14 (11.34 am) 15 MR JAY: Sir, the next witness, Mr Davies. 16 MR NICK DAVIES (affirmed) 17 Questions from MR JAY 18 MR JAY: First of all, make yourself comfortable, Mr Davies. 19 A. Will I need the evidence bundle that you sent me? 20 Q. Please, Mr Davies. Your full name, please? 21 A. Nicholas John Allen Davies. 22 Q. In the bundle we provided you, you should see under 23 tab 1 a witness statement which you kindly provided 24 right on the button, as it were, in terms of timing, on 25 27 September 2011. 57 1 A. Yes. 2 Q. You have provided a statement of truth at the end of 3 that statement. Is this your evidence to the Inquiry? 4 A. Yes. 5 Q. The reason, Mr Davies, we're calling you early is that 6 you obviously provide us with a lot of general 7 assistance in relation to phone hacking and about 8 journalistic practices in general, and the rest of the 9 Guardian's evidence will, as it were, come early in the 10 new year. 11 So we understand who you are, for those who don't 12 know, you are a freelance journalist who has been 13 working under a part-time contract for the Guardian for 14 some considerable time; is that right, Mr Davies? 15 A. Yes, since 1989, but I was a staff reporter for some 16 years in the early 1980s at the Guardian. 17 Q. Aside from working for the Guardian as a special 18 correspondent, what else do you do? 19 A. Occasionally I drift into making television 20 documentaries as an onscreen reporter and I also had a 21 phase when I wrote feature films and I write books. I'm 22 currently writing one about -- or trying to write one 23 about the phone hacking. It's driving me mad. 24 Q. Thank you. The book which all of us have read, "Flat 25 Earth News", that came out in 2008; is that right? 58 1 A. January 2008. 2 Q. You do tell us a bit about your journalistic training in 3 your statement, and this may be of interest to us. It 4 was between 1976 and -- 5 A. '78. 6 Q. With a scheme for university graduates which was run by 7 the Mirror group. 8 A. Yes. 9 Q. Can you expand upon that just a little -- 10 A. The Mirror group then owned a little group of newspapers 11 down in Devon and Cornwall and they had a training 12 scheme which was based in Plymouth. I think it was 13 regarded as a pretty good scheme, and they spent 14 a couple of months teaching us basic skills, shorthand, 15 typing, newspaper law, and then they sent us out to work 16 on these local papers and then, after whatever it was, 17 a couple of years, if you passed your proficiency test, 18 they hiked up you up to London to one of the Mirror 19 group's national papers to work on what they called an 20 attachment for a couple of months. I was very keen to 21 work on the Sunday People, which was in those days quite 22 a different creature to the paper it is now. 23 Specifically, they had just uncovered an intense bout of 24 corruption among police officers in Central London, 25 particularly the porn squad, which was heroic work, 59 1 really brilliant stuff, and I wanted to part of that. 2 So after that training scheme, I went to work briefly 3 for the Sunday People and it may or may not be relevant, 4 bearing in mind some of what Richard Peppiatt was just 5 saying, but I got bullied at the paper. It was 6 a particular executive who just thought -- he couldn't 7 tell the difference between leadership and spite and 8 I couldn't cope, so I fled, which is why I'm no longer 9 in the Mirror group. 10 Q. In terms of your training, you said that you covered 11 newspaper law, which may well have been a bit different 12 in the mid-1970s compared to what it is now. Did you 13 cover ethical issues at all? 14 A. Actually not very much, I would say. That doesn't mean 15 to say I'm an unethical person, but I do not remember 16 talking about ethics at all. This was a tabloid 17 training scheme. 18 Q. Fair enough. You're mainly interest in reporting, you 19 explain in your statement, long-term investigations of 20 social issues, including poverty in the UK, failing 21 schools, the criminal justice system, tax avoidance, 22 falsehood and distortion in the news media. So it's 23 quite a Catholic, eclectic agenda, as it were. 24 A. Yes. 25 Q. What brought you into becoming interested in the issue 60 1 of phone hacking? 2 A. I think a fluke. I was very interested in falsehood and 3 distortion in the media, which became this book, "Flat 4 Earth News". The research for that meant that I had to 5 go and talk to reporters from other newsrooms to get the 6 story behind stories, to understand what was going 7 wrong. Those reporters started talking to me about 8 illegal information-gathering techniques, stuff which 9 I just, naively, wasn't aware of, and that therefore 10 formed a chapter in the book about the "dark arts", as 11 they call them. 12 When the book was published in January 2008, I was 13 on the Radio 4 Today programme and also, up against me, 14 so to speak, was Stuart Kuttner, the then managing 15 editor of the News of the World, and when I tried to 16 summarise the chapter about the dark arts, he ridiculed 17 me. "I don't know what --" this is in summary: "I don't 18 know what planet Mr Davies thinks he's living on but 19 it's not one I recognise. This happened once at the 20 News of the World, the reporter was sent to prison and 21 that's it." 22 That was a statement which, I think it is fair to 23 say, is soundly false, and the result was that it 24 provoked somebody I had never heard of into getting in 25 touch with me and saying, "I heard Kuttner on the radio. 61 1 You need to know the truth." 2 And this person started to provide me with very 3 solid and detailed information about what had been going 4 on in the News of the World. This is back 5 in January/February 2008. 6 So you understand, the pattern of my work would be I 7 would usually have three or four big projects going at a 8 time, because they hit roadblocks. Project A can't 9 proceed unless I can talk to person A. He's on holiday, 10 so we'll proceed with projects B, C and D. 11 So I started to work part-time on that, gathering 12 bits and pieces from different places over a period 13 of -- actually, it turned into 18 months before I had 14 something that was worth printing, which was the 15 Gordon Taylor story in July 2009. So the short answer 16 to your question is I stumbled into it accidentally. 17 Q. No, that's very clear, Mr Davies. In terms of the 18 chronology of the stories, the Inquiry fully 19 understands. It has read a massive amount of material, 20 including an e-book which the Guardian has published. 21 I'm not sure you're aware -- 22 A. Oh yes. That's just a collection of stories which the 23 Guardian hats published. 24 Q. Yes. It's a helpful summary to the not fully initiated 25 of the chronology. I'm not going to ask you about 62 1 specific sources, for quite obvious reasons, but in 2 relation to phone hacking, are you able to assist us at 3 all, or at least the nature of your sources and perhaps 4 the number of your sources? 5 A. Of phone hacking? Okay. 6 LORD JUSTICE LEVESON: I want to know about the whole thing 7 in terms -- I'm sure Mr Jay will turn to it -- and in 8 particular I would like to know about how journalists 9 work on a story, how they validate what they're going to 10 say and how they check up on the sources that they use. 11 The reason I'm asking you this is because your book 12 contains a great deal of material which you've obtained 13 from other people, which a lawyer would call obvious 14 hearsay. 15 A. Right. 16 LORD JUSTICE LEVESON: That doesn't mean to say it's wrong, 17 but I am keen that people understand and that I fully 18 understand precisely how you get to the conclusion you 19 reach -- 20 A. Okay. 21 LORD JUSTICE LEVESON: -- and how solidly based that 22 conclusion is. I've probably summarised Mr Jay's next 23 15 questions. 24 A. But there's a lot in there. 25 LORD JUSTICE LEVESON: There is, and I'm happy to leave it 63 1 to you and him to sort it out. 2 A. If I try to start with the generality, which is what 3 you're asking me, I think. First of all, set aside the 4 kind of time-limited churnalistic activity which 5 I describe in the book and which Richard Peppiatt has 6 been talking about. If you give a reporter time, the 7 most essential working asset for our trade, then I would 8 say it works like this: that I'm looking for evidence to 9 discover the truth and I would expect to find that 10 evidence initially on two primary routes. The first is 11 the public domain, which I would define as everything 12 I'm allowed to know simply because I asked for it. And 13 the public domain has got much bigger in the last few 14 years, so this involves, for example, conventional 15 public records, Companies House and much more else, the 16 use of the Freedom of Information Act to uncover, again, 17 what you're allowed to know simply because you ask for 18 it, and of course the use of the Internet. So all 19 that's there in the public domain. That is, from 20 a reporter's point of view, low-hanging fruit. 21 The second primary route -- is this the right 22 approach? Is that what you want me to -- 23 LORD JUSTICE LEVESON: Yes, definitely. 24 A. The second primary route is the most important stuff we 25 can do, which is human sources, and I mean, I've never 64 1 known an interesting story where everything you needed 2 to know was available on the first route, in the public 3 domain. It's kind of almost a definition of a good 4 story -- in fact, this is an old newspaper maxim. News 5 is what someone somewhere doesn't want you to know. So 6 if they're concealing it, you won't find it out there on 7 the public domain. You have to have human sources. The 8 most difficult, skilful, interesting, important stuff 9 that reporters do it is finding human sources and 10 motivating them to help. It's a terrible interesting 11 area from a reporter's point of view. 12 So that's where the mass of work goes on. If that 13 doesn't yield what you want, there are other secondary 14 routes to getting information, one of which I learnt 15 from Harry Evans, who was probably the best journalist 16 this country has produced since the war. In his memoir, 17 he describes how, on several occasions, he got his 18 journalists to persuade people to sue because he could 19 see that they couldn't get to the bottom of the barrel 20 and get evidence simply from those two primary routes, 21 and if there were legal actions ongoing, the judge might 22 order disclosure into the public court of material that 23 would help them to see the truth. 24 Learning from that lesson in this particular story 25 of the phone hacking, I certainly did whatever I could 65 1 to hook up public figures who had been -- or anybody who 2 had been a victim, allegedly, of hacking with the 3 lawyers who might take their case forward so that 4 eventually something would pop out in open court. 5 So in general terms, it's those three routes. Am 6 I answering your question? 7 LORD JUSTICE LEVESON: Yes. 8 A. Then I think we went to the point about how a lot of 9 this is unattributable, and this comes back again to 10 that point. If news is what someone somewhere doesn't 11 want you to know, then very often at the point where you 12 start to motivate a human source, you run into a genuine 13 problem on their part. They will say, "Look, if I talk 14 to you and they realise I've done this, I will lose my 15 job or my career or I will be beaten up or I will be 16 arrested or some terrible thing is going to happen", and 17 it's a very sensitive moment. You have to make these 18 people safe. 19 The first step almost all the time is about 20 a guarantee of anonymity. "They won't know you've talked 21 to me." That's actually quite a complicated piece 22 because it isn't simply a question of saying, "I won't 23 put your name in the paper." It also means I have to 24 filter the material they give me because if I publish 25 too much it would become clear by implication as to who 66 1 they are. 2 In this particular context, if we come back to 3 something I mentioned briefly that Richard Peppiatt 4 mentioned and I know the NUJ have mentioned, it's a very 5 important part of this picture that there is a culture 6 of bullying in some Fleet Street newspapers, and so it's 7 not just a question of "I'll lose my job". It's nastier 8 than that, and the fear is real, and therefore you would 9 have a high proportion of these sources saying, "I will 10 talk to you but only on this condition of anonymity", 11 and I appreciate that's very difficult for the Inquiry. 12 It means that I've been able to look not only at the 13 public domain sources but to deal with the human 14 sources, and then, to answer a question you asked, to 15 see how it overlaps. If you have, say, 10 or 15 16 different former reporters from the News of the World 17 each independently sketching essentially the same 18 picture, it's a reasonable judgment that any human being 19 using common sense would come to, to say, "These people 20 are telling me the truth." If, in addition, you can 21 find other evidence from the our routes, you'll be all 22 the more solid. 23 LORD JUSTICE LEVESON: I understand that and the 24 explanation, I think, is tremendously important not just 25 for me but for anybody who's following this Inquiry, 67 1 because it then goes on you to the question in relation 2 to the topics about which you are going to be asked, how 3 overlapping that information is. 4 A. Mm-hm. 5 LORD JUSTICE LEVESON: I think that was one of Mr Jay's 6 questions. How many people are we talking about? Not 7 to identify them -- 8 A. Understood. 9 LORD JUSTICE LEVESON: -- but to seek to validate the 10 conclusions that you've reached, as opposed to an 11 individual person who comes and says X and then somebody 12 else says, "Well, that's rubbish. It's not X." 13 A. Okay. So I think you were asking specifically about the 14 phone hacking story? 15 MR JAY: Yes. 16 A. If we start there. 