I begin to write this at four in the afternoon of November 22nd 2011 with Christmas just a month away after watching the second day of victim witness testimony in the Leveson Inquiry, part 1 on the ethics, standards and regulatory mechanism of British Print media.
It has been an emotionally draining and memory challenging experience to digest what has been said and to make objective assessment of the case being made for a significant change in the behaviour of national newspapers, their journalists, including their use of freelance journalists, inquiry agents and the paparazzi, especially those who can be described be as tabloids although so far the behaviour of the Daily Mail and Sunday Mail in England, the Scottish Mail on Sunday (which is linked to the Scottish Record), the Daily Mirror, the Sun. Express Newspapers and the Evening Standard and the Sunday People, although the Sunday Times has also been singled out in one instance, together with at least two magazines. There have only been eight witnesses which includes two pairs of witnesses out of the 51 victim participants, although I do not know if all 51 will be giving oral as well as written evidence.
My immediate reaction from the response of the Daily Mail and the Mail on Sunday after the first day of witnesses and the testimony of High Grant in particular is that my worse fears have been realised. At the same time the aggressive response they, grossly distorting what one witness said, and which borders on contempt of the Inquiry, should prove counter productive in making the case, if one still needed to be made for significant change. I will come to the issue of concern in the order in which the witnesses gave evidence on Monday. Before this I will mention an issue of Process which to a limited extent caused the problem and about which I have direct experience.
In 1980 I participated in a judicial chaired and organised inquiry of a similar level and standard to that of Leveson in the sense that in addition to a Judge as Chairman and a Leading Counsel for the Inquiry there were a similar number of Core Participants with one notable exception which led two fellow Members acting with support of the Department of Health Advisor/Assessor threatening to leave the inquiry after the first day of witness testimony for the good reason which I shall come to.
In our instance the significant differences were that I and two of the representatives of professions and their management were full members of the Inquiry Panel the Department of Health appointing the advisor/ assessor as we were submitting a report with recommendations to the Secretary of State. The inquiry was not statutory, in the from of Leveson and was commissioned i.e. paid for by one Health and one Local Government Authority and therefore the Inquiry had no separate funds to provide payment for witnesses to be legally represented or could compel witnesses to participate and which lead to the most important potential witness acting on legal advice deciding not to appear.
This consequence of this difference also meant that whereas the main participants, the two authorities, the police, and two individual employees had legal representation as core participants, the lay witnesses which comprised foster parents and neighbours had no legal representation although they were at least advised they could bring a friend.
The result was that there were at least six Counsel, including the Chairman and Counsel for the Inquiry, present throughout the inquiry held over three months, with instructing solicitors and research assistants, together with on the first day other sets of barristers, solicitors for witnesses who had not asked to be core participants and only attended at their discretion and cost. There were 50 legal officers at the hearing on the opening day and a half, listening to opening submissions and during which the media was allowed to be present. One of the Core Participants was represented by a solicitor of the status able to appear in cases alongside barristers.
I mention this because the original plan reached by agreement between the Chairman and the Core Participant, was for the legal Counsel/Solicitor for the Witness to introduce and take them through their statement, followed by interrogation, I use by words carefully, by Counsel for the Inquiry, the Commissioning two authorities and then other core participants, the chairman then asked and then panel members and then the parties had a right to come back on points of concern.
This meant each witness was in the position of being questioned and requisitioned by 11 people which was both intimidating and lengthy. Lord Leveson has attempted to short circuit this usual situation by enforcing that only a member of the Counsel team should ask the questions, dividing their task into three parts, first going through the statement as if it would have been by a lawyer for the witness, then putting questions raised by other core participants on an anonymous basis and then asking about the wider issues raised in the statement. Lord Leveson tops and tails each witness session with a welcome and a thanks but also asks questions at the end of each session.
