Afternoon Hearing on 30 November 2011

Mark Lewis and Alexander Owens gave statements at this hearing

Hearing Transcript

(2.00 pm) MR JAY Sir, we are in a position to hear from Mr Lewis this afternoon, but after Mr Owens. Mr Thomas we're now hearing on Friday of next week, that's 9 December, the whole day. LORD JUSTICE LEVESON Yes. Does that cause any insuperable concern to anybody who would otherwise be here? I'm not saying that will provide a trump, but I'm asking the question. (Pause) Thank you. Oh, yes? Discussion re procedure MR CAPLAN It's not about next Friday, but there was another matter you wanted me to deal with LORD JUSTICE LEVESON That's fine. MR CAPLAN before we rose and again this morning you asked me to consider with my clients the issue of the article that was published in the Daily Mail concerning Mr Grant. LORD JUSTICE LEVESON Yes. MR CAPLAN I've had an opportunity to consider that over the interval and can I just then please explain the position and what it is that I am proposing? Before I do that, can I just remind you of the context in which the article which Mr Sherborne and Mr Grant complain about was published, and the context was Mr Grant's evidence to you, sir, in which he made, as we know, allegations that Associated Newspapers had been involved in phone hacking LORD JUSTICE LEVESON Yes, it's Day which? MR CAPLAN It is 21 November. MR SHERBORNE It's Monday afternoon, sir. LORD JUSTICE LEVESON Yes, I know, but SPEAKER: Day 4. LORD JUSTICE LEVESON Thank you very much. MR CAPLAN Those were not allegations which he certainly had made to Associated Newspapers previously, and so they came to be made in a very public setting on the first day of evidence to your Inquiry. LORD JUSTICE LEVESON Yes MR CAPLAN There were two broad strands to those allegations. Firstly, that Mr Grant said they were supported by evidence which was to be found in a conversation he had covertly recorded with Mr McMullan, and the second strand was an inference which he drew as to the means by which an article was published by my clients concerning the period when he was with Jemima Khan LORD JUSTICE LEVESON Yes. MR CAPLAN and the relationship with a "plummy-voiced woman". The second was an inference. As to the first, the McMullan conversation, that is not something, of course, that Mr Grant had checked with Mr McMullan and we've had Mr McMullan's evidence that he had been misinterpreted by Mr Grant if LORD JUSTICE LEVESON Yes all right. MR CAPLAN It is important that I put the context, if I may. LORD JUSTICE LEVESON All right. MR CAPLAN As to the second, the question of the means by which the story came to be written concerning Jemima Khan and the lady in question, sir, that, as I said at the time, is a matter which will be the subject of evidence which we will produce to the Inquiry. LORD JUSTICE LEVESON Yes. MR CAPLAN But we categorically deny that on either basis there is any evidence that Associated Newspapers has ever hacked phones. LORD JUSTICE LEVESON That's a matter for discussion and potential evidence. MR CAPLAN It is. LORD JUSTICE LEVESON But the criticism that Mr Sherborne was making and the concern that I expressed was the one sentence in the report. If one reads precisely what he said, he was asked: "Are you suggesting that this story must have come from phone hacking?" And then he tells the story and then says: "Thinking about how they could possibly come up with such a bizarre leftfield story, I realised et cetera. Then it was put to him: "You haven't alleged that before, have you, in the public domain? "Answer: No. But when I was preparing this statement and going through all my old trials and tribulations with the press I looked at that one again and thought 'That's weird', and then the penny dropped." Mr Jay said: "I think the highest it can be put is frankly it's a piece of speculation on your part, isn't it, in relation to this? "Answer: Yes, you could, yes, speculation, okay, but I'd love to know, I mean, I think Mr Caplan who represents Associated was saying earlier today he would like to put in a supplementary statement and, you know, referring to the things I say today. Well I'd love to hear what the Daily Mail's and Sunday Mail's explanation of that article is, what the source was, if it wasn't phone hacking." And then he says: "I'll leave that for now." And it's abundantly clear what Mr Grant was doing. He was preparing for this hearing, he decided that the facts led to an inference, you challenged the inference and that's perfectly permissible, and if it's necessary that's something I can think about, but more significantly, the article of which he complains is that the allegations are "mendacious smears" driven by his hatred of the media. And the word that Mr Sherborne focused on and the word that I took issue with at the time was the word "mendacious". You may say Mr Grant doesn't like the media, I don't suppose he would disagree with that for one moment in this context, perhaps he would, perhaps he wouldn't, I don't know, I'm not going to put words into his mouth. That's not appropriate. But the clear allegation is this was deliberately dishonest. Now, either you want to support that, or you don't. MR CAPLAN Might I just refer to another passage in the evidence? I think the reference is page 27, line 21. Mr Jay said: "But there is no evidence that you have to your personal knowledge that the Mail was involved in this at all, is there?" And he says: "I'm asking you to be very careful when you answer the question. Don't share a speculation with us, don't share an opinion. We're looking for evidence. There isn't any evidence, is there? "Answer: The evidence for the Daily Mail being involved in phone hacking for me would be the article we spoke about earlier, the plummy-voiced woman, and it would be Paul McMullan's answer to this question." LORD JUSTICE LEVESON Paul McMullan's answer has been explained, but in any event whether you could draw that inference from what was recorded on the tape is another question, and the other evidence is the inference which judges frequently draw from circumstantial evidence. I'm not saying it's right, I'm not saying it's wrong. What I am saying is that it seems to me, and I wasn't sure that you or your clients disagreed at the time that it was appropriate to characterise that allegation as "mendacious". MR CAPLAN Can I come to the point, I hope, of my submissions to you? LORD JUSTICE LEVESON Yes. MR CAPLAN Can I say straight away, there never was any intention to interfere with this Inquiry and there never was any intention to intimidate a witness. There was every intention to respond to a serious allegation of criminality, which received very widespread publicity. Sir, I understand in effect the phrase which you have focused on, and can I suggest this. What we are suggesting is that we will be calling evidence in relation to the second strand of the evidence, and I use that in inverted commas, which Mr Grant referred to. In order solely to assist the smooth running of your Inquiry, may I stress that, to assist the smooth running of your Inquiry, we are prepared for the moment, and may I stress those words, to remove the phrase "mendacious smears" from the online copy of the Daily Mail. That will be done pending the evidence being called before you. Sir, I do say with respect that what you are asking us to do is to remove copy from a newspaper in circumstances where, really, we are not a court dealing with whether this is comment or opinion, we're not dealing with defamation proceedings. We are dealing with an Inquiry. I fully understand the importance of ensuring that those that are called before it are not intimidated, that those that are called before it do not feel that their evidence is going to be met with vilifying comments thereafter, but, sir, in our respectful submission there is a context to this. It's far better that the evidence is called and, as I say, to assist you we will remove that for the moment from the database. LORD JUSTICE LEVESON I understand. As to the argument between Mr Grant and Associated Newspapers as to what they wrote about him, there are ample mechanisms available to Mr Grant to deal with that in such way as he believes are appropriate and for you to respond. I'm not doing that. I am concerned about the very feature that you've mentioned. Now, to some extent we've moved beyond it and I took comfort from the way you responded to my proposition to you, and I didn't press