17 MR JAY: Yes. 18 A. There's a loose assembly of about, I would think, 19 between 15 and 20 former News of the World journalists 20 who have talked, on condition of anonymity, in detail to 21 me or a researcher who was working for me, and they've 22 been a tremendously important engine driving the story 23 forward. 24 Separately, within the private investigation 25 industry, profession, there are some -- I suppose you 68 1 could call them senior investigators, who are very 2 worried by the activities of people they would see as 3 cowboys, who they see damaging the reputation of their 4 industry, and again, on condition of anonymity, there 5 are, I suppose, more like four or five or six -- I'm 6 finding it a little -- but around that number, but no 7 more than half a dozen, but who have again been 8 tremendously helpful, partly about the generality of how 9 they operate, about the skills they use, and also, I 10 think with all six, about work for newspapers. 11 So that's two big pools of people. The former 12 journalists, the PIs, the private investigators. 13 There's a third pool, which are the victims and 14 their legal actions, who overlap to a considerable 15 extent. So if a reporter says, "So-and-so was a victim 16 of the hacking", then I go to the public figure or their 17 representative and say, "Well, they're saying this. 18 Does this coincide with anything you know about?" And 19 they may say -- I mean, at the top end of the scale, 20 they may say, "Operation Weeting have just been on my 21 doorstep. It's definitely true." At the lower end of 22 the scale, it's: "You know, I always suspected it. 23 There were these occasions." And then you start this 24 checking and overlapping business. So those these pools 25 of people would be very important. 69 1 There are other sources which are very sensitive who 2 are, I would say, familiar with things that the police 3 have been doing, who have also been very, I think, brave 4 and helpful on this story. There are probably others, 5 but there's -- does that help you? There's a lot on the 6 News of the World. 7 Q. Yes, I think that's probably as far as you'd want to go 8 in terms of identifying the different categories of 9 sources; is that right? 10 A. Yes. 11 Q. In relation to chapter 7 of your book, "Flat Earth 12 News", the chapter entitled, "The Dark Arts", is it the 13 same methodology which you are applying in general 14 terms? Because it's clear from that that you are 15 talking to private investigators, you're talking to 16 reporters or former reporters. 17 A. Yes. 18 Q. Are you talking to those close to the police or within 19 the police? 20 A. I think "close to" would be fair. 21 Q. "Close to". In terms of quantity, though -- for 22 example, if you're talking about a particular title -- 23 you mention a number of titles in chapter 7 -- how many 24 reporters are you speaking to before you have, as it 25 were, a critical mass which would justify he you putting 70 1 it in print? 2 A. I would say a dozen. In almost all cases, around about 3 a dozen, perhaps a little more. 4 LORD JUSTICE LEVESON: That's in relation to each title? 5 A. Correct, and they tend to be former rather than current. 6 There's public domain stuff, of course, on my first 7 primary route. 8 LORD JUSTICE LEVESON: But it's the same sort of exercise? 9 In relation of each of the features of which you speak, 10 it's the same approach, the same sort of validation, or 11 is it different? 12 A. No, it's exactly the same approach that I tried to 13 describe at the beginning, the public domain and the 14 human sources. In respect of each title, we have sort 15 of 12 to 15 sources. That doesn't, of course, mean that 16 in respect of each allegation in relation to each title 17 you have 12 to 15 sources, but you're going to have more 18 than one on any allegation. It's a bit difficult to 19 talk about it in such general terms. Sometimes you can 20 have several sources very precisely saying the same 21 thing. On other occasions, you have a source who -- one 22 source is saying it very precisely, the other person is 23 confirming it in more general terms, and then you may 24 have bits and pieces of public domain or whatever. 25 It's worth pointing out that a book like that 71 1 doesn't get published without going through a specialist 2 media lawyer and they comb through it and produce a long 3 memo saying, "How can you justify this and why would you 4 print that?" and they won't publish -- it gets amended 5 as a result of that process and they won't publish 6 unless they feel they can justify it. 7 LORD JUSTICE LEVESON: The reason this is obviously very 8 important is because you are aware some people don't 9 entirely agree with everything you write in that 10 chapter. 11 A. Of course. 12 LORD JUSTICE LEVESON: And to get to grips with what is the 13 culture, practice and ethics of the press, inevitably 14 I'm looking at all the material, and each editor will 15 come along and tell me what they want to say, but 16 therefore I have to get some handle on validity and 17 indeed weight. You know, I'm sure, that I'm concerned 18 about anonymous evidence and hearsay is actually a form 19 of anonymous evidence, so I can only test it through 20 you. 21 A. Yes. I accept that there is that difficulty with what 22 I have to tell you, and I will tell you the truth as 23 much as I possibly can. To the extent that I can give 24 you the evidence I will, but I accept that it's 25 frustrating for the Inquiry that so much of this has 72 1 come from people who are off the record. 2 LORD JUSTICE LEVESON: It may be inevitable for the reasons 3 that you've identified. 4 A. There is going to be a gap, isn't there, between what 5 I know and what I can show you. 6 LORD JUSTICE LEVESON: Yes. I understand. 7 Right, I won't interrupt you again, Mr Jay, or at 8 least probably won't. Possibly won't. 9 MR JAY: We'll come back to this when we look at chapter 7, 10 but can I deal with your more general evidence about 11 systems at the Guardian. This is your witness 12 statement. At paragraph 5, you say: 13 "The Guardian has a particularly clear commitment to 14 ethical journalism." 15 A. Mm-hm. 16 Q. In terms it of the code of conduct of the PCC, is that 17 provided to all journalists, including journalists in 18 your position? 19 A. Yes. There's actually -- the Guardian has its own code 20 and the PCC is part of it as an appendix. 21 Q. And the NUJ code, again, is a separate code, I believe; 22 is that right? 23 A. Yeah. I think it's fair to say it's less often referred 24 to, but in terms it's more or less the same. 25 Q. In terms of accountability, the chain -- or the line 73 1 going up from you is the news editor and then, if 2 necessary, the editor in-chief; is that right? 3 A. Yes. 4 Q. That presumably is standard practice in the whole of the 5 industry with minor deviations? 6 A. Yes, I would think so, and I think I made the point in 7 there that the people who, generally speaking, are 8 enforcing the code aren't the PCC or the NUJ or 9 whatever. They're in the background. It's the news 10 desk, the features desk, whatever that you're working 11 for, who are going to say, "Hang on a minute." 12 Q. You say in paragraph 6 that the concept of public 13 interest is particularly slippery. 14 A. Mm-hm. Paragraph 6? Oh yes, I'm with you. 15 Q. "Slippery" can mean a number of things. What are you 16 seeking to convey by the use of that -- 17 A. What I'm trying to say is that -- first of all, if we 18 all get over the first hurdle that we understand that 19 operating in the public interest means we're operating 20 in the interests of the public, trying to tell them 21 something that is good, that they need to know. In 22 operational day-to-day terms, it's terribly difficult to 23 know exactly where the boundary lines are, and so 24 sometimes this is a legal point. Section 55 of the Data 25 Protection Act says you have a public interest defence. 74 1 If I'm working on a particular story in particular 2 circumstances, do I or do I not have the public interest 3 on my side? The answer very often is: I don't have the 4 faintest idea because we don't know where the boundary 5 lines are. Not because I'm not thinking about it and 6 not because the Guardian aren't interested; we don't 7 know quite where the lines are supposed to lie. And 8 that problem, I think, applies across the board over and 9 over again to any ethical question that reporters face. 10 The answer tends to be: well, it would be all right if 11 it was in the public interest, but we're stymied because 12 in reality we don't -- I mean, there are some cases 13 where it's clear. They're so far over the boundary line 14 that we know that the public interest is on our side or 15 it isn't on our side, but very often, it isn't clear and 16 personally, I would like it if somebody set up, by 17 statute, a public interest advisory body that I or 18 a member of the public or a private investigator could 19 go to and get high-quality advice which would be 20 confidential, but in the event of a dispute, a criminal 21 prosecution or a civil action, I would be able to 22 produce that advice and say, "Well, look, this is what 23 I was told." So they'd have no prior restraint on me, 24 but I would have some guidance which was weighty in the 25 event of a dispute. 75 1 Q. I've received a message, Mr Davies. It's no fault of 2 anybody's. I think you're going slightly too fast for 3 our transcriber. 4 A. Sorry. I'll try to slow down. 5 Q. One notch only. Your evidence is coming across very 6 clearly, but it does have to be written down. 7 A. Okay. 8 Q. Can I seek to analyse what you've just said in this way. 9 Is the problem that in many cases you don't know where 10 the public interest lies because you don't know what the 11 truth of the story is or you don't know where your 12 investigations might lead, and so -- 13 A. No. 14 Q. No? 15 A. That's not the problem. The problem is that we don't 16 know where the boundary line is, so ... 17 Well, one way of approaching it is this. Different 18 journalists have completely different definitions. So 19 people from the News of the World will tell you, in all 20 sincerity, that it was in the public interest that they 21 exposed Max Mosley's sex life. I profoundly and 22 sincerely disagree with them. I do not think that was 23 in the public interest. 24 Now, I understand that the courts came down, so to 25 speak, on my side of the argument. They still haven't 76 1 persuaded those other journalists that they're wrong. 2 They sincerely believe that the boundary line is in 3 a different place and there have been some cases -- for 4 example, the John Terry case -- where the courts 5 themselves have danced on both sides of the line, at 6 first saying the story about John Terry having an affair 7 is confidential and then jumping over the line and 8 saying, "No, actually, it's in the public interest that 9 this be disclosed", and if the courts aren't clear, how 10 am I supposed to be the clear, the hack with the 11 notebook? 12 Q. Yes. 13 A. It's not about not knowing the details of the story; 14 it's about not knowing what the rule is in operational 15 terms. Does that make sense? 16 Q. It does and it doesn't because you, of course, are not 17 writing this type of story. You're writing a different 18 type of story. Are you able to assist us with perhaps 19 even a hypothetical example or an accurate example, 20 sufficiently anonymised, where the moral dilemma or the 21 ethical dilemma is laid bear for us? 22 A. Well, we had a huge problem with the Wikileaks stuff. 23 Because in the middle of all this phonehacking, I went 24 off and persuaded Julian Assange to give all this 25 material to the Guardian and the New York Times and 77 1 Der Spiegel, and it rapidly became apparent that that 2 material contained information which could get people on 3 the ground in Afghanistan seriously hurt. They were 4 implicit identified as sources of information for the 5 coalition forces. 6 I raised this with Julian very early on and he said, 7 "If an Afghan civilian gives information to Coalition 8 forces, they deserve to die. They are informers. They 9 are collaborators." And there were huge tussles between 10 the journalists and him -- actually, maybe this isn't 11 a terrible good example because I would say emphatically 12 it's absolutely clear that we couldn't publish that 13 information and didn't, but he did. I would love to 14 have been able to go to a specialist advisory body and 15 say, "Where is the public interest here?" in order to be 16 able to show it to him, to persuade him. 17 The other example I gave in the statement was that 18 although the Data Protection Act has a public interest 19 defence, which in principle would allow me, in some 20 circumstances, to blag information from a bank account 21 or the DVLA, I've never ever used it because I wouldn't 22 feel safe, because I don't know where the 23 Information Commissioner is going to say the boundary 24 line is. All I know is that he said in principle he 25 would expect to see very strong public interest before 78 1 he would acknowledge the validity of that defence. 2 Is this making sense? 3 LORD JUSTICE LEVESON: Yes, I understand exactly what you're 4 saying. 5 A. There's another example I've just thought of. We have 6 to be a bit careful about this because this is 7 information that's not been published. About six years 8 ago, there was a senior politician in this country whose 9 child attempted suicide. This is a story which we have 10 never published and it's very, very debatable as to 11 whether or not we should have done. You will hear 12 journalists debating it because it became politically 13 significant for that politician's career that the child 14 had done this, and yet we never reported it. 15 Or another one: should we or should we not have 16 reported the fact that Prince Harry was fighting in 17 Afghanistan? That's probably a better example. You 18 remember this? Prince Harry was sent to Afghanistan. 