This has created a number of problems with first one witness yesterday not being clear that Counsel had switched between asking questions on the statement for the Inquiry and those asked on behalf of the core participants. There appears to be a difference of view between News International who want to keep this system and Associated Newspapers for the Mail and Mail on Sunday who pressed for identification on matters of major conflict. In effect Counsel for Associated Newspapers (Mail and Mail on Sunday) said on Tuesday that because he had not been able to directly challenge what was said on behalf of his clients they had felt obliged to react as they had. After representations by two Counsels and a study of the published media response, his Lordship made the point that denial of the allegation made was legitimate but to claim that the witness had deliberately lied was not sustained by what was said as recorded in the transcript. When asked to comment, i.e. make an apology Counsel for the newspaper group failed to respond twice although appeared to grudgingly agree that the paper would provide witness evidence of their objection of the evidence and Lord Leveson indicated that he would make arrangements for this to happen quickly. I will come to the specifics when reporting on the witness in question.
In my experience as a panel member thirty years ago the problem was the aggressive interrogation by Counsel for the Inquiry of the first lay witnesses which led to concerns expressed which nearly ended the Inquiry before it commenced. A meeting was held at which a compromise was reached in which an appropriate member of the panel would commence the questions and then the lawyer for the witnesses with other panels members coming in as appropriate and the other lawyers restricting interventions to points of clarification or interest to their clients with Counsel for the Inquiry acting as long stop at the end if anything was missed. This did result in duplication because I and my colleagues were thorough and detailed which meant that the lawyer for their client duplicated everything almost every issue by issue. This demonstrates the difficulties can arise and which his Lordship has been attempting to short circuit, taking account of the time framework he has been set and the narrow thread between matters to be dealt with in part two of the enquiry after the police enquires and any prosecutions have been completed.
The other difference between the two inquiries were substantial in that the media which had called for the Inquiry were only present on the first and last days, although an original proposal that BBC Panorama should be allowed to have access to witness stages and panel consideration of issues fell through. Even so we insisted that the witnesses were only referred to by their designation Neighbour 1, Foster Parent 2, Paediatrician Acting Superintendent Inspector, Direct or Social Services, Health Authority Chief Executive. I mention these because will be seen that in relation some individuals such Chief Executive the individual was easily identifiable and did not seek anonymity.
There is one other process issue which causes a problem because of live hearings. In addition to the witness statement which were issued to us in blocks in advance as the hearings progressed there was a significant volume of background documents which commenced before the Inquiry opened and became more voluminous as it progressed with the core participants wielding trolleys of boxed documents in and out the hearing each day and where by the end of the report writings I accumulated over 20 lever arch files. The problems has been that the witness statement can only be put online to the public once it has been sworn in before the Judge which means those viewing do not know the context until afterwards. Following representation on behalf of the witnessed the Judge has ordered that the statements should be put on line instantly they have been sworn. I marvel at the situation where everything is not only on line but instantly index through an accumulating database.
Not only did I have to bring a suitcase back and forth with me every weekend but had to create my own limited card reference index and then had to go through every document manually when it came to drafting what became the majority report.
Now to the emotion and drama of the first testimony in the Inquiry that of Sally and Bob Dowler, the parents of murdered Milly who went missing in March 2002 and whose murdered body was discovered in September of that year but where only in June of this year was an individual convicted of that murder. It was fitting they should be the first witnesses because it was the revelations that Milly’s phone messages had been deleted after she had gone missing and was subsequently murdered which led to the public and parliamentary furore, the demand for change and the Inquiry.
The couple in their statement and at the Inquiry emphasised that from the outset they agreed that Surrey police and their media department handled media issues and that when they were subsequently door stepped, or received invitations to give interviews, including interviews for payment they politely declined not wanting to alienate one paper against another and because the media had been helpful in trying to find out what had happened to their daughter. The problem was learning of news stories before being advised of development by the police. There was a body found at a local railway station and then in a local Lock where the Daily Mail printed a full front page headline that said Milly’s body had been found alongside a massive photo of her. This was not so. The Daily Mail and the Mail on Sunday are to feature time and time again in witness statements and appearances and which perhaps explains the position of their Counsel at the Inquiry. The testimony is about sanctioned vindictive and persistent reporting.
Mr and Mrs Dowler described the matters which caused them considerable distress, (potentially traumatizing and potentially life lasting in my judgement). The first was the appearance of photos with story when Mrs Dowler decided to meet her husband at the station on the same day of the week and time as when their daughter had disappeared. It had not been prearranged and she had contacted her husband during the day by phone and she had been taken to the station by the police family liaison officer about whom she had nothing but praise.