you because of the very reasons you've identified, and I'm sure you understand. But it was the suggestion that that sort of response might impact on others who were coming to give evidence. That's my concern. I'm not seeking to debate the merits of this conversation, neither am I seeking to decide what is an appropriate inference or isn't an appropriate inference, although I made it abundantly clear what I did not think, based on that material, was appropriate so that I could lend some force to the concern that this might be thought of as intimidatory. You made it clear that it wasn't intended to be, and, as I say, I believed that the word had come out. I was clearly wrong in that regard. Had I not believed it, I would have had this conversation with you last week. MR CAPLAN Sir, thank you very much. LORD JUSTICE LEVESON Right. Mr Sherborne? MR SHERBORNE Sir, as you can imagine, for Mr Grant I'm not sure I missed I don't think there was an apology buried deep in Mr Caplan's plea in mitigation, but if you want an example of the culture, practices and ethics, you have it. LORD JUSTICE LEVESON I'm there, Mr Sherborne. MR SHERBORNE Can I say this, and you'll appreciate why I say this because Mr Grant would like his right of reply to that. He won't exercise the right of attack, which is what Associated did, but the distinction, which I would emphasise again, between Mr Grant's evidence being mistaken or wrong, which is no doubt what Associated suggest, and I can leave that to be dealt with when the evidence is called, and what he was accused of is one which you will find in any dictionary, and I would recommend that Associated Newspapers' editor or its legal department consult one rather more quickly than they have come back with their explanation. LORD JUSTICE LEVESON All right. MR SHERBORNE It's very important for me to say that as regards Mr McMullan, as you said yourself, the transcript of what he said to Mr Grant when he didn't realise that he might be quoted later, as opposed to giving his evidence here, is very clear for all to read and I can make submissions in due course about it. LORD JUSTICE LEVESON Yes. I don't want this debate to become totemic. Do you understand what I mean? MR SHERBORNE I do understand. LORD JUSTICE LEVESON I understand that you will argue that it's illustrative and Mr Caplan will have understood that at a very early moment, which is why he dealt with it as he dealt with it on the last occasion. But it's all material which we will consider in due course without my making a finding of fact one way or the other, because I can't start going into that sort of territory. MR SHERBORNE Sir, I understand that, but you will recall that it wasn't just me who rose on Tuesday morning to deal with this. Mr Garnham did as well. LORD JUSTICE LEVESON No, I understand. MR SHERBORNE It carries implications well beyond Mr Grant, as you'll appreciate. LORD JUSTICE LEVESON I understand. And I am conscious that those who followed Mr Grant had the strength of mind and character to carry on, whatever impact that evidence all has. I'm not judging the issue. MR SHERBORNE I understand that, sir. LORD JUSTICE LEVESON Right. Thank you very much indeed. MR JAY Sir, the next witness is Mr Alexander Owens. LORD JUSTICE LEVESON Thank you. MR ALEXANDER OWENS (sworn) Questions from MR JAY MR JAY Mr Owens, I'm going to invite you to sit down and make yourself comfortable and also I'm going to hand three files which contain relevant material, including, I hope, your two witness statements. Your full name, please?
A. Alexander John Owens. LORD JUSTICE LEVESON Mr Owens, thank you for coming forward. I think you came forward to us on the basis that you had some valuable information and I'm grateful to you.
A. I would hope so, sir. MR JAY First of all, Mr Owens, if I could identify your two witness statements. In the first of the three files under, I hope, tab 1, there's a statement which runs to 20 pages signed by you on 17 November; is that correct?
A. That's correct.
Q. And you've signed the statement of truth?
A. I have, yes.
Q. This is your main evidence, but there's also a short supplementary statement where you expand upon and deal with certain recent events, signed and dated by you on 22 November?
A. That's correct, sir.
Q. You tell us between the years 1999 and 2005 you were the senior investigating officer with the Information Commissioner's office based in Winslow; is that right?
A. Yes.
Q. Can I ask you, please, about your previous career. It was in the police, wasn't it?
A. Yes. I basically left school and joined the police cadets when I was 17. As 19, I became a constable and basically stayed there until I'd finished my 30 years in and out of various police departments. So I actually retired in October 1995.
Q. Thank you. And then you you haven't said your rank. You retired
A. Sorry, I retired in the rank of detective inspector.
Q. Thank you very much indeed. Following your retirement, the ICO, as we're calling it, didn't exist then. There was some other entity in being, I think, called the Data Protection Registrar's Office?
A. Yes.
Q. You joined them in 1997?
A. As an investigator on a two-year fixed contract.
Q. The legislation was underfoot, it eventually became law in 2000 in the form of the Data Protection Act 1998?
A. There was legislation in place. The 1984 Act. And yes, I basically joined because the new Act was coming in.
Q. Thank you. The time when you joined or you joined in September 1999. You became senior investigating officer in December 1999. The department consisted of seven or eight regional investigating officers around the whole of the United Kingdom?
A. That's correct.
Q. Two full-time investigators based at Winslow. One of them was you, of course, the other was Ms Jean Lockett, who was head of
A. No, there were two other investigators and myself as the ICO, so there were actually two investigators plus myself plus Jean Lockett.
Q. Was your direct line manager Mr Francis Aldhouse?
A. He was, yes.
Q. Who was the deputy commissioner and above him of course the commissioner?
A. Correct.
Q. Can we launch then straight into the circumstances surrounding Operation Motorman?
A. Certainly.
Q. This is paragraph 3.1 of your statement. You were contacted in September or October 2002 by Devon and Cornwall Police who were conducting an investigation which they had labelled Operation Re-proof; is that correct?
A. That's correct.
Q. What in essence were they investigating, Mr Owens?
A. They were doing an Internet investigation into possible leaks from the police national computer to a private detective agency by both serving police officers and retired police officers.
Q. Yes. Mr Owens, you're facing competition from a helicopter outside and also the microphone there doesn't really amplify your voice, so please keep it up.
A. Certainly.
Q. Thank you very much. You mentioned a private detective agency. That is Data Research Limited, who were based in south London?
A. That's correct. I don't know the exact area, I can't remember it now, but it was down south London.
Q. So the upshot was that the Devon and Cornwall Police wanted to execute a search warrant in pursuit of their investigation but it was agreed that your office would come and assist in case there were matters which fell outwith the remit of Operation Re-proof?
A. That's right.
Q. Can we cover with more precision, rather than me just lead this evidence, the events of 11 and 12 November 2002. Did you accompany officers of Devon and Cornwall Police to execute a warrant which they had obtained?
A. Yes, I did, together with the regional officer for that area, Steve Gazzard.
Q. Thank you. The raid was an address in south London; is that correct?
A. I can't remember the exact address, but yes, I think it was down there somewhere. LORD JUSTICE LEVESON All this is preliminary to the relevant search, isn't it? MR JAY Yes. LORD JUSTICE LEVESON So I think we can probably take it comparatively briefly. MR JAY Thank you. Did you find any documents during the course of the search?
A. Yes. I was obviously walking around and having a look while we weren't actually seizing documents and on one desk I saw a couple of bundles of documents which obviously related to vehicle registration marks, car numbers. And as I glanced down at them, I could see that there was an awful lot of vehicles with the personal owners' details on the same documents. And I asked one of the police officers if he'd seize it for me.