19 Before he went, the army and the palace called in 20 newspapers and said, "This is what we're doing. We're 21 going to send Harry to Afghanistan. Will you please 22 black it out, not report it?" And newspapers agreed not 23 to publish it on the basis that if they did, it would 24 bring down extra fire on him and the other people in his 25 squadron and we didn't want to be responsible for that. 79 1 That looks pretty like good thinking. On the other 2 hand, it meant that we were colluding in what then 3 became PR story, because when the story was finally 4 released, the headline was "Harry the hero", but in fact 5 we had offered him an extra layer of protection by doing 6 that, and what I -- 7 LORD JUSTICE LEVESON: I'm not sure that's right, actually. 8 What you'd done was you had given him the same layer of 9 protection that all his colleagues had. You hadn't 10 added an extra layer of protection. 11 A. But the crucial words are -- you said, "I'm not sure 12 that you're r right." 13 LORD JUSTICE LEVESON: Oh yes, that's because I'm polite. 14 A. But I would say, without any hint of politeness, I'm not 15 sure, you see, what was right then. I tell you, my 16 initial reaction to that was that we were right to 17 suppress the information for the safety of those people 18 involved. After I'd thought about it for a few days, 19 I changed my mind and thought it was wrong that we did 20 that and the fact -- the collusion factor was part of 21 it. There's another example -- 22 LORD JUSTICE LEVESON: I'm happy to have more examples 23 because this is tremendously important, and I am going 24 to want to come back at the end of your evidence to talk 25 about the bodies that you think ought to be in place, as 80 1 I'm sure Mr Jay, the structures that you think ought to 2 be in place. But can I just say this: that you've 3 mentioned a story that didn't enter the public domain. 4 I absolutely would not want anybody to report what 5 you've said and then to start reinquiry as to whether 6 that's sensible, as to who it might be or anything. 7 That is not the purpose of this Inquiry and I hope that 8 everybody will take that point extremely seriously. 9 I'm sorry, I -- 10 A. You're right. I also feel the same way. 11 LORD JUSTICE LEVESON: Right. 12 MR JAY: Thank you. 13 Mr Davies, you deal with some other general evidence 14 about systems in the Guardian, which others doubtless 15 will give as well, but can I just touch on one issue in 16 paragraph 9, namely legal advice and in-house lawyer. 17 A. Mm-hm. 18 Q. All your stories presumably are checked? 19 A. Mm-hm. 20 Q. For defamation and accuracy; is that right? 21 A. By the lawyer, yeah, for contempt or any other issues. 22 Q. And someone forms a judgment a priori, I suppose, as to 23 whether a story is potentially legally contentious, in 24 which case the legal scrutiny is more intense, or 25 whether it appears more uncontroversial, in which case 81 1 it's -- I wouldn't say cursory, but it's less 2 microscopic; is that right? 3 A. Roughly speaking, yes. 4 Q. In paragraph 11, you deal with ethical issues in 5 general. The key point you're making here perhaps is 6 that the commercial imperatives which drive some 7 journalism are not as clearly in play or in play at all 8 in relation to this particular title. 9 A. This particular ...? 10 Q. Title. In other words, the Guardian? 11 A. Yes. The Guardian is a little bit different to other 12 newspapers because it belongs to a trust. Therefore it 13 doesn't have to generate lots of money to pass back to 14 its shareholders, and I think that that does have 15 a really important knock-on effect on the internal 16 culture of the paper. It's the corollary to what 17 Richard Peppiatt was talking about earlier on, that 18 where you have a highly competitive, commercially driven 19 newspaper, that will get passed down from the chief 20 executive and the management side to the editor, down 21 through the desks and to the reporters. In a way, all 22 this story starts with geography. You happen to have in 23 this country a population of 50 to 60 million people who 24 for decades have been within a train ride's distance -- 25 within an overnight's train ride's distance of London 82 1 and Glasgow. So you've been able to publish newspapers 2 and reach that very, very dense, highly populated 3 market. 4 So you have a hugely competitive national newspaper 5 market. When you compare it to the United States, 6 a population, say, five times the size, scattered over 7 a huge geographical area, so you couldn't possibly print 8 a newspaper in New York, put it on a train and reach LA. 9 So they grew up with city papers, not national papers, 10 by and large, and you get one or two in each city. 11 I hope this is relevant, but if you look at our 12 national newspaper market, the first -- (a) that is very 13 important. I don't know whether there's a more 14 commercially newspaper competitive market in the world. 15 And within that market, the popular newspapers rely 16 overwhelmingly on selling the papers to earn their 17 income. The broadsheets, as they've always 18 traditionally been called, by contrast rely far more on 19 advertising, selling advertising space to get their 20 income. 21 So within that highly competitive market, it's the 22 popular newspapers that are trying to sell in the 23 millions where that commercial imperative is at its most 24 intense, and it gets passed down through the ranks, as 25 I think Richard was trying to describe and is often 83 1 reinforced which the bullying which I have a referred 2 to. 3 The broadsheets have less commercial imperative. 4 Still they have to sell copies to justify their 5 advertising income, but not as many copies. It isn't as 6 intense and within that less intense end of the market, 7 a newspaper like the Guardian that's owned by a trust is 8 less intense again in its commercial pressure. It is 9 nonetheless there -- we have to survive -- but it's 10 mitigated. 11 Does that make sense? 12 LORD JUSTICE LEVESON: Yes, certainly. Again, I'm 13 interrupting. I shouldn't do that. But at one stage 14 I'm going to want you to talk about the different 15 imperatives, if you can, that face broadsheets like the 16 Guardian, which has one type of audience, and the 17 mid-market or tabloid end, which has a different type of 18 audience, sells many, many more copies, and whether the 19 same considerations which you've been discussing really 20 apply to the different types of story that these 21 different newspapers promote. 22 A. But do you want me to talk about that now or -- 23 LORD JUSTICE LEVESON: Well -- please do. 24 A. To take you up on -- because I think I've given the 25 answer already, which is that the commercial 84 1 considerations are reduced in the broadsheet paper, and 2 in particular the broadsheet paper owned by the trust. 3 What I'm arguing for is that -- journalism doesn't begin 4 with checking facts. There's a prior stage of selective 5 judgment. What subjects should we cover? Having 6 decided to cover this subject, what angle should we 7 take? What priority do we give it in the bulletin or 8 the paper? At what length, with what language? This is 9 all highly selective. How should we make those 10 selective judgments? Overwhelmingly, they are made on 11 commercial grounds. So we want the story which is quick 12 and cheap to do, which is why we recycle agency copy and 13 other people's stories. We want the story that will 14 sell papers, so therefore you pick the sexiest possible 15 way of telling it. 16 The problems that are associated with that I think 17 spread across the spectrum. I'm not exempting the 18 Guardian from problems. We have run stories which were 19 clearly false. The Jersey children's home -- do you 20 remember that, a couple of years ago -- where the idea 21 was that the police had evidence that children had been 22 killed and buried in the ruins of an old children's home 23 on the isle of Jersey. That's a classic of what Richard 24 was trying to describe earlier. The evidence for the 25 truth of that proposition is screaming its falsehood. 85 1 So, for example, the police said, "We have been looking 2 into the ruins of this building and we have found 3 a cellar which is exactly like the cellar which is 4 described by our survivor witnesses." It's "very dark". 5 Cellars are dark. It means nothing. Then they said, 6 "And in this cellar we found a bath", and it's quite 7 alarming, this, the sort of hints of torturing. "It's 8 actually bolted to the floor", as though everybody's 9 bath was mobile. It's silly. It doesn't make any 10 sense. 11 So then the problem that occurred on all newspapers 12 across the whole spectrum is it's too good a story to 13 knock down. So it's exactly what Richard was saying. 14 A reporter from any paper is sent out to Jersey to 15 follow up on this story. The reporter who rings up and 16 says, "Actually, this is crap, there's just no evidence 17 for this at all", they will not be thanked. It's 18 a great story. 19 I actually ran a piece in the Media Guardian, 20 saying, "What are we talking about?" I was speaking 21 about this in public meetings. I actually bet one 22 meeting my left finger if the story was true, but 23 nevertheless we carried on running it. 24 So it's a problem that spreads to some degree across 25 Fleet Street, commercial judgments. 86 1 LORD JUSTICE LEVESON: Yes, I understand. 2 A. Okay. 3 LORD JUSTICE LEVESON: Now I put the reason for my question, 4 because I have been -- "criticised" is not too high 5 a word -- for approaching the issue without tabloid 6 expertise, and I'm keen to understand the extent to 7 which the issues -- it may be the subject matter is 8 different, but the issues should be different whatever 9 title you're working for. Do you understand the point 10 I'm making? 11 A. Yes, okay. There are differences of degree, rather than 12 kind, I suppose is one way of summarising it. 13 MR JAY: Thank you. May I deal with the general issue in 14 relation to sources. This is paragraph 14 of your 15 statement. 16 A. Mm-hm. 17 Q. You make it clear that you never pay your sources for 18 their assistance, and in the middle of the page: 19 "Similarly, I have never come across the Guardian 20 paying police, public officials or mobile phone 21 companies." 22 A. Mm-hm. 23 Q. That's your direct experience, is it, Mr Davies? 24 A. Yes. Well, yes, it's a negative experience, isn't it, 25 but it is mine. 87 1 Q. Then you say: 2 "For the sake of completeness ..." 3 That occasionally a meal or a drink is bought, as 4 you might expect. The question is probably so obvious 5 it goes without saying, but what are the ethical 6 ramifications of paying for stories? 7 A. Generally speaking? 8 Q. Yes, and why don't you pay for stories? 9 A. I've said in the statement that I think the issue is not 10 primarily ethical. I'm not one of those people who says 11 chequebook journalism is inherently evil. I think it's 12 a practical question. So if you go back to my business 13 about the human sources on that primary route, the key 14 thing we have to do -- sometimes easy, sometimes 15 terribly difficult -- is to motivate people to talk to 16 us. People of -- like I have to be able to get the 17 12-year-old child prostitute to talk to me, and the 18 police officer who is trying to arrest her, and the 19 social worker who can't control her, and the pimp who's 20 taking money off her. All of them I have to persuade to 21 talk to me, and the way to do that with success is to 22 find a motivation and build a relationship. It's the 23 most exciting, interesting thing in reporting. If you 24 pay -- and this is why I say it's practical, not 25 ethical -- (a) there is a chance that you're giving 88 1 these people a motive to fabricate, to earn their money, 2 and (b) at best, you get a very limited amount of 3 co-operation. 4 So there have been occasions when I've been, so to 5 speak, competing with tabloid journalists for the same 6 story and they've gone in with their chequebooks. If 7 you could quantify it, they've got the first couple of 8 pages of the story but I got the whole chapter because 9 people decided they want to help. That, I think, is 10 where the problem is. You see, practical rather than 11 ethical. 12 There's a subsidiary point where clearly if you -- 13 if a journalist or anybody else is offering to pay money 14 in contravention of the Bribery Act, then there's 15 a legal problem, clearly. 16 Q. As regards the specific example you've given about child 17 prostitution -- you cover this in detail in 18 paragraph 20, which is 03000. You make it clear that in 19 order properly to investigate that case, you were paying 20 no more than £20 to the children involved, which is, of 21 course, equivalent to the pathetically small amounts 22 they would obtain from those purchasing their services. 23 A. Yes, it was the only example I could think of where I'd 24 paid people. It isn't actually paying to motivate them. 25 It's paying to -- I don't know, it was partly to 89 1 compensate them for the money they weren't earning, but 2 I said in here too, I just -- I'd rather they got 20 3 quid from me than from some businessman doing something 4 horrible on his way home. I mean, these are children 5 we're talking about. 6 Q. On public interest -- you've covered this already -- 7 paragraph 21, the bottom of the same page, you refer to 8 the kind of ethical mist. You've told us about the 9 difficulties with Section 55, although no journalist has 10 ever sought to rely on it. 11 But you do provide us with two specific or three 12 specific examples on the next page, 03001. 13 A. Oh yeah, I'd forgotten about these. 14 Q. The first of these is so famous we need not dwell on it 15 overmuch, but this is an internal News of the World 16 email which you supplied to the CMS Select Committee 17 in July 2009. 18 A. Yes, and the point is I redacted -- 19 Q. You redacted the transcripts. 20 A. Yes, to protect the privacy of those involved. 21 Q. Then you refer, in the next example: 22 "The Guardian was offered a story about a former 23 cabinet minister whose voicemail was hacked." 24 You felt that that went too far in terms of a breach 25 of privacy? 