In addition to retracing the possible steps of their daughter they had checked the missing notices as a new telephone number has been issued. Apart from the police officer the only way anyone from the media could have known about their journey was the mobile phone.
The situation was also one which has become known on an international basis. This was when a short time after their daughter had gone missing and they had gone to look at CCTV records and Mrs Dowler had checked her daughter’s phone as she did several times a day, they police having added funds to the account, and heard the answer message which meant that messages had been deleted which Mrs Dowler understandably interpreted that her daughter was alive and excitedly told her extended family and friends. Someone other than Milly had deleted the messages and it was only subsequently that the reality of the position was established causing the couple great distress and catapulting them again onto the international media stage as had the trial of the killer of their daughter only months before.
Later on Monday after the couple had given their testimony a solicitor on behalf of the investigator Mulcaire issued a statement confirming what had been said before that he had not deleted the voice messages. The implication being that this had been undertaken by either someone at the newspaper or another person who had also possession of information required to access the mobile phone.
This issue was also the subject of concern expressed by Counsel for the victims and which he asked Lord Leveson to consider in terms of the agreed approach that contested matters should be raised within the Inquiry and not externally in the media although controlling what is circulated instantly through twitter is a separate concern.
While the Inquiry was established because of the illegal interception of phone voice messages its remit covers how the press media behaves in general and this aspect appears to be the issue of contention with the others newspapers and their lawyers who include former journalists and editorial staff who are now appearing aggressively defensive for understandable reasons. I will cover aspect of the wider response in reports on the victim testimonies and aggressive defensive reactions.
Mr and Mrs Dowler also provided evidence on how they responded to the media frenzy which they experienced during those first months and then subsequently. In addition to the understandable emotion of the recounted experiences they went through how the media had behaved in general. They could not go out if their home into the front without being approached. Mr Dowler in particular explained how they had always politely declined to comment
The inquiry also heard how the couple came to be represented by Mr Lewis, their meetings with the Murdoch’s. The Prime Minister and other Party leaders and a letter received from Ms Brooke which mentioned that she had not known about the hacking but accepted it had taken place and apologised. The couple were remarkable dignified throughout their appearance which lasted approximately half an hour and their testimony was widely reported throughout the rest of the day with respect and admiration.
The second witness was Joan Smith, a novelist, essayist, columnist and campaigner for human rights who has worked for the Sunday Times as part of their investigative Insight team for five years who went freelance in 1984 and has since had work published in a wide range of new print tittles and in TV and radio broadcasting. She had six novels and a web site Political Blonde.
Between 2003 and 2010 she was in an adult relationship with a Member of Parliament, Denis MacShane. In April of 2011 she was advised by Denis that he had been told by the Police that his phone had been hacked and she described how her solicitors had obtained information from her phone provider which had been passed to the police who then showed her the information Mulcaire had collected and recorded in the spring of 2004.
At that time she was writing for the Times and the Independent and was chair of Writers in prison committee of P.E.N. (The USA based freedom of Expression organisation). Her cohabite was a Government Minister and learned of the tragic death of his daughter in an accident. She referred to the impact of the death upon Denis and his mother and then of her movements which included discussions on press freedom and human rights internationally. The significance is that they were in different places and communicated by mobile phone leaving information about contact numbers. It was these messages that were intercepted. The recorded purpose of the action linked the couple with a view to making the relationship public. The relationship of the couple was not a secret one and as her partner was divorced she could not understand the purpose of the hacking and being linked.
She had been shocked by the revelations and was upset because the intrusion had taken place within two months of the death of his daughter. She expressed her sense of feeling betrayed by professional colleagues and still does, especially as she was writing for one of the other titles owned by the Murdoch’s, After hearing Kelvin MacKensie speak at the Leveson Inquiry seminar she wrote of her concerns in the Independent 2 days later. She also reported being door stepped by the Mail on Sunday in June 2005 a year after the hacking and she was notified that a report from that paper had been making enquiries about her private life including approaching neighbours and then published an article about their relationship, a relationship of two divorced persons.