Q. Yes. Those documents were given a particular exhibit number, but then did you telephone DVLA at Swansea to make further enquiries?
A. Yes, I was still in the premises when I rang DVLA Swansea and basically gave them the first 10 or 12 on the list and asked them if they could was there any common denominator, could they check them?
Q. And the upshot was that there was a common denominator, one particular DVLA employee who had conducted the searches?
A. Well it all came down to one DVLA employee, but also the times and dates on the documents corresponded exactly with the times and dates on the DVLA records that they were checked.
Q. Yes.
A. So it was obviously that data research, either directly or indirectly, had a corrupt source within DVLA. LORD JUSTICE LEVESON And that for you is critical because this is data protection. This is exactly what you're in the business to look for?
A. Correct, sir, yes. MR JAY That person was immediately suspended by DVLA.
A. Yes.
Q. And in paragraph 3.5 of your statement, if we could take the story slightly further forward, the exhibit bundle you've mentioned, PS28, identified the fact that several hundred VRMs had been checked by Data Research Limited and the results subsequently sold on to about 10 companies and individuals?
A. Yes, that would be right. Yes.
Q. So Operation Motorman started on the back of
A. On the back of those documents and Operation Motorman essentially was to identify any corrupt sources in the DVLA and identify the customers that were on that the list and what they wanted the details for. That was the basis of Operation Motorman.
Q. Thank you. If I can take this quite briefly, a second source was in fact identified but he was deceased by then?
A. Yes, it was when we went to DVLA, we found out there was a second source, but he'd died some nine months earlier.
Q. Can you help us with the protected number you refer to in paragraph 3.8?
A. Yes.
Q. What's the significance of that?
A. I received a telephone call from a Mr Wilf Morgan, who was a very senior member of the DVLA, asking if we could liaise and sort of work between us, and I was down there, we were talking, and his phone rang and it turned out that there was a young lady from I can't remember which office, but it was the same office as the deceased, who said that she shared a desk diary with Mr Morgan and she'd noticed this long list of vehicle registration marks in that diary LORD JUSTICE LEVESON I think you don't mean Mr Morgan, you mean the deceased.
A. Yes, sorry, the deceased. There was a long list of numbers in there so we went over I think it was Wimbledon or that area we went over to their office in Wimbledon and took possession of the diary from the lady. MR JAY Yes. And that eventually led you, or maybe quite quickly, led you to a particular investigator, Steve Whittamore; is that right?
A. Well, it was noticing the protected number that actually led us there. I was we were obviously going through it, they were obviously relevant to our Operation Motorman, when we noticed one of the vehicles had or one of the vehicle marks written down in the diary had very clearly next to it, "Protected number". As an ex-Special Branch officer, I know exactly what that means, so it started gave me concerns.
Q. Yes.
A. And we subsequently identified that that was in fact an undercover car being used by the Metropolitan Police. The Metropolitan Police confirmed it. Once they told us that, we didn't ask any more details.
Q. What you did do is look further into Mr Whittamore and ascertained that he ran a private detective business from an address, his home address in Hampshire?
A. That's correct. LORD JUSTICE LEVESON And you went to him because he was the person who asked for the information about the protected number?
A. On the list going back to PS28, which is the 700 list, we were able to identify from that the name Whittamore and then it moved on. MR JAY There's another raid, this time Mr Whittamore's home address in Hampshire.
A. Yes.
Q. Takes place on 8 March 2003?
A. Yes.
Q. This time it's under the aegis of the ICO, not a police raid?
A. No, a search warrant issued under the Data Protection Act.
Q. It may be there were some police officers there to help?
A. No. The only time we used police officers is basically as a matter of courtesy we let them know we're on their area and we might ask for a uniformed officer to be there when we enter, so to prevent a breach of the peace, but we don't actually use police officers on the actual searches and that.
Q. Mr Thomas subsequently described the documentation you seized as a Pandora's box.
A. Yes.
Q. Which may well be an accurate description. But in terms of what it was, the underlying information which was being sought and obtained, as you say in paragraph 4.2, ranged from CRO checks, which of course are criminal record checks, vehicle registration mark checks, ex-directory telephone numbers, mobile phone numbers, telephone number conversions what do you mean by that, Mr Owens?
A. A number conversion is basically, "Here's the number, get me the name and address", or, "Here's the name and address, get me the number".
Q. And family and friends' lists. Mr Whittamore made it clear to you, did he, that he would co-operate as regards his own wrongdoing, as it were, but wouldn't incriminate any member of the press?
A. Yes. He didn't say anything then formally, but he indicated that he wouldn't deny his wrongdoing, but please don't ask him about the press because he's not going to say anything about them.
Q. Can I ask you, please, about the notebooks you seized. This is on the sixth page of your statement.
A. Yes. There were four I think it's A4 size hardback notebooks and they are quite distinctive because they are all different colours, they are blue, red, green and yellow, and they contained somewhere in the region of 17,500 entries, if you can imagine an entry each line, and along with that an awful lot of paperwork. But the actual notebooks represented all the work he had done identifying which reporter, from which newspaper. So and we'd have a reporter we'd have the newspaper, the name of the reporter, the request being made might be, "Can you check this car number out for me?" All the way down.
Q. Thank you. In relation to a telephone number, what was the nature of the request? "Please find the telephone number for X?", was it?
A. It was just basically we'd have a name and address and he'd have ex-directory, so we'd be searching for an ex-directory number, or name and address and mobile, depending on what the enquiry was.
Q. Was there also a column which described the amount that Mr Whittamore was going to receive for a particular job? Or was that in other documentation?
A. No, it was in the same no, it was in the same document. It was the very last entry where he'd have the amounts that he'd charged for each entry. I'm trying to think. Yes, I'm almost certain of that.
Q. The next stage is that you returned to the office in Winslow a few days later, we're probably in about mid-March 2003, to update the head of investigations on progress, but you also, as you tell us, had a meeting with the Commissioner, who was Mr Richard Thomas, and his deputy, who you've already told us is Mr Francis Aldhouse.
A. Basically to update them and show them what we'd recovered.
Q. Did you show anybody the documentation you just described?
A. I'd taken I'd spent a few days before we went up to the office looking giving a cursory look through the documentation and I'd managed to sort of match receipts from newspapers to invoices he'd sent to the people in the books. So what we had was a line of a paper chain from the newspaper sending the invoice out to the to Whittamore, in return we had him from his papers sending the "I need paying for this". So all of them relating to the one victim. And of course the books were in the middle of this because we could match them with the papers, and it went we could identify the newspaper, the journalist, Whittamore, who he used, the little tracers, as I'd call them, the blaggers, the corrupt people, and we had a paper chain right the way up and down on
Q. Yes?
A. well, eventually quite a lot, but that was the sort of documentation I showed.
Q. Can I just check two issues. The invoice of course is going from Mr Whittamore back to the newspaper.
A. Yes.
Q. Did you see an invoice which matched some of the entries in the notebooks?
A. Yes.
Q. The next question: Did you see any remittance advice or similar document
A. Yes.
Q. back from the newspaper which is evidence of payment?
A. Yes.
Q. The last point. You mentioned the blaggers. These are the individuals working, as it were, beneath Mr Whittamore on his instructions. Did the notebook contain information as to who the blagger was in any particular case?