90 1 A. Yes. The story wasn't offered to me. It was offered to 2 another reporter, who said, "What do you think?" And 3 I said I do not think we should be reproducing anything 4 which rebreaches this man's privacy, so let's not do it. 5 It's a judgment call. I don't know -- 6 LORD JUSTICE LEVESON: It's been one of the great problems 7 that I've had for the last week, that I've been inviting 8 people to breach their own privacy by telling me about 9 breaches of privacy. 10 A. It is a problem, isn't it? 11 MR JAY: Then the third example, where the public interest, 12 as it were, fell the other way, is the -- 13 A. Oh yes. 14 Q. -- piece you wrote along with a colleague, Amelia Hill, 15 in the Guardian on 4 July 2011, breaking the story about 16 the hacking of Milly Dowler's voicemail. 17 A. Yes. 18 Q. We have that, I'm sure everybody has seen it, under our 19 tab 3. 20 A. Mm-hm. There the question was whether or not we were 21 digging up the grief of the family again by publishing 22 this story. 23 Q. We know what the outcome of the balancing exercise was, 24 but why, in a nutshell, did you come down in favour of 25 publication? 91 1 A. This is tricky stuff, but -- so I think first, what we 2 were disclosing was so important that we needed to find 3 some way of getting it into the public domain. On the 4 other hand, you know, the family have been through hell. 5 I really was worried about digging it up. So the step 6 that we took to try to reduce the impact for the family 7 was that via Surrey Police we sent a detailed message 8 saying, "Look, here's what we are preparing by way of 9 the story. This is just to alert you to the fact that 10 we're expecting to publish this within the next 48 11 hours." 12 I think they were actually on holiday but they came 13 back, I think, in time to get that message. So that was 14 the best we could do in the circumstances. I think it 15 was absolutely was right to get it into the public 16 domain, and I think Mrs Dowler gave evidence about this, 17 that she was upset by the story, which is -- you know, 18 I wish she hadn't been upset and we did what we could to 19 soften the impact by sending that detailed warning. 20 Q. You refer on the second page of this article -- 21 A. What's the tab number? 22 Q. Tab 3 of the bundle we've prepared. Level with the 23 upper hole punch, Mr Davies. 24 A. Yes. 25 Q. The deletion of the messages. You say, four lines down: 92 1 "According to one source, this had a devastating 2 effect." 3 We heard about that directly from the Dowlers. 4 A. Yes. 5 Q. You're not going to tell us who that source is, so 6 I won't even ask you, but -- 7 A. It's better not to. 8 Q. Thank you. A bit later down, you refer to a senior 9 source familiar with the Surrey Police investigation. 10 A. Yes. 11 Q. Can I ask you this question, without naming anybody: do 12 you happen to know who it was who hacked into 13 Milly Dowler's voicemails? 14 A. There's two stages to this. The facilitator was 15 Glenn Mulcaire. There's a misunderstanding, I think, 16 around the way that he operates. He doesn't actually, 17 on the whole, do the listening to the messages himself. 18 Most of that is done by the journalist themselves. 19 Mulcaire's job was to enable them to do that where there 20 was some problem, because he's a brilliant blagger, so 21 he could get information, data, from the mobile phone 22 company. And occasionally I think he did special 23 projects. I think perhaps the royal household would be 24 an example. 25 So if you ask who hacked Milly's voicemail, the 93 1 answer is that Mulcaire facilitated the hacking by one 2 or more News of the World journalists and our 3 understanding of the facts is that it was one or more of 4 the News of the World journalists who then had to delete 5 the messages in order to enable more to come through. 6 Q. That's helpful. I think that's as far as we can 7 properly take it but it explains one or two statements 8 which have been put in the public domain at the time 9 that the Dowlers' evidence was given to this Inquiry. 10 Before I come to the dark arts and your book, may 11 I deal with a couple of points in relation to the PCC. 12 Under tab 2, you'll find, I hope, some evidence you gave 13 to the Select Committee on 21 April 2009, together with 14 Professor Greenslade. You were, as it were, a double 15 act on that day and I think he's in the room today. We 16 can read that carefully for ourselves. Indeed, some of 17 us have done beforehand. 18 Just alight upon something you've said. At page 131 19 at the top right-hand side, Mr Davies. 20 A. Mm-hm. 131 the top right, yes. 21 Q. Professor Greenslade talks about the McCanns. 22 A. Are you sort of there in the middle of that column? 23 Q. Yes. 24 A. The McCanns were a classic case? 25 Q. Yes. Just noting that and we'll skim-read that, but 94 1 that may or may not chime with evidence we heard last 2 week. Indeed it probably does. But at the bottom of 3 the page, question 434, you were asked: 4 "How effective do you think the PCC is in upholding 5 standards?" 6 Without reading this out, Mr Davies, what in summary 7 did you say to this Inquiry about the effectiveness of 8 the PCC? 9 A. In relation to the McCanns specifically? 10 Q. More generally, I think. 11 A. I think that the history of the PCC's performance 12 undermines the whole concept of self-regulation. 13 Re-reading this evidence, because you sent it to me at 14 the end of last week, I noticed that I was speaking up 15 for self-regulation, but I wouldn't any more. I don't 16 think this is an industry that is interested in or 17 capable of self-regulation. 18 I think probably at this point I was at the edge of 19 that conclusion, but hadn't quite come to it. I think 20 I felt that perhaps the problems which I'd seen in the 21 PCC, particularly with handling the original outbreak of 22 phone hacking in 2006/7, the McCann case and the 23 Max Mosley case, might have been the result of the 24 particular chair and the particular director, and for me 25 there was a turning point in -- this is April '09. We 95 1 published the Gordon Taylor story in July, and 2 in November, the PCC published the second report on 3 phone hacking. Different personnel, different chair. 4 The former -- well, I think the same director, but the 5 man who is now director was involved in the production 6 of that report, Stephen Abell, who I regard as a good 7 man. 8 But the report was terrible. Just an awful piece of 9 work. You know, my editor resigned from the code 10 committee in protest. He went on the radio and said, 11 "This is worse than useless", which I think was an 12 understatement. And that shifted me across the line. 13 I just think -- I do not trust this industry to regulate 14 itself. I say this as I love reporting. I want us to 15 be free. You have a huge intellectual puzzle in front 16 of you. How do you regulate a free press? But it 17 obviously doesn't work. We're kidding ourselves if we 18 think it would, because it hasn't. 19 Q. This is the report, which is no longer on the PCC 20 website, which referred to, I paraphrase, some of the 21 Guardian's more dramatic claims not being borne out by 22 the evidence or words to that effect? 23 A. Yes, and along the way there was some slippery 24 behaviour, slippery handling of evidence. 25 Q. Now may I come to Flat Earth News. 96 1 A. Mm-hm. 2 LORD JUSTICE LEVESON: Just before you start, it's not just 3 an intellectual puzzle, Mr Davies, because it has to 4 work and it has to work for everybody. It has to work 5 for the press and it has to work for the public. 6 A. Yes. 7 LORD JUSTICE LEVESON: So it has some real practical issues. 8 A. Yes. I think the point you've just made there is 9 terribly important, that in the past what has tended to 10 happen is that whatever debate may have occurred -- for 11 example, in the Calcutt commissions, the model that has 12 emerged has been dominated by the needs and thinking of 13 Fleet Street, and no system that is designed within that 14 shape is going to succeed and be stable. It has to take 15 account of the victims of the media. That's the crucial 16 first step. We have to stop only thinking about the 17 freedom of the press and build in satisfactory ways for 18 those people to get remedy. 19 LORD JUSTICE LEVESON: Well, I hope that that thinking has 20 started, and I was impressed by some of the 21 contributions in that regard that were made at the 22 seminars. 23 A. Mm-hm. 24 LORD JUSTICE LEVESON: Because it's something that your 25 business has to think about and help me work out. 97 1 A. Mm. We're going to come to this later, did you say? 2 LORD JUSTICE LEVESON: I think we are, yes. 3 A. All right. 4 MR JAY: I have it in mind as sort of the -- not the coda to 5 your evidence, but at a later stage early in the 6 afternoon. 7 A. Okay. 8 Q. Sorry, but before I come to Flat Earth News, may I just 9 ask you a couple of questions about one piece, which is 10 under tab 5 in the bundle, Mr Davies. 11 A. Yes. 12 Q. It's a piece you wrote on 27 January 2011 in the 13 Guardian. 14 A. Hang on, there's lots of pieces in this tab. 15 Q. Yes. 16 A. What's it about? 17 Q. It's called "News of the World phone hacking, Nick 18 Davies' email to MPs". It's about a dozen pages into 19 tab 5? 20 A. I've found it. 21 Q. It's a six-page piece. I think what you're doing 22 here -- but correct me if I'm wrong and it's clear that 23 this is what you're doing. You sent some information to 24 the Select Committee and you're just publishing it in an 25 article in the Guardian; is that right? 98 1 A. Yes. This is a memo that I wrote for the Select 2 Committee that wasn't published and then they 3 eventually, months later, put it on their website and at 4 some moment, the Guardian ran it on the Guardian's 5 website. 6 Q. Can I just ask you about the third page, please? 7 A. Third page. Yes. 8 Q. Just to understand the source of your information, in 9 general terms to the extent to which you can assist, but 10 if there are sensitivities here, please tell me -- you 11 say at the top that: 12 "Paperwork held by the CPS shows that police began 13 their investigation in January 2006 by analysing data 14 held by phone companies. This revealed a vast number of 15 victims, indicated a vast array of offending behaviour, 16 but the prosecutors and police agreed not to investigate 17 all the available leads." 18 How do you know that? 19 A. Because a good human source showed me that paperwork. 20 Q. Fair enough. The same presumably applies to the next 21 paragraph: 22 "In addition, the CPS paperwork shows that 23 prosecutors were persuaded by the police to adopt 24 a policy of ringfencing evidence so that even within the 25 scope of the limited investigation, there would be 99 1 a further limit on the public use of evidence in order 2 to ensure that sensitive victims would not be named in 3 court." 4 So -- 5 A. Same source. 6 Q. That's the same source? 7 A. Yes. 8 Q. Then the next paragraph it's clear that the Guardian 9 made use of the Freedom of Information Act some 10 considerable time later, in January 2010, and that 11 demonstrated that at that stage there were 4,332 names 12 or partial names of people and in whom the men had an 13 interest. 14 The "men" you're referring to are Goodman, Mulcaire 15 and then generically one other man who has not been 16 charged; is that right? 17 A. Yeah. In August 8, 2006, the police arrested 18 Glenn Mulcaire, Clive Goodman and one other person, 19 whose identity I know but he's never been named in the 20 public domain. They seized material from those three. 21 Q. Indeed. 22 A. And my freedom of information request was a request for 23 a statistical summary of what was in that seized 24 material from those three people. And I put the 25 application in way back and Scotland Yard breached the 100 1 statutory requirement to reply within 20 working days. 2 That's why it didn't come through until January. 3 Q. We can guess what the primary source of the information 4 was. It was Mr Mulcaire's notebook, presumably, was it? 5 A. Yes, I think it would be. There's a little bit of 6 Goodman and a little bit of the third guy, but it's 7 going to be mostly Mulcaire. 8 Q. And so we understand your methods, if I can so describe 9 it, and you've told us about this earlier, the Freedom 10 of Information Act is a tool at your disposal. How 11 often, approximately, have you used it in order to 12 obtain information in the context of the phone hacking 13 issue? 14 A. Oh, on the phone hacking? Only two or three times. And 15 it got very complicated because they were being blocked 16 and knocked back and I seemed to get reviews and I had 17 to take an appeal to the ICO. I would think it's 18 a maximum of three different applications, but it may 19 have been that they started as only one or two and split 20 as different blockages occurred in the route. You see 21 what I mean? One went all the way to the 22 Information Commissioner's office before they gave in. 23 Q. Flat Earth News. 24 A. Mm-hm. 25 Q. Chapter 7. 101 1 A. Yes. 2 Q. We've photocopied relevant pages. I think they have 3 been provided to the technician, but if not, we'll 4 manage without them. At page 257 -- 5 A. 257? That's before. Hang on, 257? Are you sure? 6 Q. Between, sorry, it's between 256 and 259, doesn't 7 actually have a 257 at the bottom, but it's part 4 8 "Inside Story", "The Dark Arts" starts at 259. 9 A. Right. 10 Q. You caption it with a quote from Alastair Campbell, who 11 will explain what he meant by that in more detail 12 tomorrow. 13 A. Okay. 14 Q. 259, "The Dark Arts". You start off with a review of 15 the Information Commissioner's work, the raids in 16 relation to Mr Whittamore, as I was summarising to the 17 Inquiry when I opened the formal part of this Inquiry on 18 14 November. 19 Do I have this right, Mr Davies, that quite a lot of 20 this is material in the public domain, but it was 21 boosted or bolstered and substantiated by Freedom of 22 Information Act requests which you made of the 23 Information Commissioner's office? 