In questioning on behalf of other Core participants, in this instance I assume Associated Newspapers; she was quizzed why given what she was submitted she had written about the private life of a named couple. Ms Smith explained that the purpose of the article was, (to repeat an expression used during Tuesday’s session and not be her own but seems to me appropriate), personalities entered into a Faustian pact with the media by putting too much of their private lives into public domain.
She confirmed in answer to a question from Lord Levy that the present system did not work but she was opposed to state controlled regulation and the idea of licensing journalists. She believes in the carrot and stick approach offering a new form of self regulation with perhaps the penalty that they would lose their VAT protection status for serious misconduct. Any system had to work much quicker. The same standard and regulation system should apply to all newspapers. She summoned her position as being Collateral Damage. A phrase that is to recur.
The third and final witness of the morning was Graham Sheer a lawyer with 20 years experience as a commercial litigator and a recognised leader in the subject including sports law, defamation, privacy and media and entertainment law and advises corporates and individuals on a wide range of issues.
He had experience of behaviour which he describes as misconduct some of which was driven by the commercial pressures faced by the tabloid papers, leading to a major reduction in the investigative journalists and newsroom teams switching to chequebook journalism. The situation has led them to become more and more aggressive and to undertake increased amounts of surveillance. This has led them to become interventionists instructed to actively simulate a story with the payment of large sums of money to kiss and tell girls and example of such activity. He said that from a basic £10000 he had heard of payments as high as £500000. There is a now a group of serial kiss and tell women targeting footballers, with some of those he represented being asked to give more money than offered by the newspapers not to reveal their story. This is blackmail.
Until 2001/02 his work was divided between post publication proceedings and preventive action against newspapers to stop publication of defamations and occasional of private or confidential material. Since then the balance has shifted towards Privacy law issues and the Human Rights Act. The situation had been reached where the tabloid calculated the cost of publication against the increase from sales and regardless of subsequent legal costs.
In 2003 there was an incident where 5 footballers were accused of raping a 17 year old girl at a hotel. His client was at the same hotel but had no involvement in the incident and targeted by several tabloids set on vilifying him. This was because of who he was and his existing relationship with the press. They used tactics designed to help the public identify the individual while diluting the potential for a libel claim. The coverage was so prejudicial that he had written to Lord Goldsmith (Attorney General)
In a 2006 paper published a story about a video alleging a homosexual relationship between two individuals including a footballer. The film was a hoax but the paper had published pixelated photos taken from the internet which could lead to identification. Legal action was taken against several newspapers but this led to a three year campaign by the press against the client.
This is the charge which had already been raised several times, that if you take on the press they will only intensify their efforts to get you.
The witness then concentrated on the anger and vilification directed at those who obtained the super injunction where the subject was given full anonymity.
He tacked the argument about the chilling effect of such actions on press freedom or being hampered by the costs of libel and privacy claims.
He then described one of several situations where he was under surveillance. Before the disclosure of phone hacking clients had expressed concerns about their communications being monitored. He quoted a situation where he had left voicemail directions to clients to meet at his home, and three full cars of reports arrived in the roadway outside the house five minutes before the clients arrived. The group of reporters and photographers increased. The group swelled to over 100 people.
Because of his suspicions he wrote in 2008 and 2009 to the information commissioners and to the Metropolitan Police service enclosing a list of clients asking if they had been referred to in the phone hacking information held by them. The response by the Information Commissioner and the Police was negative. In February 2011 he was contacted by senior officers to say that his name and phone appeared in the Mulcaire Notes. Mulcaire knew he was a solicitor and knew which clients he was acting for.
So far the role of the police in all this has been tangential but will be identified more as the witness statements are reported. In addition to personal information there was the issue of legal client privilege. His final point was to mention the hypocrisy involved on the part of the tabloids.
Perhaps the most fundamental issue raised by the witness and one which spreads throughout the whole of the three days of witness testimony is extent to which the existence of the tabloids has come to rest on the reporting and manufacture of stories which interest the public but which are not in the public interest and which breach the human rights, the civil rights of individuals and which leads to libel and slander and a lifelong defamation of character.