A. Yes.
Q. Thank you. You demonstrated all of this to Mr Thomas and Mr Aldhouse. Of course by then you hadn't conducted an exhaustive analysis, this was presumably just to illustrate
A. Correct.
Q. the sort of audit trail that you could demonstrate subsequently, if so required. What was the reaction, if any, from Mr Aldhouse to Mr Thomas in response to these revelations?
A. Well, it was at the end, I basically said what we have here, if we haven't got any public defence we can go for everybody, from the blagger right up to the newspaper, at which point there was a look of horror on Mr Aldhouse's face and he said, "We can't take them on, they're too big for us", and Mr Thomas just sort of bemused, deep in thought, just said, "Fine, thanks very much, Alex, pass my compliments on and congratulations to the team for me, job well done." And that was basically it.
Q. Mr Thomas, on my understanding of your evidence, he didn't say anything?
A. No, he just sort of well, as I said, just sat there. He was obviously thinking, I don't know whether he was thinking of something else or he was thinking of what Mr Aldhouse had said, and then he just said, "Thanks very much for updating us."
Q. Can I just understand the next stage, the stage of having to sift through all this paperwork and analyse it. Did you participate in that or were others under you doing so?
A. Obviously being very early into the inquiry, I'd already made an appointment to see Wilf Morgan down at the DVLA with Steve Gazzard who lived in Frome at that time. Having had an opportunity to glance through the papers, I also noticed that there was a lot of detail about the Church family, Charlotte Church's family, and I managed to contact Maria Church, her mother. So I was basically killing two birds with one stone by DVLA Cardiff and we started off with our first victim, get a feel for it. While I was down there, Roy Pollit, he offered to do as much of the paperwork, photostatting that he could while I was away. LORD JUSTICE LEVESON He was an investigator working for you?
A. He was an investigator, yes. When I came back, it was too far to keep going with Steve from Frome so basically Roy and I teamed up on the whole that was Operation Motorman, or the staff for Operation Motorman was myself and Roy Pollit. MR JAY It's clear from paragraph 4.8 that maybe two activities were going on. The first activity was to look at a sample of cases, you say 25 to 30 cases.
A. Yes.
Q. Which would be fully, as it were, prepped up for prosecution, so you had your
A. That's what we wanted. That was our hope, yes.
Q. So you had your full and complete and pristine audit trail there with all the relevant documents; have I correctly understood?
A. That was our objective. You don't just get that overnight.
Q. Of course not.
A. Once we knew the victim was prepared to give us a complainant statement, then we'd set a pack up.
Q. Then more widely, you've mentioned the figure of 17,000. There's a whole morass of all the material which goes far beyond the sample case
A. Yes, as I said, we had 17,000 victims to choose from if we wanted to.
Q. What if anything did you do with all the remainder of the material which you weren't going to use specifically for the criminal prosecution? What analysis if any did you conduct on it?
A. Well, once we'd photostatted everything, then we sent all the documentation to a computer forensic team because we wouldn't have been able to do the job unless it was on disk, basically.
Q. You tell us this in paragraph 4.8. They conducted an analysis. Their analysis was then put onto an electronic document?
A. Yes.
Q. Which you made available to us, but we haven't analysed it ourselves, it's far too complex and there are a large number of individual journalists' names there which, because of their presence, we couldn't place the document in the public domain. But it's this material, is this right, which covers the you say 17,000 aggregate number of cases that Mr Whittamore undertook; is that right?
A. Well, 17,000 requests to him from journalists, so yes, that's what he agreed to do for the press. LORD JUSTICE LEVESON Just before you go on, Mr Owens, I wonder if I could ask this: you've looked at these books and we, of course, haven't. You've identified some of the bits of information required, names associated with vehicle registration marks, telephone numbers for people, people for telephone numbers.
A. That's correct, sir. LORD JUSTICE LEVESON Is that information which can be obtained lawfully?
A. Car numbers, no. You can't get them. CRO records, no. Not lawfully. Ex-directory I would have said more probably no. You'd have to tell me how to get them, ex-directory numbers, without them being unlawful. There was area searches you know, Hugh Grant, find out which area he's got a flat in, or specific addresses, which were occupancy addresses. But amongst them as well were family and friends. There's no way you can get somebody's list of family and friends lawfully, unless you actually know them and know what's on the list. The only way you'll get them is from BT or whichever phone company. LORD JUSTICE LEVESON All right. Thank you. MR JAY I'm not sure you covered mobile phone numbers. Can you obtain those lawfully?
A. No. Well, I don't know of any register of no directory of mobile phones, so I can't imagine, unless you get it from a friend, but he must have had several thousand friends.
Q. I understand there's a big issue in relation to ex-directory telephone numbers which I'm not asked to pursue with you, Mr Owens, but one of the core participants is particularly concerned about that so I just mention it at this stage. In terms of finished product, the data set produced by this independent computer forensic company, you tell us that the one disk was safely locked away and another disk was, as it were, your working copy?
A. Yes, I had a second disk made, so we always had a back-up basically, and that became my working copy.
Q. Thank you. Can I deal now with paragraph 4.9. Within a few weeks you were informed that you were not to make contact with any of the newspapers identified and you were not to speak to, let alone interview, any journalists?
A. That's correct, yes.
Q. Who gave you that information?
A. Jean Lockett. She was my immediate line manager. She came in one day and said basically, "You're not to go near the press, you're not to make any approach to any reporters or the press". At first I looked at her and said, "Jean, you are joking?" and she said, "No", and I could see on her face she wasn't joking, and I said, "Why?" She said, "Oh, Richard's dealing with it now, he's doing it through the Press Complaints Council". I suppose I was out of order, I wanted to argue with her, and I could see on her face it was a case of "Please don't shoot the messenger".
Q. So to be clear, because there may be some confusion about this relating to other evidence I've seen, the Information Commissioner's office at no stage interviewed a journalist; is that right?
A. No. Well, not the investigation unit. I don't know nobody from the investigation myself and Roy, basically, from Operation Motorman, ever spoke to a journalist about it.
Q. As part of the police investigation, in particular I think Operation Glade, there is reference as to what happened before the judge at Blackfriars in April 2005 to the police having interviewed a handful of journalists. Are you aware of that?
A. Yes, I think I can confirm that, because obviously Glade came out of Motorman. We had a very close liaison, we used to keep in touch with each other, and I don't know for a fact, but the last time I spoke to one of them, which is a long time ago, they were talking about three being interviewed under caution.
Q. So in terms of the continuing progress of Operation Motorman, the focus was on those as it were lower down the chain?
A. Well, yes. Basically they'd drawn a red line and with the press and the reporters above that line and we dealt with anything below that line.
Q. Who were the private investigators and their blaggers?
A. The private investigators, the little blaggers and the corrupt people.
Q. I've mentioned Operation Glade. Operation Glade, you touch on this in paragraph 4.10, Mr Owens.
A. Yes.
Q. This was focusing on misuse of the police national computer and possibly the licensing agency in Swansea; is that right?
