever scoping the exercise of reconsidering the material seized from Glenn Mulcaire) and, subsequently, the evidence of the friendship between Assistant Commissioner John Yates and Neil Wallis, at the relevant time deputy editor of the paper all contributed to that concern. It is entirely understandable.
Because of its importance to the reputation of the Metropolitan Police, each step of the way in which Operation Caryatid was executed and later reviewed has been analysed in great detail.
In reality, I am satisfied that I have seen no basis for challenging at any stage the integrity of the police, or that of the senior police officers concerned. What is, however, equally clear is that a series of poor decisions, poorly executed, all came together to contribute to the perception that I have recognised…
A misunderstanding both as to what had to be proved to establish an offence under the Regulation of Investigatory Powers Act 2000 and what other offences might have been committed led to an inadequate strategy to inform those who could be classed as victims or targets of phone hacking; in any event, that strategy was not properly implemented. Neither was anything done to distance the police from the 'one rogue reporter' defence.
Although he was a very experienced police officer, I regret that Assistant Commissioner Yates did not reflect on whether he should be involved in an investigation into the newspaper at which he had friends, including one who was the deputy editor (in circumstances in which decisions by the Metropolitan Police and the Crown Prosecution Service were coming under scrutiny). He would have been better advised to arrange for a different officer to conduct it. That is even more so when he decided, within hours and before the case papers had been recovered and could be properly reviewed, that there were no grounds for reviewing the decision: errors of recollection were inevitable and they were made. Furthermore, publicly to announce that conclusion, on camera, on the same day meant that there was no turning back. A defensive mindset was then established which affected all that followed.
In 2006, the decision to limit the prosecutions at that time was clearly justifiable. Unfortunately, the approach of the police and some of the decisions made in the period 2006-2010 can be characterised as insufficiently thought through (and, in any event, not followed up or taken forward), wrong and unduly defensive (and not merely with the benefit of hindsight). Accepting, however, the relationship between Mr Yates and Mr Wallis (which was not in issue), there is no evidence to suggest that anyone was influenced either directly or indirectly in the conduct of the investigation by any fear or wish for favour from News International. The mistakes were neither more nor less than that: the integrity of the officers who gave evidence and were directly involved in the investigation shone through what they said and I do not doubt it. …
The press and politicians
Taken as a whole, the evidence clearly demonstrates that, over the last 30-35 years and probably much longer, the political parties of UK national Government and of UK official Opposition, have had or developed too close a relationship with the press in a way which has not been in the public interest. In part, this has simply been a matter of spending a disproportionate amount of time, attention and resource on this relationship in comparison to, and at the expense of, other legitimate claims in relation to the conduct of public affairs. In part, it has been a matter of going too far in trying to control the supply of news and information to the public in return for the hope of favourable treatment by sections of the press, to a degree and by means beyond what might be considered to be the fair and reasonable (albeit partisan) conduct of public debate.
On the other hand, politicians (supported by some academic commentators) have argued that this has been necessary to counteract the attempts of some sections of the press to discredit their motives and distort the policies that they seek to promote. I have concluded that in these kinds of respect, growing public awareness and impatience is simply making this kind of conduct counter-productive for politicians (if not for the press) in the critically important attempt to seek public trust and confidence. I need do no more than draw attention to that fact.
There are other respects, however, in which the evidence suggests that politicians have conducted themselves in relation to the press in ways which have not served the public interest. They have placed themselves in positions in which they risked becoming vulnerable to influences which are neither known about nor transparent. There is thus no mechanism for holding them to account (which is, of course, the usual responsibility of the press itself). The result has been to create what was, at least potentially, a perception of conflict with their responsibilities in relation to the conduct of public affairs. A number of clear opportunities to address this perception have been missed and there has been a persistent failure to respond more generally to public concern about the culture practices and ethics of the press.