24 A. Not quite right. So you have the two reports on 25 Operation Motorman that were published in 2006, freedom 102 1 of information applications that were made by 2 Michael Ashcroft, Lord Ashcroft, which then went into 3 the public domain when they were replied to, so they're 4 not mine, they were Lord Ashcroft's, and thirdly, direct 5 contact between myself and a member of the Whittamore 6 network. Possibly two members. 7 Q. Thank you. 8 A. And also I pestered the Information Commissioner's 9 office until they were blue in the face for bits and 10 pieces. 11 Q. And they -- 12 A. Gave me bits and pieces, but not as much as I wanted, 13 which is why the pestering went on. So it's that 14 overlap thing again. 15 LORD JUSTICE LEVESON: That's what journalists do. 16 MR JAY: You'll understand, Mr Davies, that on Thursday 17 we're going to be covering all of this with Mr Thomas. 18 A. Yes. 19 Q. Including Freedom of Information Act requests and an 20 analysis of the 13,343 requests you refer to at 21 page 260, so we're going into it all in considerable 22 detail. 23 A. Yes. 24 Q. It may not be necessary to cover all the ground with 25 you. 103 1 I'm asked to point out this to you, though. At the 2 bottom of page 262, if you just bear with me. You say 3 that the judge, who is His Honour Judge Samuels QC, 4 asked a highly relevant question. This is when the case 5 reached the -- 6 A. Blackfriars Crown Court. 7 Q. -- Crown Court at Blackfriars, and the question was 8 words to the effect: 9 "Where are the journalists?" 10 A. Mm-hm. 11 Q. You say at the bottom of the page: 12 "The prosecutor could not explain." 13 A. Yes. 14 Q. But I'm asked to put to you that the prosecutor could 15 and did explain that some journalists had been 16 interviewed and the decision was taken that there was 17 insufficient evidence to prosecute. Were you aware of 18 that? 19 A. I am aware that journalists were interviewed. That's 20 a statement of the fact; it isn't an explanation as to 21 why neither they nor the newspapers were prosecuted. Do 22 you see? 23 Q. Yes. 24 A. So that the prosecutor is simply restating the fact that 25 this hasn't happened. The question is: Why? That's one 104 1 of the things I was pestering the Information 2 Commissioner's office about and this is one of the 3 things this they did help me on. They explained, which 4 did not come out in court -- and correct me if I've got 5 this wrong, but I'm pretty sure that I'm right -- that 6 when they were looking at this prosecution, they said to 7 themselves, "If we prosecute the Fleet Street 8 newspapers, first, they will hire very expensive QCs and 9 we will have to do the same; secondly, they're going to 10 tie us up in endless pre-trial argument, which again is 11 going to be very expensive. We simply don't have the 12 legal budget to do this." 13 So that explanation, which was given to me by the 14 ICO subsequently, was not given, as I understand it, in 15 court. The explanation, do you see, as against the -- 16 somebody's shaking their head behind you. I don't know 17 whether it's -- 18 Q. Whether they are or not, I'm concentrating on what 19 you're saying. 20 LORD JUSTICE LEVESON: Don't you worry about anybody else. 21 A. Oh, sorry. 22 LORD JUSTICE LEVESON: They'll make their views clear at 23 some stage. 24 A. What I'm giving you is an accurate summary of what the 25 ICO told me, and in answer to your question, the 105 1 explanation for the fact of the non-prosecution of the 2 newspapers, I believe, was not expressed in court. 3 MR JAY: Are you able to tell us -- but if you can't, please 4 confirm it -- who it was at the Information 5 Commissioner's office who give you that explanation. 6 A. You know the truth is I cannot remember whether I spoke 7 to them on the basis that I wouldn't name them or not, 8 but it was an authoritative figure who knew what they 9 were talking about. I could check with the ICO and come 10 back to you. I think it's probably all right, but 11 I don't want to break the terms of the conversation. 12 I simply can't remember. Do you want me to follow up on 13 it? 14 Q. Not at this stage, Mr Davies. It's something that I can 15 take up with the relevant people on Thursday. 16 A. Okay. 17 Q. I'm just making a note on the transcript so that it 18 doesn't fall within any gaps, in case I don't remember 19 to. 20 You deal generally with the issue of journalists 21 over the next few pages to the top of page 265. 22 A. Yes. 23 Q. Presumably, Mr Davies, you, amongst others, would invite 24 the Inquiry to take this up with the former Information 25 Commissioner when he gives evidence on Thursday? 106 1 A. The specific issue being: why didn't you prosecute the 2 newspapers? 3 Q. Yes. 4 A. Yes. Have you -- am I allowed to ask, have you had 5 access to the raw material that the ICO obtained from 6 the Whittamore network? 7 Q. I don't normally answer questions. 8 A. I'm sorry. 9 LORD JUSTICE LEVESON: It works the other way around here. 10 A. What I'm trying to say is I did have access to that, as 11 you can tell from some of the stories I wrote on all of 12 it two years ago, and I'm not a lawyer, I'm 13 a journalist, but it seemed to me surprising that there 14 hadn't been a prosecution of the newspapers as well as 15 the PIs. 16 Q. The Inquiry has had access and the core participants 17 have seen it to material provided by the Information 18 Commissioner's Office which has not been made available 19 for (inaudible). 20 A. Okay. 21 Q. May I bring you forward, but possibly back in time, to 22 page 266 of "The Dark Arts" -- 23 A. Yes. 24 Q. -- where you embark upon a review of, really, the next 25 20 pages or so of a range of matters which, if you look 107 1 at page 266, about a third of the way down, you say 2 this: 3 "It's never easy to look back from the midst of the 4 epidemic and see how the germ first started to spread. 5 There has always been a little dirty play, a little 6 illegal stuff going on in the shadows of Fleet Street." 7 And what you undertake here, do I have this right, 8 Mr Davies, is a sort of historical review which brings 9 a narrative forward, starting perhaps from the 1970s 10 when the Commissioner at Scotland Yard, of course, was 11 Sir Robert Mark, when he carried out a massive clean-up 12 operation, as we all know, and you bring the story 13 forward to more or less the present day; is that right? 14 A. That's what I was trying to do, yes. 15 Q. So I can understand the position then, when you mention 16 Z, at page 267 -- 17 A. Yes? 18 Q. -- at about what point in time are we talking about? Is 19 this the 1980s or some different time period? 20 A. The timeframe of Z's activities on the behalf of 21 Fleet Street? 22 Q. Yes. 23 A. Begins in the early 1980s, I think 1982, but early 24 1980s, and stretches forward into the very recent past. 25 My belief is that he was still active at the time that 108 1 I was researching and writing the book. 2 Q. The nature of your information in relation to Z, can 3 I ask you this question: is there anything here in the 4 book which derives directly from Z himself? If you 5 don't want to answer that, just say so. 6 A. No, it doesn't come from Z himself. It's a combination 7 of exactly those two primary routes: public domain and 8 human. So, yeah. 9 Q. In terms of quantity, the number of human sources, are 10 we talking the same sort of numbers as you've mentioned 11 previously, about a dozen, or are we talking some 12 different number? 13 A. Okay. First of all, this guy is very well-known, so 14 I covered -- when he was originally tried for police 15 corruption, I covered his trial. His activity for 16 newspapers is something I already knew about, just 17 because I'm a reporter and was aware of him. So that's 18 a slightly unusual aspect of it, that I'd already come 19 across him. 20 Sources? Gosh. I would think you have five or six 21 individuals who I spoke to during the research of the 22 book about his activity, and -- I think it's all right 23 to say this -- one of the things that happened was 24 after -- I told you how I stumbled into this, people 25 started talking about him: "Christ, I remember him". So 109 1 I then contacted Scotland Yard and asked somebody I know 2 there who is reasonably senior, "Will you brief me on 3 this?" I think one of the things that had emerged -- 4 I have to be careful not to identify -- along the way 5 there had been an operation by Scotland Yard to 6 prosecute this individual, Z, to stop him acting as 7 a go-between between newspapers and corrupt officers, 8 and therefore that was a clear signal that there were 9 people in Scotland Yard who were aware of his activities 10 and trying to stop him. So I tried to get into that 11 part of the Yard and somebody senior came and met me in 12 a hotel lobby and spent several hours helping me out 13 with the history of this man's activity as they knew it. 14 So it's the sort of four, five, six reporters during 15 the research, the Yard briefing, various public domain 16 sources, there are two trials here -- one of which 17 I covered, the other which I wrote about; the second 18 trial comes from the attempt to stop him -- and then my 19 own background knowledge. 20 Q. Page 269, you mention a particular private investigator. 21 A. Yes. Right up the top? 22 Q. Yes. 23 A. Yeah, gotcha. 24 Q. The Inquiry doesn't really wish to go into the detail of 25 this at this stage, although it's right to say that this 110 1 particular individual has been the subject of Panorama 2 programmes, certainly one programme, I've seen it. 3 You're not the only one -- not to diminish what you're 4 saying -- who covers him as well. 5 A. No. 6 Q. Can I ask you though, please, about 271, the second 7 paragraph. When you say that these two were merely the 8 brand leaders: 9 "By the mid-1990s, Fleet Street was employing 10 several dozen different agents to break the law on its 11 behalf. Most were private investigators, a few were 12 ordinary civilians who developed the knack of blagging 13 confidential official out of banks and phone companies." 14 Then you refer to someone in Ruislip who was 15 regularly conning ex-directory numbers and itemised 16 phone bills out of BT. 17 Again, please, so that we understand the evidential 18 strength of this, the sources of your information? 19 A. Okay. So there you've got reporters from a lot of 20 different newspapers talking about their use of private 21 investigators, you've got some of the investigators who 22 I referred to, the kind of senior members of the 23 profession, helping me out, and you have some public 24 domain material. So the person from Ruislip was 25 convicted in the public domain and there were records of 111 1 that trial occurring. 2 I'm pretty sure that there was background in the ICO 3 as well. I don't know whether it was in the Motorman 4 reports or one of the other -- I think it might be in 5 the first Motorman report, there was quite a lot of 6 useful background on scale. This is from memory. 7 Q. There are four examples given, which correlate with what 8 you're just saying. 9 A. -- I haven't read it. 10 Q. At the start of the -- 11 A. Okay. 12 Q. Fair enough. The activities of these private 13 investigators, have I understood this paragraph 14 correctly, that in essence they were carrying out the 15 same sort of activities as Mr Whittamore and his team? 16 Or were they doing something different? 17 A. I think there's a possible -- at least five different 18 possible activities. So number one, blagging 19 information out of confidential databases. Two, there 20 are hints of voicemail hacking coming out. There are 21 hints of email hacking coming out. There are hints of 22 burglary coming out. And what's the other one? Oh, 23 corruption of police officers. 24 Q. Ransacking bins? 25 A. No, corruption of police officers is coming through 112 1 quite strong, and -- well, the bins is a rather quirky 2 thing on the side with a quirky bloke, but those five 3 activities are being talked about by reporters. If 4 we're talking just at that basic level of what people 5 are telling me, what the PIs are telling me, what the 6 reporters are telling me, they're covering those five 7 kinds of activities. 8 Q. Thank you. The relevance of Z bears particularly on the 9 issue of police corruption, I think; is that right? 10 A. Correct. 11 Q. We're perhaps in the realm of another module of this 12 Inquiry, but if I could be forgiven for asking you one 13 question about it -- or perhaps not just one, maybe more 14 than one -- are you able to give us any sense of the 15 scale of this activity? 16 A. Z's activity? 17 Q. In relation to the police. 18 A. It's very difficult to quantify it. I mean, I'm not 19 quite sure how cautious we're being about identifying 20 him, but when Scotland Yard attempted to stop him, they 21 mounted a prosecution, there was a trial. The trial did 22 not convict him; it acquitted him. There was some 23 coverage at that time where, for example, it was 24 suggested that every crime reporter in Fleet Street will 25 be drinking champagne tonight and there were crime 113 1 reporters being quoted saying, "This is a great day for 2 the freedom of the press." If you set this against what 3 reporters and PIs and Scotland Yard themselves are 4 saying about the man's activities, I think it's fair to 5 say that he was involved over a number of years in quite 6 casual activity, carrying cash from newspapers to 7 corrupt police officers, and that was particularly clear 8 from the police point of view, who I think felt really 9 frustrated and angry about what was going on. Because 10 this is not just about breach of privacy. There were 11 examples -- I can't remember whether I've given them in 12 the book, I can remember one of them which I was given, 13 but where active inquiries were impeded by the sale of 14 this information. 15 Q. Towards the top of page 272, you refer to a particular 16 title. 17 A. Mm-hm. 18 Q. You understand that there is a sensitivity about that? 19 A. Mm-hm. 20 Q. Can I understand, first of all, though, approximately 21 when did the events you describe at this point on 22 page 272 occur? 