A. No, not quite. Yes, anything criminal records, obviously, come off the police national computer. We don't have a PNC and we don't have access to inquire into those. So anything to do with criminal records we handed over to the police for them to investigate. What we noticed is, bearing in mind we'd conducted the raid in south London on 11 or 12 November, we hadn't raided Whittamore until the following March, and what we noticed was there were more vehicles being checked after we'd neutralised the DVLA source, so obviously he's gone, somebody else has stepped in. We checked with DVLA and they did a very, very thorough check and they said those vehicles are not being checked at DVLA, so there's only one other source, so we handed them over with the criminal records. Anything before 11 November was our area.
Q. You say in paragraph 4.12 there was a consultation with counsel. I think we know from other documents we've seen that took place in Birmingham and you attended it?
A. Yes, yes.
Q. You then prepared the documentation for what was a conspiracy charge, statutory conspiracy, I believe, to breach the Data Protection Act, and how many people were the subject matter of that conspiracy or the perpetrators of it? Was it four or five people, maybe?
A. On our side, yes, but obviously they were connected with people on the Operation Glade side. It was like a spider web. You know, everybody knew each other, but some didn't do criminal the CRO checks, and some did.
Q. Certainly. We know in relation to Operation Glade that there were four members of the conspiracy. In relation to Operation Motorman, was it the same four?
A. No, only one, Whittamore.
Q. Whittamore was the common entity, was he?
A. Yes.
Q. The upshot was that you assembled the paperwork as you would do for any criminal prosecution?
A. Yes.
Q. This one may have been on the more complex end of the scale. You submitted the papers to the legal department in February 2004 and as far as you were concerned, the matter was going to proceed on this conspiracy charge; is that right?
A. That was it. We were off onto other things by then.
Q. Paragraph 4.16 you say that in April 2005 you became aware that Whittamore had appeared before Blackfriars Court and been given a conditional discharge?
A. We only knew after that he'd appeared. Nobody told us he was even coming up to court.
Q. Is it your understanding that this related to Operation Glade rather than Operation Motorman?
A. At that stage we didn't know what was going on. We didn't even know Whittamore was appearing in court. We know there had been or heard there had been a bit of bad blood between the Metropolitan Police and our office, so I didn't know what was we as investigators didn't have a clue what was happening.
Q. Right. That's fair enough, Mr Owens. There's no criticism here, although we know from documents we've seen, in particular from an exhibit called RJT49, that what happened at Blackfriars before His Honour Judge Samuels QC in April 2005 (a) related to Operation Glade and not to Operation Motorman and (b) there were four co-conspirators including Mr Whittamore and they each received a conditional discharge. Do you follow me?
A. I am aware of the result eventually, but not at that time.
Q. This did not relate to Operation Motorman, which was still outstanding because it was a separate matter. Do you follow that as well?
A. Yes, yes. You're talking about the little fish.
Q. Were you involved in any of the decisions which were subsequently made in relation to Operation Motorman?
A. Such as? I'm sorry.
Q. There was a decision, for example, to discontinue the prosecutions.
A. No, we were just told oh, discontinue the prosecutions? I'd left by then. Around this time I'd basically had enough. I wasn't taking any more and I walked out. Went on long-term sick. There was already one grievance in which wasn't being attended to, more grievances went in and the first grievance was the first, how can I say, person that contacted me from ICO about the first grievance was 12 months after I'd put it in, and eventually, to cut a long story short, I eventually resigned, I think in September 2006, and went by a tribunal hearing, employment tribunal.
Q. Did any of your grievances I don't want to go into them, but did any of them relate to the conduct of Operation Motorman or were they all separate from it?
A. Yes and no. It was how can I put it? When it's difficult to explain. Motorman didn't prompt it. It was just another example of what followed, if that makes sense. Because I had two very good investigations on the go and basically they were taken off me and closed down by the new head of investigations because Jean Lockett had left by that time. It was like they were closing every operation we had on the go down. And we were basically becoming office detectives. You could ring them but you couldn't go see them. I'm sure you know yourself, unless you actually meet and speak to a victim, you don't get the whole story. So essentially, whatever decision was made after Blackfriars, I had no input into it whatsoever.
Q. Okay, fair enough, Mr Owens. But two of your concerns you express in paragraph 4.18 of your statement. You've already raised the first one. You say: "Allowing for the overwhelming and irrefutable evidence we had gathered and made available, what action, if any, did Richard Thomas or Francis Aldhouse take in respect of the involvement and conduct of the press and their part in this criminal conspiracy."
A. Yes.
Q. It's clear that the answer to your question is that no action in the criminal courts was taken?
A. Yes.
Q. Whether other action was taken we'll hear about when Mr Thomas gives his evidence. Then your second point: "Why, after agreeing a course of action, endorsed by counsel, that all other persons identified as being involved in unlawful activity be jointly prosecuted for conspiracy, was Whittamore the only one concerned in the Motorman investigation to be prosecuted and then only for a simple breach of the act." Can I just be clear about your evidence in relation to that. First of all, the documents show that in relation to Motorman, it wasn't just Mr Whittamore, there were three other individuals who were either private detectives or blaggers
A. Yes, that's yes they were all part of the conspiracy.
Q. But secondly, you're right to point out that journalists were never made part of this conspiracy, do you follow me, but in relation to what counsel was advising when you saw him, he wasn't saying, was he, that journalists were going to be part of the conspiracy? Did he not make it clear that we're going to keep this to the investigators and to the blaggers?
A. I've seen documents that I'd forgotten about, that I've been provided with, that make it absolutely clear why no journalist was prosecuted.
Q. You're certainly entitled to say that, but whatever the reason was, the conspiracy was never expanded to include the journalists, was it?
A. No.
Q. At no stage?
A. No. The journalists never came into the investigation.
Q. What the documents show, privilege has been waived for it, is something I'm going to explore with Mr Thomas.
A. Okay.
Q. Thank you. Can I deal with matters following your departure, which you've frankly told us about. This is now paragraph 5 of your statement, Mr Owens.
A. After I left, yes.
Q. After you'd left. The first report from the Information Commissioner, "What price privacy?" you received a copy through the post from an anonymous source; is that right?
A. It just arrived with a little note on it saying, "Have a look at page 27, item 6.8". It would be very interesting to me.
Q. What that says is, and I'll read is it out, because you know what it says but some people listening to me might not, and I quote verbatim from the report: "This was a great disappointment to the ICO" the "this" was the discontinuance of the criminal proceedings for conspiracy "especially as it seemed to underplay the seriousness of Section 55 offences. It also meant that it was not in the public interest to proceed with the ICO's own prosecutions, nor could the Information Commissioner contemplate putting prosecutions against the journalists or others to whom confidential information had been supplied." Someone had tipped you off to look at that, perhaps for a reason, but what was your reaction when you saw it?
A. It may be correct in relation to the others, you know, the blaggers and the thing, but you could never go back after three years and contemplate prosecuting journalists. They'd never even been investigated. And I there's enough legal people here to know if I I kept evidence you can't put if you have a conspiracy, you can't put five people on the back-burner and wait and see how you got on with the same five people in the front that's getting prosecuted, because you got a good result, right, we'll go and prosecute them as well. Well, they're all part of one conspiracy. You either investigate them all, or those five you have to say we're not going to investigate them which means we're not going to prosecute them. I don't know whether that would be is the correct word abuse of the justice system?