It has been an emotionally draining and memory challenging experience to digest what has been said and to make objective assessment of the case being made for a significant change in the behaviour of national newspapers, their journalists, including their use of freelance journalists, inquiry agents and the paparazzi, especially those who can be described be as tabloids although so far the behaviour of the Daily Mail and Sunday Mail in England, the Scottish Mail on Sunday (which is linked to the Scottish Record), the Daily Mirror, the Sun. Express Newspapers and the Evening Standard and the Sunday People, although the Sunday Times has also been singled out in one instance, together with at least two magazines. There have only been eight witnesses which includes two pairs of witnesses out of the 51 victim participants, although I do not know if all 51 will be giving oral as well as written evidence.
My immediate reaction from the response of the Daily Mail and the Mail on Sunday after the first day of witnesses and the testimony of High Grant in particular is that my worse fears have been realised. At the same time the aggressive response they, grossly distorting what one witness said, and which borders on contempt of the Inquiry, should prove counter productive in making the case, if one still needed to be made for significant change. I will come to the issue of concern in the order in which the witnesses gave evidence on Monday. Before this I will mention an issue of Process which to a limited extent caused the problem and about which I have direct experience.
In 1980 I participated in a judicial chaired and organised inquiry of a similar level and standard to that of Leveson in the sense that in addition to a Judge as Chairman and a Leading Counsel for the Inquiry there were a similar number of Core Participants with one notable exception which led two fellow Members acting with support of the Department of Health Advisor/Assessor threatening to leave the inquiry after the first day of witness testimony for the good reason which I shall come to.
In our instance the significant differences were that I and two of the representatives of professions and their management were full members of the Inquiry Panel the Department of Health appointing the advisor/ assessor as we were submitting a report with recommendations to the Secretary of State. The inquiry was not statutory, in the from of Leveson and was commissioned i.e. paid for by one Health and one Local Government Authority and therefore the Inquiry had no separate funds to provide payment for witnesses to be legally represented or could compel witnesses to participate and which lead to the most important potential witness acting on legal advice deciding not to appear.
This consequence of this difference also meant that whereas the main participants, the two authorities, the police, and two individual employees had legal representation as core participants, the lay witnesses which comprised foster parents and neighbours had no legal representation although they were at least advised they could bring a friend.
The result was that there were at least six Counsel, including the Chairman and Counsel for the Inquiry, present throughout the inquiry held over three months, with instructing solicitors and research assistants, together with on the first day other sets of barristers, solicitors for witnesses who had not asked to be core participants and only attended at their discretion and cost. There were 50 legal officers at the hearing on the opening day and a half, listening to opening submissions and during which the media was allowed to be present. One of the Core Participants was represented by a solicitor of the status able to appear in cases alongside barristers.
I mention this because the original plan reached by agreement between the Chairman and the Core Participant, was for the legal Counsel/Solicitor for the Witness to introduce and take them through their statement, followed by interrogation, I use by words carefully, by Counsel for the Inquiry, the Commissioning two authorities and then other core participants, the chairman then asked and then panel members and then the parties had a right to come back on points of concern.
This meant each witness was in the position of being questioned and requisitioned by 11 people which was both intimidating and lengthy. Lord Leveson has attempted to short circuit this usual situation by enforcing that only a member of the Counsel team should ask the questions, dividing their task into three parts, first going through the statement as if it would have been by a lawyer for the witness, then putting questions raised by other core participants on an anonymous basis and then asking about the wider issues raised in the statement. Lord Leveson tops and tails each witness session with a welcome and a thanks but also asks questions at the end of each session.