23 A. Hang on. I just have to read it so that I can catch up 24 with you. 25 Okay. I think we're here in the early and 114 1 mid-1990s. 2 Q. Possibly a bit earlier, I'm told, because the Mail's 3 offices moved to Kensington in 1989, and therefore if 4 there's drinking at the Wine Press in Fleet Street, it 5 must have been before then. Is that possible? 6 A. You've just identified the title. No, that doesn't make 7 any sense at all, does it? The Wine Press are an 8 innocent party in this. They're not responsible for 9 what goes on in their bar, but Wine Press was 10 a long-established watering hole for Fleet Street, 11 particularly for Fleet Street crime reporters and police 12 officers, and the fact that one particular newspaper 13 moved several miles to the west doesn't change the fact 14 that that's the pond where the fish are and the reporter 15 from that newspaper is going to go back. Everybody's 16 not going to follow them down the road. I'm confident 17 this is post '89. In fact, I'm confident this is early 18 and mid-1990s, as I described. 19 Q. I'm just putting a point to you. You have given the 20 answer and that's fine, Mr Davies. 21 How many reporters at the Mail gave you the 22 information you refer to, namely handing over quite 23 substantial amounts of cash? 24 A. Do you remember I said there are different layers of 25 detail, but there were three in particular who helped me 115 1 on that aspect of it. These are former Mail reporters. 2 Q. Was it known where the money was going? 3 A. Absolutely clearly. This is where it gets terribly 4 difficult because, for example, there was quite a lot of 5 specific detail with this particular story. This is how 6 we got the information. There was a clear indication of 7 who the recipient detective was, so who it is that Z is 8 passing the money to, how much was passed, but that's 9 what I was saying earlier on; it's not just a question 10 of concealing the identity of the journalist. If you 11 disclose the precise detail, then by implication you 12 identify the source. 13 I think it's fair to say that the Mail, who we've 14 identified now, are absolutely not alone here in their 15 relationship with Z. I think it was, as I say, casual 16 and widespread. 17 Q. Page 273. You deal with one particular matter, namely 18 access to a government database. 19 A. Mm-hm. 20 Q. The source you refer to with access to a government 21 database, who was that person? I'm not asking you to 22 identify the person, but give us some idea as to the 23 modus operandi here. Can you help us? 24 A. As to who's talking to me? 25 Q. Yes. 116 1 A. It says: a reporter who has now left the Mail. Again, 2 it's one of these things where you have a lot of 3 different reporters who have worked there talk about the 4 blagging of confidential data and then different 5 individuals go into different elements of detail on it. 6 Q. Presumably then -- is this right, Mr Davies -- towards 7 the bottom of page 273, it's the same point in relation 8 to the Sunday Times; is that right? 9 A. The point being? 10 Q. That it's probably former Sunday Times reporters who are 11 providing you with the information? 12 A. Yes. Again, you have about a dozen or 15 former 13 reporters who are talking and overlapping to different 14 degrees on different subjects. 15 Q. We note what you say at the top of page 274 about the 16 routine use of private investigators? 17 A. Mm-hm. 18 Q. One expert blagger told you -- have I understood it 19 correctly -- that he was working for the Sunday Times? 20 A. Yes. He's going back a bit. 21 Q. Back to about when? 22 A. I reckon late 80s, that particular person. He's one of 23 your kind of senior figures who doesn't like the way it 24 all took off. 25 Q. Then you refer, towards the bottom of page 274, to 117 1 a former reporter of the Times who then brought 2 proceedings against an employment tribunal. That's 3 Mr David Connett, is it? 4 A. This is the Sunday Times. Correct, and I sat in on that 5 Tribunal hearing and covered the evidence that came out. 6 So that's public domain again. 7 Q. Yes, and the ruling of the employment tribunal again is 8 a document in the public domain and we'll be looking at 9 it in due course. 10 You deal with someone else, this time the Sunday 11 Telegraph, at page 276. This is in relation to Dr David 12 Kelly. 13 A. Mm-hm. 14 Q. Then at 277, you point out that the -- or one of the 15 reporters at the Times used Steve Whittamore. 16 A. Mm-hm. 17 Q. I think it's clear from the table which is on the second 18 of the two Information Commissioner's reports, "What 19 price privacy now?" 20 A. Mm-hm. 21 Q. Although the Times only features -- 22 A. Marginally. 23 Q. -- in those single figures. Can I ask you about 24 a specific question I'm invited to put to you. 277, 25 two-thirds this of the way down, you say: 118 1 "Lord Ashcroft and another peer, Lord Levy, both had 2 their tax records blagged by somebody who appears to 3 have been working for the Sunday Times." 4 Then to look at Lord Levy in particular: 5 "Bogus calls were made to the Inland Revenue by 6 somebody posing as Lord Levy before the Sunday Times 7 wrote about his tax payments in June 2000 ..." 8 What happened there, I think, is that the Sunday 9 Times put this story to Lord Levy and Lord Levy applied 10 for an injunction to restrain publication. Were you 11 aware of that? 12 A. Sounds familiar. I'm not sure, but it sounds possible. 13 Q. Although in the end, the injunction was refused by 14 a High Court judge on public interest grounds. 15 A. It may well be. 16 LORD JUSTICE LEVESON: Is that a convenient moment, Mr Jay? 17 MR JAY: Sir, it is. We are on track in terms of the 18 overall timetable. I may need to conclude Mr Davies by 19 about quarter to 3. 20 LORD JUSTICE LEVESON: Very good. I just want to remind 21 everybody that although we're obviously looking at these 22 title by title, it is no part of this part of the 23 Inquiry to make decisions of fact about who did what to 24 whom, and I repeat that at various points so that nobody 25 should misunderstand the significance of what we're 119 1 doing. 2 MR JAY: Thank you. 3 LORD JUSTICE LEVESON: Thank you very much. 2 o'clock. 4 (1.01 pm) 5 (The luncheon adjournment) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 120 1 2 (2.00 pm) 3 MR JAY: Mr Davies, we're still on "The Dark Arts". We're 4 now onto Trojan horses, bottom of page 277. We heard 5 evidence about this yesterday from Mr Hunter, as you're 6 probably aware. 7 A. Hurst. 8 Q. Hurst. Pardon me. Can I ask you there about the 9 example you give in the middle of page 278, the mirror 10 wall device. That was used by a businessman, not 11 a journalist? 12 A. Yes. 13 Q. Relating to the tax affairs of Dame Shirley Porter. 14 A. I can't remember this bit at all. Keep going. Oh, 15 I see. It was not a journalist but a business -- yes. 16 LORD JUSTICE LEVESON: When you're talking about a mirror 17 wall, you're not talking about a title? 18 MR JAY: No. This presumably is in the public domain since 19 the person involved, Mr Stanford, who you name, was 20 fined for an offence under the Interception of 21 Communications Act? 22 A. Correct, so my source are the reports of that public 23 domain trial. 24 Q. Certainly, and there's not a public interest offence, as 25 it happens, to a breach of section 1 of that statute. 1 1 A. As I understand it, correct. 2 Q. Although you point out that there may have been a public 3 interest in the underlying story, don't you? 4 A. I can't remember, but maybe. 5 Q. Can we move on to the art or craft of binnology, which 6 you cover at on a page 279. There's some examples where 7 this might have been done in the public interest. For 8 example, page 281, you give the Jonathan Aitken example, 9 don't you? 10 A. Mm-hm. 11 Q. This information in relation to the activities of 12 Mr Pell, again, in general terms, where does it come 13 from? 14 A. The best single source is a book who was written by 15 a journalist whose first name was Mark and I'm 16 embarrassed to say I can't remember his second -- 17 LORD JUSTICE LEVESON: Watts? 18 A. Could be. I think that sounds right. 19 LORD JUSTICE LEVESON: I got it from your book. 20 A. Right, so a reliable source! Yes, so he wrote an entire 21 book about Benjamin Pell, which is hugely detailed. So 22 that would be one. Then there were news reports at the 23 time of his activities and there are also reporters in 24 the background talking about him. 25 MR JAY: You give us another example which you describe as 2 1 "little gems" at the bottom of page 281. 2 A. I can't see it. 3 Q. Memos between the then Prime Minister and the late 4 Philip Gould -- 5 A. Yes. 6 Q. -- published in the Sunday Times, the Times and the Sun. 7 So we have a series of examples which you provide in 8 "The Dark Arts". Then at 282 and following, you 9 consider the wider public interest issues? 10 A. Yes. 11 Q. And some of the exchanges between the then 12 Information Commissioner and the then chairman of the 13 PCC, all of which we're going to hear about in much more 14 detail, at least from one side of the horse's mouth, on 15 Thursday. So if you don't mind, I'll leave off those. 16 But I think we get a sufficient flavour of the sort of 17 material which you bring together to distill and to 18 buttress these writings; is that correct? 19 A. Yes. 20 Q. Thank you. I'm asked to put to you some questions, 21 Mr Davies, and to the extent to which I haven't already, 22 I will deal with them specifically. The first general 23 question, and I can put it quite generally: do you agree 24 that you did not put any of your criticisms, whether it 25 be of the Sunday Times, the Times or the 3 1 Associated Newspapers titles, to any of the individuals 2 concerned or to the papers concerned before you 3 published this book? 4 A. Emphatically not to the newspapers concerned. The 5 underlying thought -- if you look at the codes of 6 conduct -- there's a popular belief that they say you 7 always have to go to the subject of your story. None of 8 them say that. And it's -- I mean, I've been doing this 9 so long I now lecture young reporters in how to do this, 10 and what I say is it's crucial that you don't behave 11 like a robot. Story by story, case by case. You must 12 remember you're here to try to tell the truth about 13 important things. Will you be assisted or obstructed in 14 that basic simple task if you go to the other side and 15 tell them what you're working on and ask them for 16 a comment? 17 If you just look at it numerically, more often than 18 not, the answer will be: well, it's going to help you to 19 go to the other side. But there are a significant 20 number of occasions when the answer is no. Sometimes 21 that's for legal reasons, sometimes it's for ethical 22 reasons and sometimes for practical reasons. 23 In the case of these newspapers, it was practical. 24 I believed then and believe now that if I had tipped 25 them off about what I was doing, they would have gone 4 1 straight to the Guardian and applied all sorts of 2 pressure of various kinds to try to persuade the 3 Guardian to stop me doing that. And I didn't want the 4 Guardian put in the firing line. I'm a freelance, I'm 5 writing my own book, I didn't want them brought into it 6 and I also didn't want to be told to stop. I feel that 7 there was a real jeopardy to the success of the 8 operation, and so for that reason, I made the deliberate 9 choice not to go to them. 10 Sorry, did you want to say something? 11 LORD JUSTICE LEVESON: (shakes head) 12 A. The underlying thing is that if you go back to the 13 process I'm trying to follow -- the public domain 14 sources, the human sources, the early material -- what 15 you're trying to do is to get yourself to a point where 16 you can say, "Right, that's true, this statement is 17 true, that statement is true", and then to put it out 18 there, and if you've got to that point, and you can see 19 that going to the subject of the story puts you in 20 jeopardy, puts your ability to tell the truth in 21 jeopardy, then you wouldn't take that extra step, or 22 there might be ethical reasons for not going to the 23 other side, or there might be legal problems. 24 MR JAY: You've covered just the practical probables or 25 prudential problems. What sort of matters would fall 5 1 under the categories of ethical problems on the one hand 2 and legal problems on the other hand? 3 A. There are other practical problems that occur as well. 4 Ethical, I think the classic case is you're covering its 5 trial of a paedophile and he is accused of raping and 6 abducting and murdering children and you're preparing 7 the background story that's going to be published or 8 broadcast once the trial is over. Do you really want me 9 to go and ask this man what he says about his abduction 10 and rape and murder of children? And I think the answer 11 is you don't want me to do that. There's an ethical 12 problem there. Do you ask Hitler what he thinks about 13 concentration camps? 14 For example, the BBC code of conduct, which is 15 a particularly intensely thought-out, good one, uses 16 precisely that expression, "overriding ethical or legal 17 reasons". 18 So that's a relatively unusual block, but it's 19 there. If you follow me, anyway. I take that view. 20 Legal is two categories. One, which I would come 21 across from time to time, which is where I have obtained 22 information which could be deemed to be confidential. 