Q. It would be virtually impossible to do?
A. Yes, yes.
Q. I think you've just made a very fair point, Mr Owens, but I wanted to hear you say it in your own words.
A. In the police force, that would never ever happen. You either decide they all get investigated or I mean, it's fine to investigate them and find those five there's insufficient evidence and then throw them out, but you can't just well, I said it, you can't do it, it's impossible. LORD JUSTICE LEVESON It depends. Circumstances change case, don't they, because you may very well decide there's a team here that I would have to investigate. That's 50 people. I don't have the manpower to do 50, so we'll concentrate on the core offenders, on those at the very centre.
A. And that's exactly what we wanted to do. Roy and I had already started, shall we say, a small hit list of which are the most likely journalists we would have seen. LORD JUSTICE LEVESON But what you're saying is more difficult is to say, "Well, we won't go down that category of people".
A. Yes. LORD JUSTICE LEVESON "We won't file them under too hard just to get the low-lying fruit"?
A. Exactly right. MR JAY Thank you. You tell us in 5.2 you read about Glenn Mulcaire's arrest which we know took place on 8 August 2006. You say you certainly never associated it with Operation Motorman. Do you now associate it in some way with Operation Motorman, Mr Owens?
A. Yes.
Q. And why?
A. Basically, at the time one of the burning questions was, especially for the ex-directory mobile phone numbers, what could all these journalists want it for? You're talking about thousands and thousands of telephone ex-directory numbers. And essentially I well, I can say, an awful lot of the names of the victims that are coming up in hacking are in Operation Motorman, Steve Whittamore's books. An awful lot. And my personal feeling was Steve Whittamore was gathering the numbers he wasn't hacking, he was definitely not into hacking, we found no evidence of that. But he was then passing them to the papers and possibly those numbers were being passed to people who hacked. I mean the names of people like Milly Dowler, the numbers, ex-directory numbers, that sort of thing, and it wasn't just an occasional one. There were dozens of them, of the names that have now come out in the hacking Inquiry.
Q. I should ask this question: did you see reference to the Dowlers' ex-directory numbers in the Operation Motorman material?
A. Yes.
Q. Thank you. You then a little bit later, indeed a considerable time later, in August 2009 made contact with Nick Davies of the Guardian?
A. Yes.
Q. Are you able to share with us what you told him in general terms?
A. Basically, it was when he revealed or when the it was right after the Gordon Taylor story broke, that there were more, it wasn't just Clive Goodman and his lone rogue reporter. It was then it dawned on me this is what they wanted the numbers for: to hack. And at the time I think Nick was Nick Davies was trying to get some support, somebody to believe him, some sort of concrete evidence to continue his campaign, and I thought if he saw this, it would highlight how many victims there were in Operation Motorman, and one detective or hacker wouldn't do five or six numbers, and the purpose was to give him some strength behind his own campaign and at the same time let the people out there who'd been victims in Operation Motorman know they'd been victims, because we'd only seen 60 or 70 and been able to tell them. There were still 4, 5, 6,000. I've obviously never counted them. So it was a twofold.
Q. Just to explore that a little bit with you, Mr Owens, and put forward two other possible hypotheses which may or may not be right. First of all, in relation to all the titles who were not associated with the News of the World, and of course you have in mind the list of titles which were tabulated in
A. Yes.
Q. the second report. They might say, "The reason why we wanted these phone numbers was nothing to do with hacking, but we wanted a ready means of contact details for people in case we were going to write a story about them and we wanted to check the accuracy of our story before we published it." Would you agree that that at least is a possible reason why these titles needed these numbers?
A. No.
Q. Why do you think not?
A. There's too many. There are just too many numbers to ring up. And you've got an example of they've got the number, they've got the list of family and friends and then they've had family and friends LORD JUSTICE LEVESON You have to be a bit careful about that, haven't you, Mr Owens, because you're not saying that for every single number they were all family and friends.
A. Oh no. LORD JUSTICE LEVESON So unless you correlate what information was going to what newspaper, it's actually quite difficult to decide what that newspaper might have wanted the information for?
A. Yes. LORD JUSTICE LEVESON Your criticism is that you weren't ever allowed to look at it?
A. Basically well, we weren't allowed to ask the question. We were not allowed to ask the press what did you want it for? MR JAY Your point is it might not have required a huge amount of delving and interrogation by you of the relevant journalists to get the answers you needed to these questions, some of which might have incriminated the journalist, but others of which might have exonerated them
A. Oh yes, I'm not saying they were all dishonestly obtained not for a dishonest purpose, or you know, the gutter press, so to speak, to chase people, find out where they're going to meet and that sort of thing.
Q. The second hypothesis I put to you is specifically in relation to News International and it's this: they had their own expert hacker in Mr Glenn Mulcaire, who might have been the best in the business. Why did they need Mr Whittamore as well? Do you follow that?
A. It was listening to Mr yesterday.
Q. Mr McMullan?
A. Mr McMullan, it was listening to him that, how can I put it? It rang a bell. Because they appear to have used the sames Hell's Angel, as he put it, if it is the same Hell's Angel, so there was actually an indirect link between Whittamore, McMullan, with this Hell's Angel, and he was the man who could get the phone numbers. It was only when he said it yesterday that I I put this connection together. LORD JUSTICE LEVESON All right. MR JAY Thank you. LORD JUSTICE LEVESON The answer is, all these are things that you would have looked at?
A. Yes, sir. I wish we could have. LORD JUSTICE LEVESON All right. MR JAY Then you refer to a Panorama programme, which indeed is the same one I saw over the weekend, 5.6 of your statement, and Mr David Smith.
A. That's what prompted me to that was going over the line.
Q. What did he well, you set out what he said which you were concerned about. He did make a statement in the programme that no journalists was ever prosecuted: because we didn't have the evidence that those journalists knew beyond all reasonable doubt that the information had been obtained illegally." In one sense that was entirely true, because they didn't have the evidence, and in the other sense it was you would use your own word in relation to it. They didn't allow you to take the reasonable steps to obtain the evidence?
A. We were stopped from getting the evidence. Well, additional evidence, and I'll still contend to this day that the evidence we had was strong enough to stand on its own. In certain cases. You have 30 years of experience in the police and some considerable experience in this office, so you obviously had a good instinct for strong evidence and weak evidence.