This has created a number of problems with first one witness yesterday not being clear that Counsel had switched between asking questions on the statement for the Inquiry and those asked on behalf of the core participants. There appears to be a difference of view between News International who want to keep this system and Associated Newspapers for the Mail and Mail on Sunday who pressed for identification on matters of major conflict. In effect Counsel for Associated Newspapers (Mail and Mail on Sunday) said on Tuesday that because he had not been able to directly challenge what was said on behalf of his clients they had felt obliged to react as they had. After representations by two Counsels and a study of the published media response, his Lordship made the point that denial of the allegation made was legitimate but to claim that the witness had deliberately lied was not sustained by what was said as recorded in the transcript. When asked to comment, i.e. make an apology Counsel for the newspaper group failed to respond twice although appeared to grudgingly agree that the paper would provide witness evidence of their objection of the evidence and Lord Leveson indicated that he would make arrangements for this to happen quickly. I will come to the specifics when reporting on the witness in question.
In my experience as a panel member thirty years ago the problem was the aggressive interrogation by Counsel for the Inquiry of the first lay witnesses which led to concerns expressed which nearly ended the Inquiry before it commenced. A meeting was held at which a compromise was reached in which an appropriate member of the panel would commence the questions and then the lawyer for the witnesses with other panels members coming in as appropriate and the other lawyers restricting interventions to points of clarification or interest to their clients with Counsel for the Inquiry acting as long stop at the end if anything was missed. This did result in duplication because I and my colleagues were thorough and detailed which meant that the lawyer for their client duplicated everything almost every issue by issue. This demonstrates the difficulties can arise and which his Lordship has been attempting to short circuit, taking account of the time framework he has been set and the narrow thread between matters to be dealt with in part two of the enquiry after the police enquires and any prosecutions have been completed.
The other difference between the two inquiries were substantial in that the media which had called for the Inquiry were only present on the first and last days, although an original proposal that BBC Panorama should be allowed to have access to witness stages and panel consideration of issues fell through. Even so we insisted that the witnesses were only referred to by their designation Neighbour 1, Foster Parent 2, Paediatrician Acting Superintendent Inspector, Direct or Social Services, Health Authority Chief Executive. I mention these because will be seen that in relation some individuals such Chief Executive the individual was easily identifiable and did not seek anonymity.
There is one other process issue which causes a problem because of live hearings. In addition to the witness statement which were issued to us in blocks in advance as the hearings progressed there was a significant volume of background documents which commenced before the Inquiry opened and became more voluminous as it progressed with the core participants wielding trolleys of boxed documents in and out the hearing each day and where by the end of the report writings I accumulated over 20 lever arch files. The problems has been that the witness statement can only be put online to the public once it has been sworn in before the Judge which means those viewing do not know the context until afterwards. Following representation on behalf of the witnessed the Judge has ordered that the statements should be put on line instantly they have been sworn. I marvel at the situation where everything is not only on line but instantly index through an accumulating database.
Not only did I have to bring a suitcase back and forth with me every weekend but had to create my own limited card reference index and then had to go through every document manually when it came to drafting what became the majority report.
Now to the emotion and drama of the first testimony in the Inquiry that of Sally and Bob Dowler, the parents of murdered Milly who went missing in March 2002 and whose murdered body was discovered in September of that year but where only in June of this year was an individual convicted of that murder. It was fitting they should be the first witnesses because it was the revelations that Milly’s phone messages had been deleted after she had gone missing and was subsequently murdered which led to the public and parliamentary furore, the demand for change and the Inquiry.
The couple in their statement and at the Inquiry emphasised that from the outset they agreed that Surrey police and their media department handled media issues and that when they were subsequently door stepped, or received invitations to give interviews, including interviews for payment they politely declined not wanting to alienate one paper against another and because the media had been helpful in trying to find out what had happened to their daughter. The problem was learning of news stories before being advised of development by the police. There was a body found at a local railway station and then in a local Lock where the Daily Mail printed a full front page headline that said Milly’s body had been found alongside a massive photo of her. This was not so. The Daily Mail and the Mail on Sunday are to feature time and time again in witness statements and appearances and which perhaps explains the position of their Counsel at the Inquiry. The testimony is about sanctioned vindictive and persistent reporting.
Mr and Mrs Dowler described the matters which caused them considerable distress, (potentially traumatizing and potentially life lasting in my judgement). The first was the appearance of photos with story when Mrs Dowler decided to meet her husband at the station on the same day of the week and time as when their daughter had disappeared. It had not been prearranged and she had contacted her husband during the day by phone and she had been taken to the station by the police family liaison officer about whom she had nothing but praise.