23 There's a risk that if I let the other side know, I'm 24 going to get myself injuncted and I did a story -- 25 I might have referred to it in the statement, 6 1 actually -- where I spent months digging into the tax 2 affairs of a particularly wealthy man in order to 3 exemplify the way in which very wealthy people don't 4 have to pay tax because they hire clever lawyers and 5 accountants to find their way through the law or they 6 just break the law. 7 When it came time to legal that, to get it into the 8 paper, they had seven different lawyers working on it 9 because of the fear of what this man could do to us in 10 the court. On one side, there were defamation 11 specialists, who were saying, "You have to go to him and 12 put this stuff to him", and then there were very 13 experienced lawyers on the confidentiality side, one of 14 whom's now become a judge, saying, "Don't go near him. 15 If you go near him, this story will never see the light 16 of day." And in the end I had to go to him and have 17 very carefully choreographed conversations where I was 18 checking facts without him knowing quite what the story 19 was about. It was an uneasy compromise. 20 So confidentiality is one problem for us and the 21 other is privacy, which I personally don't come up 22 against so often, but insofar as the Human Rights Act 23 now has Article 8 and Article 10 there, it can be 24 problematic. There was an example where the Sunday 25 Mirror did a kiss-and-tell job on a well-known public 7 1 figure and they had bought up the woman's story. They'd 2 got her letters and photographs. There was no doubting 3 the truth, the accuracy of what she was saying about the 4 public figure, but at 4 o'clock on the Saturday 5 afternoon they went to the public figure and asked for a 6 quote. In my book, this is a reporter operating like a 7 robot who hasn't seen the danger and within an hour or 8 two, the Sunday Mirror was injuncted and eventually they 9 lifted the injunction. But by that time they had lost 10 several editions, hundreds of thousands of pounds worth 11 of income. 12 Now, I have my own reservations about doing those 13 kinds of stories, but what I'm trying to point to is the 14 danger of automatically going to the other side. So 15 legal, ethical, practical. 16 LORD JUSTICE LEVESON: Of course, everything turns on facts. 17 A. Yes. 18 LORD JUSTICE LEVESON: And you will doubtless have seen in 19 the press, if you didn't otherwise hear about it, of the 20 evidence that we had from Mr Mosley about the need to 21 check stories because once the cat is out of the bag, it 22 can never be put back in. 23 A. Yes, and I think you have a powerful point, even more on 24 privacy than accuracy. 25 LORD JUSTICE LEVESON: Oh, there's no question, no question. 8 1 Yes, but for him there's a twin question, isn't there, 2 because there was -- 3 A. The Nazi element of the story. 4 LORD JUSTICE LEVESON: Correct. But how does that play into 5 your analysis of the circumstances in which you go to 6 a particular target? 7 A. I think -- first, I don't think the Max Mosley story 8 should have been printed, but if I were the reporter 9 trying to get that story into the public domain, I would 10 understand that if I go near Max Mosley, he's going to 11 get an injunction on breach of privacy grounds and it's 12 an interesting contradiction, actually, because the 13 official story from the News of the World is: "Oh, well, 14 we've got Article 10 on side here. This is in the 15 public interest. This is our freedom of expression." 16 But the underlying fear would be that that's not going 17 to be the way the court sees it and that they are going 18 to injunct. So I don't approve of the story, but I can 19 understand why they didn't go near him. Have I answered 20 your question? 21 LORD JUSTICE LEVESON: Yes, you have, and I also understand 22 why they didn't go near him. 23 A. I think that's all they're saying. It's tricky -- you 24 see, on the confidentiality thing, which is something we 25 deal with more often, we did a long, complicated and 9 1 probably deeply tedious series a few years ago about 2 corporate tax avoidance. It was a very noble thing to 3 do. I don't know whether anybody read it. It went on 4 the for days. 5 Now, towards the end of that, we were contacted by 6 somebody who gave us internal paperwork from Barclays 7 Bank which described tax shelters which Barclays was 8 providing to corporate clients. We thought there were 9 two reasons why it was in the public interest to publish 10 this: (a) this is about the avoidance of tax, the 11 frustration of the Parliamentary will as to what tax 12 should be paid, (b) this was at a time where Barclays 13 was in negotiation -- ultimately fruitless ones, but 14 were in negotiation about taking taxpayers' money to 15 bail them out of the credit crisis, and therefore the 16 fact that they were it is selling tax shelters was 17 particularly in the public interest. 18 So we put those documents on our website with 19 a story, and that went up late one evening. Alan 20 Rusbridger will tell you the story in more detail but by 21 1 or 2 o'clock in the morning, there were powerful 22 lawyers onto us and onto a judge, arguing that these 23 were confidential and they got the injunction and that 24 was it. We had to remove the documents. We were not 25 able to publish that story. It comes back to this point 10 1 about the difficulty of making these judgments about 2 what's in the public interest. We felt very 3 aggrieved -- 4 LORD JUSTICE LEVESON: I hope you've not just broken the 5 terms of that injunction. 6 A. No, no, I haven't given you the detailed contents of the 7 paperwork. 8 LORD JUSTICE LEVESON: Your lawyer tells you you haven't. 9 A. Thank you. Just this once. No, but you see -- that 10 again, you see -- the lesson from that incident for 11 a reporter is the danger of a court interpreting the law 12 of confidence in such a way as it to frustrate what you 13 genuinely consider to be your legitimate function. 14 MR JAY: Thank you. 15 A. Can I just add, you know I said "practical"? Apart from 16 the kind of intimidation question, the big problem is 17 PR. If you go to the subject of a story and that 18 subject has professional PR advice, if you give them the 19 time to manoeuvre, they'll put the story out on their 20 own terms. So they'll change the angle, and so to 21 speak, scoop you, and -- Alastair Campbell, for example, 22 who I know he's giving evidence, was brilliant at doing 23 this if newspapers went to him too early. 24 So more often than not you will want to go to the 25 other side. You want to go to the other side in case 11 1 there's some killer fact you haven't thought of and you 2 want to go to the other side if you want to use the 3 Reynolds defence. So I can't quantify it, but more 4 often than not you will, but it has to be story by 5 story, a judgment taking those factors into 6 consideration. 7 Q. Thank you. A series of questions now from someone else, 8 Mr Davies. Between which dates did you carry out your 9 research for Flat Earth News, approximately? 10 A. Calendar years 2005/6 and fragmentary research in the 11 first three months of '07. I finished writing it at the 12 end of March '07. 13 Q. Would you agree to disclose your sources regarding 14 comments about the Daily Mail so that your allegations 15 can be properly investigated? 16 A. I can disclose those sources if the sources will agree 17 to be disclosed. 18 Q. But not otherwise? 19 A. Really not, and I think the Mail would feel the same way 20 about their own sources. 21 Q. I'm asked to point out, and so I will, that the Mail or 22 Associated Newspapers generally wishes it to be made 23 clear it strongly refutes the allegations that the 24 Daily Mail had a policy of bribing policemen and civil 25 servants in order to obtain stories as you allege. They 12 1 also wish to make it clear that they refute generally 2 the allegations you make against them in the book, which 3 are incapable of specific refutation because they lack 4 any meaningful detail. Do you follow that? 5 A. Mm. 6 Q. Do you understand also the difficulty they have, and to 7 the extent that we have, that without you giving us your 8 sources -- and we fully understand why you can't -- that 9 which substantiates your book cannot be tested 10 evidentially. Would you accept that? 11 A. That's true of some but not all. I mean, for example, 12 where you look at the Motorman material, we know as 13 a matter of public domain fact that the Mail came out 14 top of the league table which the ICO published 15 in December 2006. I was at the Select Committee hearing 16 in September 2009 where the new Commissioner, 17 Christopher Graham, said that the ICO had made it clear 18 to newspapers that if they wanted to examine that 19 material, they could, and he's then said in his evidence 20 that no newspaper has come to the ICO to ask whether 21 they can examine the material which we seized from Steve 22 Whittamore. It seems to me that if the Mail want to 23 discover whether there was law-breaking in that 24 material, that was something they could this done/is 25 something they can do. It may be that they have now -- 13 1 I can't obviously say -- but certainly at that stage, if 2 Christopher Graham is to be believed, that hadn't 3 happened and that route is open to them without having 4 to tangle with the confidential sources. 5 There's a second possibility where Z is concerned 6 about internal accounting. I just don't know what their 7 internal accounting systems are like, so -- the payments 8 that I was particularly being told about were cash, so 9 it may simply be that you draw the cash and it leaves no 10 specific footprint as to why it was being drawn, in 11 which case that isn't going to help us. But if there is 12 anything in the accounting system that actually shows 13 a payment going from the paper to Z, then that would 14 help the Mail to get to the bottom of the truth without 15 running up against the problem of off-the-record 16 sources. I mean, it's a pretty fine investigative 17 paper. I think they can get quite a long way without 18 me. 19 There's also the whole business of what 20 Scotland Yard has on that source. Again, it's in the 21 public domain that Scotland Yard mounted a surveillance 22 on him. I don't know what they came up with but it 23 would be interesting to ask. 24 So I do accept that there are real difficulties with 25 the Mail dealing with some of the things I've been 14 1 telling you, and it's frustrating, I accept that, but 2 I think there's an area where they could try and see 3 what they can find. 4 Q. In terms, generally, of the incidents of corruption 5 which you list, I think from your evidence already we 6 have some sense of the timescale. 7 A. Yes. 8 Q. We go back to the 1970s, Z is in the 1980s. The 9 information gathered, page 272 -- this is surrounding 10 The Wine Press in Fleet Street. You give the date for 11 that, probably in the early 1990s; is that right? 12 A. I'm saying mid, up to about 1996/1997 I'm talking about 13 there. 14 Q. Then page 279, which is the activities of Mr Benjamin 15 Pell. 16 A. It's not really corruption, is it? 17 Q. No? 18 A. Can I just interrupt you, before you go on, while we're 19 on corruption. My understanding of the position with Z 20 is that he goes right back to the early 80s, kind of 21 '82/'83, but comes a long way forward. My understanding 22 is he was still active when I was researching the book, 23 so that's a long span of activity of that kind. 24 On the police corruption side, there's the 25 investigator who you pointed me to at the top of 15 1 page 269, who we haven't actually named in this session. 2 That is materially about corrupting police officers. 3 There's a lot of detail which has emerged about that. 4 It involves three newspapers, not the Mail, but that's 5 the period, late 80s through to '99, where he goes to 6 prison, and then again, he's out and active from about 7 2005, although I don't know that there's evidence of 8 police corruption in that second period. But there's 9 that long initial period. 10 Q. I've already put the point to you about whether you put 11 your allegations to Associated Newspapers and you've 12 explained generally why you didn't. I think I've 13 covered that. 14 A. Mm-hm. 15 Q. I'm invited to ask you to comment your view, really, of 16 your fellow Guardian journalist Mr David Leigh. 17 A. Yeah. 18 Q. Apparently there are three instances that are given to 19 me. The first, he procured House of Commons notepaper, 20 using it in order to claim he was acting on behalf of 21 Jonathan Aitken MP and faxing it to the Ritz hotel in 22 Paris in order to obtain a copy of Mr Aitken's hotel 23 bill. First of all, as a matter of fact, are you aware 24 that Mr Leigh did that? 25 A. I think that's probably factually wrong. There was this 16 1 famous incident -- it's referred to as the "cod fax". 2 I think David was working at "World in Action" at that 3 time and wasn't part of it. There was a senior 4 executive at the Guardian who I believe was responsible 5 for the cod fax and if you want to get to the issue 6 rather than the individual -- I think you're wrong in 7 putting David in the story, but is it the issue you're 8 interesting in? Was that a bad thing to do? 9 Q. I think there are two layers to this. There's a factual 10 layer, which you've addressed, but then there's a more 11 general one, a conceptual one, I suppose, that even if 12 it's true, which you say it isn't, would you approve of 13 it? 14 A. I don't want to dodge the question. I think it's not 15 true of David, but I think it is true of the Guardian. 16 The Guardian did what you describe but I'm pretty sure 17 David Leigh wasn't working for the paper at the time. 18 Q. Fair enough. 19 A. This is blagging, really, isn't it? 20 Q. Yes. 21 A. Section 55 of the Data Protection Act. Do you have 22 public interest on your side when you do this? In this 23 murky area, I think top of everybody's league table of 24 what is in the public interest is the exposure of 25 serious crime, and at the end of this long saga 17 1 involving Jonathan Aitken, the Guardian eventually 2 published this story which disclosed that as our 3 Minister of Defence dealing with establishing arms 4 deals, he was lining himself up to receive enormous 5 bribes, and when the Guardian eventually got that into 6 the public domain -- I'm not libelling anybody here; 7 this is all already written -- they said that if there 8 had been a more serious example of political corruption 9 since 1945, they would like to be told what it was. 10 So I would say you are top of the scale public 11 interest on that piece of blagging. 