Q. You've used the term "in certain cases". Could you help us a little bit more with that? Why do you feel the evidence was
A. It's by the extent of it, the number of times they'd used Whittamore we had some journalists in there, one or two occasions they've used him. We have some who have used him 200, 300, 400 times, that are going for criminal records, ex-directories. So you'd have to look at how many entries and exactly what they were asking, and some of them were persistently obviously asking for
Q. Can I just ask you one further question about this? We see various data set out in Mr Davies' book which had been obtained pursuant to a request under the Freedom of Information
A. Oh, his book had been published before I contacted him.
Q. Yes. What he said, he said, I think there were 13,343 individual taskings. I know your figure is higher, I'm going to come to that. He said, I think, 1,900-odd you couldn't classify one way or the other
A. Where is this set out?
Q. It's set out in Mr Davies' book.
A. No, the book had already been printed and published
Q. I'm just referring to it as a convenient means of identifying the different categories of data. LORD JUSTICE LEVESON I think you're at cross purposes. What Mr Jay is saying to you is that Mr Davies asked through the Freedom of Information Act for certain figures
A. Oh, yes. LORD JUSTICE LEVESON And was provided with those figures. They're not your figures.
A. Yes. LORD JUSTICE LEVESON They were in his book before you were in touch with him.
A. Yes, yes, I understand. I thought you said they were my figures. MR JAY No, your figures I appreciate are slightly bigger figures and I'm going to come to the bigger figures, but at the moment I'm preaching this sort of as uncontroversially as I can because the purpose of the question is rather different. You have 13,343, you have 1,900 they say we don't know, but we have about 6,000 where they say a very strong case, I think it was, and about 5,000 probable case of breach of the Act. Are you able to assist at all about this 6,000 and 5,000 figure and whether you would agree with that sort of assessment and, if so, what are the considerations which would lead you as an experienced police officer to classify a case as a very good case or a probable case?
A. On an individual basis or overall?
Q. I think overall and then on an individual basis.
A. Basically, obviously on an overall case, you'd look for how many enquiries each journalist has done and then look at the type of enquiry they've done. Even one journalist obtaining one criminal record, that's a whole there's no disputing he's guilty. When I say guilty, he's committed an offence. LORD JUSTICE LEVESON Because nobody can lawfully obtain that sort of information?
A. You can lawfully obtain it, but only under certain circumstances. DVLA will release the name and address of an owner of a vehicle provided LORD JUSTICE LEVESON No, you were talking about criminal records there.
A. Oh, sorry, criminal records, yeah. No, he can't lawfully obtain criminal records. MR JAY And you're right, because I think I've done it myself. In relation to DVLA, if you say you've been involved in an accident and you give the registration mark to DVLA pursuant to a lawful request
A. Yes.
Q. then they have to answer it?
A. Yes, they can then release it. But if you haven't been in an accident and you say you have, you're back to breach of section 55 of the
Q. Yes.
A. Data Protection Act.
Q. This is helpful because it's enabling us to classify, do you see?
A. Yes.
Q. Is there any further assistance you can give us on the other types of information?
A. Well, ex-directory is there's only one way that I've ever known you can lawfully get an ex-directory number and that was taught to me by when I say taught, it was told to me by an old private detective and he said what he used to do, if it was an ex-directory number, he couldn't get them illegally well, he wouldn't get them illegally he'd go back years and years into the old directories.
Q. Yes, I see.
A. It may well be at some time it wasn't ex-directory and it was made ex-directory, but he said invariably that was the you know, that was very few and far between.
Q. That's one of the examples, if one looks at the report, where Mr Thomas is saying it would be so expensive to do that that
A. Well, yes.
Q. you could reasonably infer that that's not the way the information was obtained?
A. Yes.
Q. I think we're beginning to get the hang of this now, Mr Owens, thank you very much. But after the Panorama programme, you tell us at 5.8 that you decided to re-examine the evidence?
A. Yes. After what Mr Smith had to say I thought let's have a look back at that.
Q. You'd obtained your own personal working copy of the Operation Motorman database, is that right]?
A. That's correct.
Q. And you explain why in paragraph 5.9.
A. Yes.
Q. Can I ask you what analysis if any that you carried out, and this was an analysis you undertook, it must have started in April of this year?
A. Yes. Bearing in mind I'm not an expert in drawing up tables and analysis, I did it in the simplistic way. Obviously the overall figure published in "What price privacy now?" was something like, off the top of my head, 3,500 or 3,700. In my total, there was 17,000, 17,500. And then when you look at the individual papers on the league table, obviously the easiest one is to start at the bottom, the Sunday World. One reporter and one request to Whittamore. You only have to type in Sunday World and up comes the name of that reporter. And you tap in his name and I found 24 requests that that one reporter had made of Whittamore. And they were criminal records and vehicle numbers. They weren't just all connected to one person. Not like sort of 24 requests in relation to one individual. There may have been a couple of requests related to one individual, but I didn't count how many individuals, but there's got to be four or five.
Q. Two questions flowing from that. The first relates to the figure of 3,757, which you give at the bottom of page 15.
A. Yes.
Q. I think it's fair to say, and this is certainly my understanding, that the table which we see in the second report, "What price privacy now?" it's true, if you add up all the numbers, it does add up to 3,757, does not claim to be the total of all Whittamore's taskings. They were just looking at a narrow cohort of
A. I didn't know what the criteria was for this table.
Q. The second point is the issue of how you look at the number of requests. You do indeed make this clear in your statement. But the difference between, if I can put it in this way, your approach and the ICO's approach is whether certain requests should be grouped together and treated as one, which may have been the ICO's position, or whether they should each be treated individually, which from my understanding of your evidence is your position?
A. Yes, yes.
Q. Do I have that right?
A. Yes, that's correct. And mine, there are 17,500 entries in the four books.
Q. But again, I think this is probably obvious by now, that what it means in quantitative terms is that the minimum number is the ICO's official 13,343 figure, but the maximum number is your approximately 17,500 figure?
A. I'll accept that, yes.
Q. So that's the difference between you?
A. Yes.
Q. And without, I'm afraid, looking individually at the data, it's not going to be possible to resolve which of you is right? Do you understand that? LORD JUSTICE LEVESON And it probably doesn't matter, Mr Jay. MR JAY I was about to say it doesn't matter anyway, because we have frankly a hell of a lot of requests. The difference between nearly 13,500 and 17,500 is not so big that we need lose huge sleep over it. But I see where you're coming from, Mr Owens, don't get me wrong. Then you look at a further analysis. I am asked to draw to your attention, because I know News International are concerned about it, paragraph 5.13, please. You say there that the figures published for the Sunday Times show one reporter making four requests when the evidence shows six reporters making over 100 requests. Can I just take you through the sequence of events and see how far we get with that, that it is right that the original table published by the ICO in December 2006 shows the Sunday Times with in fact seven reporters and 52 requests, which of course isn't the same as the figures you've given in your witness statement, but is closer to your figures than to the final figures given by the ICO's office. Do you follow that?
A. How can I put it? This the figures I worked out from the books, but I'm thinking their figures are putting instead of individual if there's two entries from one individual, that's one inquiry as far as they're concerned. That's the way I'm I think it's coming across.
Q. This was a matter which was specifically corrected, though, by the ICO. If I can read out what this is exhibit RJT29. I've seen a better document but I've lost the reference. I was looking at it this morning. There is a letter from Mr Thomas where he apologised to the Sunday Times, I'm sure it's this letter but I've seen a shorter one and a clearer one, and he accepted that the correct figures for the Sunday Times, and I'm afraid you're going to have to take it from me for the time being but we will produce the document, were one reporter and four requests, and then the amended table reflected that correction.
A. I've never seen an amended table.
Q. I'm sure you haven't, Mr Owens. The only point in me putting that to you was to make the Sunday Times' position absolutely clear.