I have concluded that a combination of these factors has contributed to a lessening of public confidence in the conduct of public affairs, by giving rise to legitimate perceptions and concerns that politicians and the press have traded power and influence in ways which are contrary to the public interest and out of public sight. These perceptions and concerns are inevitably particularly acute in relation to the conduct by politicians of public policy issues in relation to the press itself...
As a first step, political leaders should reflect constructively on the merits of publishing on behalf of their party a statement setting out, for the public, an explanation of the approach they propose to take as a matter of party policy in conducting relationships with the press.
Party Leaders, Ministers and Front Bench Opposition spokesmen should consider publishing: (a) the simple fact of long term relationships with media proprietors, newspaper editors or senior executives which might be thought to be relevant to their responsibilities and,
(b) on a quarterly basis:
i. details of all meetings with media proprietors, newspaper editors or senior executives, whether in person or through agents on either side, and the fact and general nature of any discussion of media policy issues at those meetings; and
ii. a fair and reasonably complete picture, by way of general estimate only, of the frequency or density of other interaction (including correspondence, phone, text and email) but not necessarily including content.
Politicians and Rupert Murdoch
Mr Murdoch denied on several occasions that he made any express deals with politicians, and the available evidence does not prove that he ever did. This, however, is not the end of the story… If Mr Murdoch made no express deals with politicians within government, the question which arises is whether he made any implied deals or reached tacit understandings with those who engaged with him… All the politicians who gave evidence before the Inquiry said that Mr Murdoch exercised immense power and that this was almost palpable in their relations with him. Mr Blair spoke in terms of his acute awareness of the power that was associated with him. This is not to say that Mr Murdoch set out to wield power or that his personal manner was other than amicable and respectful in his dealings with politicians. But it is to say that he must have been aware of how he was being perceived by his interlocutors; to suggest otherwise would be to suggest that Mr Murdoch knows little about human nature and lacks basic insight, which could not, of course, be further from the truth... Mr Murdoch was … well aware that political support was what his interlocutors were seeking.
Equally, politicians were well aware that 'taking on' Mr Murdoch would be likely to lead to a rupture in support, a metaphorical declaration of war on his titles with the inevitable backlash that would follow. What might count as taking him on would have to be seen from Mr Murdoch's point of view, and in the context of a continuing and complex relationship. Mr Murdoch knew this too. These factors, taken together, would be likely to lead to an appreciation of the consequences both of disturbing the status quo as regards the regulation of the press and, more broadly speaking, of adopting policies which would damage Mr Murdoch's commercial interests. Politicians' interests, in other words, would find themselves highly aligned with Mr Murdoch's.
Jeremy Hunt and the BskyB bid
In every respect bar one, the bid was commendably handled. Unfortunately, there was a serious hidden problem which, had the bid ultimately gone through and that problem come out, would have had the potential to jeopardise it altogether. Mr Hunt's Special Adviser, Adam Smith, was the known point of contact between DCMS and News Corp's professional lobbyist, Frédéric Michel. Mr Smith already knew Mr Michel, and, when faced with the intimacy, charm, volume and persistence of Mr Michel's approaches, he was put in an extremely difficult position. The processes that were put in place to manage the bid did not prove to be robust enough in this particular respect. Best practice of the kind subsequently encapsulated in the Cabinet Office guidance on quasi-judicial decision-making was not followed. I have concluded that the seeds of this problem were sown at an early stage, and that the risks were, or should have been, obvious from the outset. I doubt the wisdom of appointing Mr Smith to this role. The consequential risks were then compounded by the cumulative effects of the lack of explicit clarity in Mr Smith's role, the lack of express instruction that it was clear that he fully understood, and a lack of supervision by Mr Hunt.
I have concluded that there is no credible evidence of actual bias on the part of Mr Hunt. However, the voluminous exchanges between Mr Michel and Mr Smith, in the circumstances, give rise to a perception of bias. The fact that they were conducted informally, and off the departmental record, are an additional cause for concern.