In addition to retracing the possible steps of their daughter they had checked the missing notices as a new telephone number has been issued. Apart from the police officer the only way anyone from the media could have known about their journey was the mobile phone.
The situation was also one which has become known on an international basis. This was when a short time after their daughter had gone missing and they had gone to look at CCTV records and Mrs Dowler had checked her daughter’s phone as she did several times a day, they police having added funds to the account, and heard the answer message which meant that messages had been deleted which Mrs Dowler understandably interpreted that her daughter was alive and excitedly told her extended family and friends. Someone other than Milly had deleted the messages and it was only subsequently that the reality of the position was established causing the couple great distress and catapulting them again onto the international media stage as had the trial of the killer of their daughter only months before.
Later on Monday after the couple had given their testimony a solicitor on behalf of the investigator Mulcaire issued a statement confirming what had been said before that he had not deleted the voice messages. The implication being that this had been undertaken by either someone at the newspaper or another person who had also possession of information required to access the mobile phone.
This issue was also the subject of concern expressed by Counsel for the victims and which he asked Lord Leveson to consider in terms of the agreed approach that contested matters should be raised within the Inquiry and not externally in the media although controlling what is circulated instantly through twitter is a separate concern.
While the Inquiry was established because of the illegal interception of phone voice messages its remit covers how the press media behaves in general and this aspect appears to be the issue of contention with the others newspapers and their lawyers who include former journalists and editorial staff who are now appearing aggressively defensive for understandable reasons. I will cover aspect of the wider response in reports on the victim testimonies and aggressive defensive reactions.
Mr and Mrs Dowler also provided evidence on how they responded to the media frenzy which they experienced during those first months and then subsequently. In addition to the understandable emotion of the recounted experiences they went through how the media had behaved in general. They could not go out if their home into the front without being approached. Mr Dowler in particular explained how they had always politely declined to comment
The inquiry also heard how the couple came to be represented by Mr Lewis, their meetings with the Murdoch’s. The Prime Minister and other Party leaders and a letter received from Ms Brooke which mentioned that she had not known about the hacking but accepted it had taken place and apologised. The couple were remarkable dignified throughout their appearance which lasted approximately half an hour and their testimony was widely reported throughout the rest of the day with respect and admiration.
The second witness was Joan Smith, a novelist, essayist, columnist and campaigner for human rights who has worked for the Sunday Times as part of their investigative Insight team for five years who went freelance in 1984 and has since had work published in a wide range of new print tittles and in TV and radio broadcasting. She had six novels and a web site Political Blonde.
Between 2003 and 2010 she was in an adult relationship with a Member of Parliament, Denis MacShane. In April of 2011 she was advised by Denis that he had been told by the Police that his phone had been hacked and she described how her solicitors had obtained information from her phone provider which had been passed to the police who then showed her the information Mulcaire had collected and recorded in the spring of 2004.
At that time she was writing for the Times and the Independent and was chair of Writers in prison committee of P.E.N. (The USA based freedom of Expression organisation). Her cohabite was a Government Minister and learned of the tragic death of his daughter in an accident. She referred to the impact of the death upon Denis and his mother and then of her movements which included discussions on press freedom and human rights internationally. The significance is that they were in different places and communicated by mobile phone leaving information about contact numbers. It was these messages that were intercepted. The recorded purpose of the action linked the couple with a view to making the relationship public. The relationship of the couple was not a secret one and as her partner was divorced she could not understand the purpose of the hacking and being linked.
She had been shocked by the revelations and was upset because the intrusion had taken place within two months of the death of his daughter. She expressed her sense of feeling betrayed by professional colleagues and still does, especially as she was writing for one of the other titles owned by the Murdoch’s, After hearing Kelvin MacKensie speak at the Leveson Inquiry seminar she wrote of her concerns in the Independent 2 days later. She also reported being door stepped by the Mail on Sunday in June 2005 a year after the hacking and she was notified that a report from that paper had been making enquiries about her private life including approaching neighbours and then published an article about their relationship, a relationship of two divorced persons.