12 Q. That's page 281 of your book. 13 A. Oh, is it? 14 Q. "If there's a more serious act of corruption in post-war 15 British politics, we would be interested to know of it." 16 A. Not a bad memory. 17 Q. The second example that's put to me I think it's better 18 if I just ask it directly of Mr Leigh when he comes next 19 week? 20 A. Okay. 21 Q. The third one, that he apparently accepted information 22 from Benjamin Pell that Pell had acquired from other 23 people's dustbins. Is that something you know about? 24 A. I wrote about it a bit in the book. He was very -- 25 LORD JUSTICE LEVESON: Page 281. 18 1 A. Yes. He was very clever about it. David's a fantastic 2 reporter and the good reporters -- the Martha Gellhorns, 3 the James Camerons, the David Leighs -- have a kind of 4 artful dodger about them, and he could see the exciting 5 potential of this extraordinary man who was digging 6 material out of significant people's dustbins, but he 7 could also see that the Guardian were never going to pay 8 for it. Out of a mixture, I think I said in the book, 9 of poverty and principle, it wasn't going to happen. So 10 he very cleverly passed Benjamin on to somebody else who 11 could deal with him and this somebody else was a friend 12 who was highly likely to tell him if anything 13 interesting emerged from the bin. 14 So I think he got himself very close to the line and 15 just stayed on the right side of it. I thought it was 16 clever of him. This is exactly the sort of thing I'm 17 talking about. Is that in the public interest or not? 18 Who knows where the line is? Really, really tricky 19 judgments that many could up. He took a call on it. 20 Q. Could we look, please, to the future and press 21 regulation generally. 22 A. Mm-hm. 23 Q. The matter which was, as it were, parked before lunch 24 but which we promised or threatened that we would come 25 back to. 19 1 Could you give us some thought to that now and tell 2 us your views? 3 A. First of all, it's really difficult. I think that as 4 two starting thoughts -- we said the first one, that we 5 have to consider the needs of media victims as well as 6 media organisations. 7 The second one is that just as an intellectual 8 exercise, I wouldn't start with what we've got. We've 9 got this horrible concoction of common law and statute 10 and regulation and it's a mess. I think that it's 11 helpful to start with a blank sheet of paper and you 12 could conceptually draw a line down the middle of that 13 piece of paper and say really there are two different 14 kinds of problem. The most important problem is 15 falsehood and distortion, within which there is 16 defamatory falsehood and distortion, and on the other 17 side of this line you put unethical behaviour, within 18 which the worst is probably the invasion of privacy. 19 So if you take the first of those, if you start with 20 a blank sheet of paper and say, "What should we do about 21 falsehood, distortion and defamation?" I don't think 22 you'd come up with anything like the law we have. You 23 wouldn't invent, for example, the concept that damages 24 should be paid to somebody whose reputation has been 25 hurt by a publication. Surely you would say, "If that 20 1 happens, if I publish something which falsely damages 2 somebody's reputation, what they deserve is a correction 3 of equal prominence. Not the PCC's weasel words, 'due 4 prominence'; equal prominence to what I published." 5 That's a complete balance, and I think the same 6 applies generally to falsehood and distortion. This is 7 the thing that most upsets people about what we do, and 8 so having crossed this line and abandoned the idea of 9 self-regulation, I want somebody to pass a law that 10 says: if you publish, in newspapers, magazines, books, 11 wherever, and you make a statement which is demonstrably 12 false, you have to correct it with equal prominence. 13 First of all, this is good for the freedom of the 14 press. The worst burden, I think it's fair to say, we 15 suffer under is libel law. It constantly prevents us 16 telling the truth about important things. It has 17 a terrible, chilling effect, and I bet you every editor 18 in Fleet Street, from Rusbridger to Dacre, would be 19 happy to see the back of defamation law. There's a few 20 learned friends here who might not be happy but it would 21 be an enormous advantage to the freedom of the press. 22 And yet we can satisfy the needs of victims, but I would 23 do that not through the courts but through some sort of 24 simple -- 25 LORD JUSTICE LEVESON: I'm not sure that's not a bit 21 1 simplistic because those who have been defamed obviously 2 want to get the defamation corrected, but in the 3 meantime they've been put through the grinder for the 4 time it takes to get it corrected. 5 A. Yes, but -- 6 LORD JUSTICE LEVESON: They are entitled to some redress for 7 that, and in our system, the only redress we have is the 8 commodity called money. 9 A. But I wouldn't push this through the courts. I want an 10 arbitration system that's quick. I would put statutory 11 deadlines on it. If a newspaper publishes a statement 12 of fact, they should already know whether or not it's 13 true and be in a position to justify it pretty quickly. 14 I would say if someone makes a complaint about a 15 statement I have made -- you might think this is bonkers 16 but within four weeks we ought to have a hearing. And 17 that hearing shouldn't be in court; it should be in some 18 sort of arbitration system. That system would make 19 a finding of fact and it could be appealed to the courts 20 only on point of law. 21 You have a system rather like this in maritime law, 22 where they have specialist lawyers who act as 23 arbitrators. I've been researching it a little bit and 24 it works. You see as a starting point -- if you start 25 with a blank sheet of paper and just think it logically 22 1 through, you don't run into the contradiction between 2 the freedom of press and the need for regulation. You 3 can actually make something happen which increases the 4 freedom of the press and gives media victims a quick, 5 effective reply. 6 I know it's simple what I'm saying and it's 7 a complicated argument. I'm trying to provide 8 a starting point. 9 LORD JUSTICE LEVESON: No, no, I'm very grateful. Indeed, 10 the idea of having some sort of arbitral system you may 11 have heard that I've suggested to a number of people 12 over the course of the last two weeks. 13 A. Mm-hm. 14 LORD JUSTICE LEVESON: But whether one removes the law of 15 libel entirely is perhaps something rather different, 16 and it would be a rather odd consequence, wouldn't it, 17 of all the problems that have caused this Inquiry to say 18 we should have even a greater licence for the press to 19 print whatever they want? 20 A. No, because -- you take the McCann case, the horrific 21 falsehoods being published about those people. They 22 don't have to sue and go through that long, drawn-out 23 process, expensive, exhausting process. They trigger 24 the complaint. Within four weeks, they get an 25 arbitration decision. Surely the newspapers are not in 23 1 a position to justify the factual statements that were 2 made about them. All those newspapers who have made 3 them have to publish corrections with equal prominence. 4 The Daily Express has to put it on their front page, 5 where the allegation was. They get justice, fairness, 6 truth, much, much quicker. They don't get damages. 7 I don't think they wanted damages. 8 And on the other side is my -- all the business of 9 ethical behaviour, in particular breach of privacy at 10 the core. Over and over again, you come back to that 11 business: "It's all right if it's in the public 12 interesting." 13 LORD JUSTICE LEVESON: So you want the arbitral system also 14 to provide you -- 15 A. No, they're what I'm after -- 16 LORD JUSTICE LEVESON: I'm very content with a system that 17 is professionally based that takes work away from the 18 court. I'm not in the business of trying to get more 19 work into court. 20 A. What I'm after there with the public interest is 21 a beginning, some sort of advisory set up. It might be 22 part-time specialists with whom I can communicate. 23 I send them an email and say, "Here's the situation. 24 Here's what I'm planning to do. Will you, in 25 confidence, give me a guide? Am I or am I not operating 24 1 with public interest on my side?" And then I have that 2 and I then proceed, and if there is then a civil dispute 3 or a criminal prosecution, that's disclosable. Up until 4 that point, it's secret. Yes? And if it turns out that 5 I've ignored that advice, that's going to weigh heavily 6 against me. 7 LORD JUSTICE LEVESON: Or not taken it. 8 A. Yes, or not even asked for it in the first place. 9 That's a bit like refusing to do a Breathalyser. The 10 presumption is that you've got something to hide. 11 You see, I think Max Mosley has a point about it 12 being too late to deal with the privacy problem after 13 the story's published, after those horrific videos 14 flashed around the world of his naked body. But his 15 proposed remedy is too severe. It involves prior 16 restraint, and all of us are allergic to that. So I'm 17 trying to set up a system where the signal would be sent 18 to us very clearly before publication that if Max sues, 19 we're going to lose, so we know -- and furthermore when 20 that's disclosed, it's going to make us look 21 particularly bad. 22 But there's another case -- I think it's all right 23 to say that this -- which is the Blunkett case. The 24 tabloids went after David Blunkett and said, "You're 25 having an affair." That, to me, was prurient and 25 1 unjustified intrusion into that man's private life. 2 However, as they dug deeper into his private life, they 3 found a bit of public interest. They said, "Ah, this 4 woman's nanny has had her Visa application fast-tracked 5 by Blunkett", and he had to resign. That's the counter 6 case against Max's argument, that if you'd gone to 7 Blunkett before publication, he would and should have 8 got the injunction on the basis of what we know. If you 9 give us the freedom to continue making the decision, 10 then you leave it open to us to say, "Even though 11 they've warned us against this, we've going to publish 12 because we think we can get to the bottom of the pile." 13 So I don't think it's such a bad idea. 14 LORD JUSTICE LEVESON: No, I'm not -- 15 A. I don't know any other journalist who agrees with me, 16 I'll confess. 17 LORD JUSTICE LEVESON: That's an interesting fact too. 18 A. We're very old-fashioned people. 19 MR JAY: In the example of Mr Blunkett that you gave, the 20 chance ascertainment of a public interest nugget, as it 21 were, was a wholly adventitious by-product of a story 22 whose initial basis, you say, was without a public 23 interest justification; is that correct? 24 A. Yes, but there's something to be said for that maxim 25 about publish and be damned. If there's a really 26 1 difficult question underlying this, who should decide 2 what we should publish? Should it be the court or 3 politicians or journalists? And kind of at the end of 4 the day, I think there is something in publish and be 5 damned. Let those journalists make their judgement. 6 MR JAY: We can hear you very well but you're going too 7 fast. The good news is -- 8 A. I'm nearly finished. I'm not sure quite sure what's 9 happening now. Are we finished? 10 Q. I think you should complete the answer you were giving 11 to your satisfaction and then maybe we will have 12 finished? 13 A. About publish and being damned. So if the Blunkett 14 story at first sight looks like a breach of his privacy, 15 we should nevertheless have the freedom to carry on and 16 make the mistake and take the risk and then if we can 17 find the public interest gem beneath the pile, then we 18 can justify it. I think it gets very difficult if you 19 get into the area of prior restraint. I really do. 20 I think that that's not -- that shouldn't be part of the 21 solution. 22 LORD JUSTICE LEVESON: Of course, one of the problems about 23 getting advice requires you to make a value judgment 24 about the facts. I'm not commenting one way or the 25 other, but if you go back to the example concerning 27 1 Mr Mosley, the News of the World argued that the facts 2 were A, and Mr Mosley was saying most emphatically it 3 was not A. 4 A. Okay. I think my system can cope with that because 5 if -- this is the Nazi theme? 6 LORD JUSTICE LEVESON: Yes. 7 A. That's all right to say that? That's all public 8 knowledge? 9 LORD JUSTICE LEVESON: It's comparatively public knowledge. 10 A. So if, when I send my email in confidence to the privacy 11 advisory folk, I say, "In this video which we secretly 12 shot, he is acting out some sort of Nazi fantasy", and 13 on that basis they say, "Okay, you've probably got some 14 public interest", if then subsequently it's shown that 15 we never even translated what was on it and we are 16 wrong -- let's just say we were wrong in simple terms 17 about that fact. That's going to weigh very heavily 18 against us because that email is going to be produced. 19 So if we've given the advisory group false facts, we're 20 in trouble. So there is an incentive to be honest with 21 the advisory people. 22 LORD JUSTICE LEVESON: I understand. 23 MR JAY: Mr Davies, thank you very much for assisting the 24 Inquiry. 25 LORD JUSTICE LEVESON: Thank you very much. Before you go, 28 1 is there anything that you feel you've not had the 2 opportunity to say on a topic which you've obviously 3 thought about very deeply? 4 A. No, I think -- 5 LORD JUSTICE LEVESON: Thank you very much indeed. 6 A. Thank you. 7 MR JAY: Mr Barr is taking the next witness. 8 LORD JUSTICE LEVESON: Thank you, Mr Jay. Just give 9 everybody a moment to move around, Mr Barr. 10 Right. 11 MR BARR: Good afternoon, sir. The next witness is 12 Mr Paul McMullan.