News Corp and Alex Salmond
The lobbying of Adam Smith was not the only way in which Mr Michel hoped to influence Mr Hunt. One of the conduits which Mr Michel sought to exploit calls for examination. Its roots lay in the period before Mr Hunt took over responsibility for the bid.
During the autumn of 2010, Mr Michel had been in touch with the First Minister for Scotland, the Rt Hon Alex Salmond MSP. By this stage, Mr Salmond was forging a close relationship with Rupert Murdoch and News Corp which is discussed more fully elsewhere in this Report.In particular, he was hoping to secure the support of The Scottish Sun in the then forthcoming 2011 Scottish Parliament election. Mr Salmond saw advantage for Scotland in the bid's success because News Corp is a big employer in Scotland. He was more than ready to try and encourage a successful outcome for the bid.
The history of Mr Salmond's readiness to intervene in the bid, on News Corp's behalf, is of real interest. He stood ready to lobby first Dr Cable and later Mr Hunt, prepared to argue that it would be good for Scotland and Scottish jobs. Had he done so he would have been seeking to persuade a quasi-judicial decision maker to take into account a factor which was irrelevant to the statutory plurality test. Plurality was the only consideration which could legitimately have been taken into account by the Secretary of State. Acceding to Mr Salmond's argument would have rendered the decision unlawful.
Mr Salmond adamantly believed that he was entitled to make his case and that responsibility for ensuring that the decision was properly taken rested entirely with the Secretary of State. Mr Salmond is right that legal responsibility for taking the decision lawfully rested with the Secretary of State. But it does not follow that he was entirely at liberty to seek to persuade the Secretary of State into error (particularly, if successful, it could potentially have had the effect of giving rise to grounds for challenge). Neither do I understand how a section of the Scottish Ministerial Code dealing with public sector procurement assists. Mr Salmond's duty to promote the Scottish economy and Scottish jobs cannot sensibly be understood as requiring irrelevant submissions to be made to a quasi-judicial decision maker.
Paul Dacre and the Daily Mail
The accept Mr Dacre's evidence that he never placed a story in the Daily Mail (or permitted one to be placed) which he knew came from phone hacking. That said, he did not engage with Counsel's question that the use of the term 'mendacious smears' might amount to an allegation that [Hugh] Grant had committed perjury [in suggestion to the Inquiry that the Daily Mail and the Mail on Sunday were involved in phone hacking]. The various written submissions of ANL maintained that the adjective 'mendacious' possesses a number of possible meanings, and argued that the term taken in context and properly understood in law amounts to nothing more than 'honest comment'. In my judgment, however, reading the article in the manner in which I have been invited, the Daily Mail was accusing Mr Grant of lying. Mr Grant would only be lying if, in speculating as he did, he did not believe that his evidence had any foundation…
A failure to consider the personal consequences of publishing information about an individual's private life was evident in Mr Dacre's evidence. The Daily Mail's coverage of the attack on Ms Witchall [Abigail Witchall, the daughter of Baroness Hollins, who had been stabbed and critically injured] included an article suggesting a spurious link between Ms Witchall's attack [an attack and one suffered by her brother some years earlier. Included as part of that article was the name and a photograph of Ms Witchall's brother, an indication that he suffered from learning difficulties and the names of his attackers. Baroness Hollins complained to the Inquiry that the article was an unjustified breach of her vulnerable son's privacy, which also placed him at risk of reprisals from his convicted attackers.
Mr Dacre defended the article robustly: "Can I say as strongly as I can that this, I believe, shows how the Inquiry doesn't understand how newspapers work. To my mind, this is a story and a feature handled with superb sensitivity. I've been through it. I think it's written with massive compassion. I think the family come out of it wonderfully. The love between the brother and sister is extraordinary. The religious faith of the family comes across. The learning disability – the mother and the son wrote a book about that, on how to handle court cases for people with learning disabilities. I think that's a wonderful message to get out to the public. I think that was an extraordinary story."