In questioning on behalf of other Core participants, in this instance I assume Associated Newspapers; she was quizzed why given what she was submitted she had written about the private life of a named couple. Ms Smith explained that the purpose of the article was, (to repeat an expression used during Tuesday’s session and not be her own but seems to me appropriate), personalities entered into a Faustian pact with the media by putting too much of their private lives into public domain.
She confirmed in answer to a question from Lord Levy that the present system did not work but she was opposed to state controlled regulation and the idea of licensing journalists. She believes in the carrot and stick approach offering a new form of self regulation with perhaps the penalty that they would lose their VAT protection status for serious misconduct. Any system had to work much quicker. The same standard and regulation system should apply to all newspapers. She summoned her position as being Collateral Damage. A phrase that is to recur.
The third and final witness of the morning was Graham Sheer a lawyer with 20 years experience as a commercial litigator and a recognised leader in the subject including sports law, defamation, privacy and media and entertainment law and advises corporates and individuals on a wide range of issues.
He had experience of behaviour which he describes as misconduct some of which was driven by the commercial pressures faced by the tabloid papers, leading to a major reduction in the investigative journalists and newsroom teams switching to chequebook journalism. The situation has led them to become more and more aggressive and to undertake increased amounts of surveillance. This has led them to become interventionists instructed to actively simulate a story with the payment of large sums of money to kiss and tell girls and example of such activity. He said that from a basic £10000 he had heard of payments as high as £500000. There is a now a group of serial kiss and tell women targeting footballers, with some of those he represented being asked to give more money than offered by the newspapers not to reveal their story. This is blackmail.
Until 2001/02 his work was divided between post publication proceedings and preventive action against newspapers to stop publication of defamations and occasional of private or confidential material. Since then the balance has shifted towards Privacy law issues and the Human Rights Act. The situation had been reached where the tabloid calculated the cost of publication against the increase from sales and regardless of subsequent legal costs.
In 2003 there was an incident where 5 footballers were accused of raping a 17 year old girl at a hotel. His client was at the same hotel but had no involvement in the incident and targeted by several tabloids set on vilifying him. This was because of who he was and his existing relationship with the press. They used tactics designed to help the public identify the individual while diluting the potential for a libel claim. The coverage was so prejudicial that he had written to Lord Goldsmith (Attorney General)
In a 2006 paper published a story about a video alleging a homosexual relationship between two individuals including a footballer. The film was a hoax but the paper had published pixelated photos taken from the internet which could lead to identification. Legal action was taken against several newspapers but this led to a three year campaign by the press against the client.
This is the charge which had already been raised several times, that if you take on the press they will only intensify their efforts to get you.
The witness then concentrated on the anger and vilification directed at those who obtained the super injunction where the subject was given full anonymity.
He tacked the argument about the chilling effect of such actions on press freedom or being hampered by the costs of libel and privacy claims.
He then described one of several situations where he was under surveillance. Before the disclosure of phone hacking clients had expressed concerns about their communications being monitored. He quoted a situation where he had left voicemail directions to clients to meet at his home, and three full cars of reports arrived in the roadway outside the house five minutes before the clients arrived. The group of reporters and photographers increased. The group swelled to over 100 people.
Because of his suspicions he wrote in 2008 and 2009 to the information commissioners and to the Metropolitan Police service enclosing a list of clients asking if they had been referred to in the phone hacking information held by them. The response by the Information Commissioner and the Police was negative. In February 2011 he was contacted by senior officers to say that his name and phone appeared in the Mulcaire Notes. Mulcaire knew he was a solicitor and knew which clients he was acting for.
So far the role of the police in all this has been tangential but will be identified more as the witness statements are reported. In addition to personal information there was the issue of legal client privilege. His final point was to mention the hypocrisy involved on the part of the tabloids.
Perhaps the most fundamental issue raised by the witness and one which spreads throughout the whole of the three days of witness testimony is extent to which the existence of the tabloids has come to rest on the reporting and manufacture of stories which interest the public but which are not in the public interest and which breach the human rights, the civil rights of individuals and which leads to libel and slander and a lifelong defamation of character.
No comments:
Post a Comment