While the story may well have been extraordinary, written sensitively, and may well have contained a wonderful message, those factors do not change the fact that the story involved the disclosure of sensitive information which caused significant upset to the family, and was based in large part on the spurious suggestion of a link between two obviously unlinked attacks. I do not criticise Mr Dacre for the decision to publish the article, which he considered to be justified in the public interest. He is absolutely entitled to his own view on where the balance between private rights and public interests lay in respect of this (and other) stories.
But Mr Dacre's robust defence of the article failed to engage with the genuine concerns raised by Baroness Hollins. Indeed, Mr Dacre appeared not to understand why the family would have been upset by the article at all.
Given that Mr Dacre did not engage with the actual consequences of the story for the family, and their response to it, it seems probable that insufficient consideration was given to the potential consequences of the story, or its impact on the family, prior to publication.
Mr Dacre adopted a similarly robust approach in defending the publication of a defamatory story containing erroneous information about alleged drunken behaviour of the actor Neil Morrissey.
Mr Dacre accepted that the story was inaccurate and defamatory, but was unwilling to accept Mr Morrissey's evidence that the story was hurtful to him. Moreover, he argued strongly that, if true, the story would have been in the public interest because Mr Morrissey was a famous actor, because the story interested his readership and because, at the time, the Daily Mail believed that Mr Morrissey had acted irresponsibly.
The final element of that justification – irresponsible behaviour – accorded with a more general point which Mr Dacre accepted, that his newspaper felt justified to publish private information about public figures when they "erred" from the traditional virtues of family life, traditional matrimony and traditional values.
What was concerning about Mr Dacre's evidence on both the Ms Witchall and Mr Morrissey stories was not his editorial judgment on whether the articles should have been published or not. Instead, the concern related to Mr Dacre's unwillingness to entertain the idea that each of these stories might have been hurtful, upsetting and/or damaging to the individuals involved. If such a possibility is not even recognised post publication, despite evidence to the contrary from the subjects of the stories, then it seems unlikely to have been the subject of any consideration pre-publication.
As part of the body of evidence received from editors and proprietors, Mr Dacre's evidence supported a more general conclusion that there is a cultural unwillingness in parts of the press to consider the consequences of publication on the individuals involved. Some of the evidence from photo-editors and photo agencies discussed in Section 5 below, also supports that conclusion. To reiterate the point: the fact that a story might be hurtful, damaging or intrusive to the subjects of a story is not necessarily a reason not to publish that story. It may not even be a reason to amend the story. But it is difficult to see why the consequences on the individuals who are likely to be affected by publication should not both be relevant and factored into the overall decision.
It seems likely that, in the majority of cases of unjustified invasions of privacy, the simple fact is that the privacy and dignity of subjects of stories are not considered at all or, alternatively, are not sufficiently weighed in the balance prior to investigating or publishing the story. The evidence heard from some editors, journalists and executives supported that view. At its extreme, the cultural indifference to privacy was encapsulated in Paul McMullan's observation that "privacy is for paedos… no-one else needs it. Privacy is evil." While others may not have expressed themselves in the same terms, there seemed to be at least some agreement from other editors and journalists that privacy was not a matter worthy of significant protection.
Kelvin MacKenzie recalled that, as editor of The Sun, he did not have any regard to issues of privacy. He said:
"I didn't spend too much time pondering the ethics of how a story was gained, nor over-worry about whether to publish or not. If we believed the story to be true and we felt Sun readers should know the facts, we published it and left it to them to decide if we had done the right thing."
Although Mr MacKenzie left the Sun in 1994 and his evidence cannot necessarily be taken as reflecting attitudes prevailing today, his views chimed with Mr McMullan's, and were not dissimilar to some of the views expressed by proprietors, editors and journalists.
Although the contrary is often asserted, not a single witness has proposed that the Government or that Parliament should be able to step in to prevent the publication of anything whatsoever. Not a single witness has proposed that the Government or Parliament should themselves be involved in the regulation of the press. I have not contemplated and do not make any such proposal...
An independent self regulatory body should be governed by an independent Board. In order to ensure the independence of the body, the Chair and members of the Board must be appointed in a genuinely open, transparent and independent way, without any influence from industry or Government…
Funding for the system should be settled in agreement between the industry and the Board, taking into account the cost of fulfilling the obligations of the regulator and the commercial pressures on the industry. There should be an indicative budget which the Board certifies is adequate for the purpose. Funding settlements should cover a four or five year period and should be negotiated well in advance
… The standards code must ultimately be the responsibility of, and adopted by, the Board, advised by a Code Committee which may comprise both independent members of the Board and serving editors.
The code must take into account the importance of freedom of speech, the interests of the public (including the public interest in detecting or exposing crime or serous impropriety, protecting public health and safety and preventing the public from being seriously misled) and the rights of individuals. Specifically, it must cover standards of:
(a) conduct, especially in relation to the treatment of other people in the process of obtaining material;
(b) appropriate respect for privacy where there is no sufficient public interest justification for breach and
(c) accuracy, and the need to avoid misrepresentation.
A new system of regulation should not be considered sufficiently effective if it does not cover all significant news publishers.
The membership of a regulatory body should be open to all publishers on fair, reasonable and non-discriminatory terms, including making membership potentially available on different terms for different types of publisher.
… It should be open any subscriber to a recognised regulatory body to rely on the fact of such membership and on the opportunity it provides for the claimant to use a fair, fast and inexpensive arbitration service. It could request the court to encourage the use of that system of arbitration and, equally, to have regard to the availability of the arbitration system when considering claims for costs incurred by a claimant who could have used the arbitration service. On the issue of costs, it should equally be open to a claimant to rely on failure by a newspaper to subscribe to the regulator thereby depriving him or her of access to a fair, fast and inexpensive arbitration service. Where that is the case, in the exercise of its discretion, the court could take the view that, even where the defendant is successful, absent unreasonable or vexatious conduct on the part of the claimant, it would be inappropriate for the claimant to be expected to pay the costs incurred in defending the action.
A new regulatory body should consider encouraging the press to be as transparent as possible in relation to the sources used for stories, including providing any information that would help readers to assess the reliability of information from a source and providing easy access, such as web links, to publicly available sources of information such as scientific studies or poll results. This should include putting the names of photographers alongside images. This is not in any way intended to undermine the existing provisions on protecting journalists' sources, only to encourage transparency where it is both possible and appropriate to do so.
A regulatory body should establish a whistleblowing hotline for those [journalists] who feel that they are being asked to do things which are contrary to the code.
… The industry generally and a regulatory body in particular should consider requiring its members to include in the employment or service contracts with journalists a clause to the effect that no disciplinary action would be taken against a journalist as a result of a refusal to act in a manner which is contrary to the code of practice.
AMy recommendations are intended to be clear and unambiguous. They have not been affected or influenced by any political or other agenda. I have not been deflected from my path by any extraneous commentary I have read or heard over the past 16 months; which has only served to confirm my conclusions; I am doing what I believe is fair and right for everyone, not least the public. I am confident that my recommendations, and the reasons underlying them, will be seen by the public in that spirit.
I end where I started this Summary. This is the seventh time in less than 70 years that the issues which have occupied my life since I was appointed in July 2011 have been addressed. No-one can think it makes any sense to contemplate an eighth. The ball is now in the court of the politicians. I expect my recommendations to be treated in exactly the same cross-party spirit which led to the setting up of this Inquiry.
The full report of the Leveson Inquiry: Culture, Practice and Ethics of the Press can be viewed online, or downloaded, at: www.levesoninquiry.org.uk/about/the-report/
Copies of the report can be ordered from The Stationery Office's online shop, www.tsoshop.co.uk/ or from the Parliamentary customer services hotline, 0845 7023474. The report's ISBN is 9780102981063