A. As I said, I'm just going
Q. Yes. The basic points you make are clearly set out in paragraph 5.18, aren't they, Mr Owens? LORD JUSTICE LEVESON Yes, the letter you wanted to refer to is attached to tab 34. And the observation is at 00487: "We took issues we raised very seriously and your letter prompted us to revisit the composition of the table of publications. A detailed investigation has now revealed that we recorded the figures to the Sunday and the News of the World incorrectly. The true figures is that there are only four cases at the Sunday Times, all of which involve one journalist." MR JAY Yes. LORD JUSTICE LEVESON "The figures for the News of the World increase." Was that the letter to which you were referring? MR JAY There was a yet further one that I was looking at where Mr Thomas gave a fulsome apology, but I can't find it. I thought I'd noted it down. But it's certainly the data as set out in that letter. Yes, he does make an unqualified apology. Maybe I'm thinking of the same letter all along. LORD JUSTICE LEVESON Yes. Although he does say: "I do not think that it makes a material difference to the overall thrust of the two reports." MR JAY The bullet points you make, Mr Owens, in 5.18, you feel it a wrong decision in the first place not to investigate a journalist. That decision was not based on any advice by counsel or any lack of evidence. You say the decision was based on considerations of fear and the report was too little too late.
A. Yes.
Q. In your supplementary statement, you make it clear this is your response to what Mr David Smith said that you are well aware that by disclosing the information you had, you would be in breach of section 59 of the Act?
A. Yes.
Q. And then you say: "In the first instance, I tried to make contact again with Mr Davies." But you were unable to do so. But you did and you tried to make contact with four other people. Am I to deduce that you failed to make contact with those people?
A. I answer it in my next paragraph.
Q. Can we be clear
A. Oh, sorry.
Q. Who did you make contact with?
A. I made contact with one of them. I'm quite happy to name them, but I think, sir, you should know the names I'm going to give before LORD JUSTICE LEVESON I don't really think it matters. The point is that in the end you decided that the public interest required you to disclose what you disclosed and so that's what you were going to do.
A. Yes. LORD JUSTICE LEVESON And the consequences will be the consequences?
A. Correct, sir. MR JAY You feel so strongly about this that it's clear, according to your conscience, I suppose, where the public interest takes you? Have I
A. I have no concerns, sir.
Q. Just a few questions from others, if you understand. There are other people in this room who want me to ask questions.
A. Yes.
Q. I have asked some of the questions. This issue of ex-directory phone numbers. Would you agree, at least to this extent, that we're talking about ex-directory phone numbers in relation to landlines?
A. Yes.
Q. And it's much I'm not saying it's impossible, but it's much harder to hack into a landline, isn't it, compared with a mobile phone?
A. True. Well, I've never done any hacking and I'm not a telephone engineer, but let's put it this way. If I want to speak to someone in confidence, I insist that they ring me on a landline, if that answers your question.
Q. I think it does. There are some questions from someone else. Can I deal with it in this way, and I hope fairly? Were there concerns within the office about your reliability as a potential witness, that is concerns which were expressed to you?
A. No. Never.
Q. You may certainly answer this question no, and if you do, you're entitled to, but I'll put the question: are you willing to tell the Inquiry why you took an extended period of, I'll put it in these terms first, leave from 2005?
A. Yes. Everything. Yes, I'll quite happily tell the Inquiry. Do you want me to tell the Inquiry?
Q. First of all, was it sick leave?
A. It was I was off sick, yes, with stress for the very simple reason if I hadn't have gone off, I was getting victimised and they were trying to sack me, and I'll explain it in full quite happily.
Q. Maybe it's possible to short circuit it in these terms and then we'll see whether we need to go into it.
A. Okay.
Q. Were there proceedings I think you've made it clear that there were, but just to have it confirmed were there proceedings before an employment tribunal in relation to these matters?
A. There were no disciplinary proceedings LORD JUSTICE LEVESON No, proceedings from an employment tribunal which you brought?
A. No. Well, I couldn't until I resigned, and with grievance the very simple fact is I put a grievance in that I'll tell you the details if you want, but I put a grievance in for the simple fact I put a grievance in, four months later nobody had spoken to me about that grievance. Instead, I had now been getting and the grievance was against one of the people was Mr Aldhouse, the deputy himself. Nobody had spoken to me about my grievance, not a word. But in the meantime, I was suddenly getting you know, I couldn't cough in the office without getting a disciplinary notice that they've done me. LORD JUSTICE LEVESON All right.
A. That was within I'd never had a disciplinary notice on me in the seven years I'd been there. After I put the grievance in, I had three disciplinary notices served on me within the next six weeks. So and nobody had spoken to me about my first grievance, and I went off sick basically to protect myself because I knew it would just be grievance after grievance. I remained off sick and I still haven't got the emails, but I'm sure the solicitors have dealt with it. Trying to get them because I wasn't giving in, I wanted that grievance outed because part of it was false pretences, and I stayed off sick and eventually I said I'm going to put me resignation in, they said oh no, no, they brought in independent not with themselves. That first grievance was first looked at one year later and my grievance of false pretences was upheld. LORD JUSTICE LEVESON All right. MR JAY Did you resign claiming constructive dismissal?
A. Yes, yes, sorry, yes, I did.
Q. Were there proceedings or was your employment
A. No, it was
Q. Was there a settlement?
A. It was settled, yes.
Q. I think what might be said, so I'll make it explicit, is that you have some grievance, continuing grievance against the Information Commissioner's office and therefore your evidence should be treated as unreliable in some way. I'm inviting you to comment on that.
A. Absolute rubbish.
Q. Okay. The copy of the disk which you took, were you intending to use that in any way in employment proceedings if necessary?
A. One of the trumped-up disciplinary related to my how shall I say? The quality of my work.
Q. I see.
A. So let's put it this way. I was going to say, well, you know, look at the work alone that's in this one. Because I was supposed to supervise the other investigators, and to be honest, the majority apart from one were all 25, 30 years served officers. They were all dotted around the country. I think one of them was a lack of supervision. LORD JUSTICE LEVESON All right. MR JAY The last point is, and I think you've already confirmed this, that in your second statement you say you made telephone contact with somebody, because you identified four people you were trying to contact. Did you
A. No, I didn't make contact with any of those. Well, I made telephone contact with one, who never was going to come back to me, never did.
Q. It was an initial contact and nothing came of it?
A. It was just trying to find I needed some advice on which way to go, because as I said, section 59 is a criminal offence and in my 60s, after 30 years' service, I don't want a criminal offence, and in the end I said what I said to (inaudible), I said I'm going to get it out there into the public, I went to the Independent.
Q. In relation to the Independent newspaper, what in a nutshell happened, if anything?
A. They well, I said I'm you know, don't put me name in, but whoever reads it will know who I am. I said I don't like my name being publicised, as such, but anyone at ICO that had anything to do with the investigation should have known who I was within ten seconds. I think the Independent publishing on the front page that an ex-inspector who was the lead investigator in Operation Motorman I mean, the Operation Motorman team was myself and Roy Pollit. I was the SIO, he was the investigating officer. So I think there were one or two clues put there for them. MR JAY Thank you very much indeed, Mr Owens, for coming to give your very clear evidence.
A. Can I just add something onto that? MR JAY Yes, please.
A. You're talking about the Independent. That article came out on 14 September. And I basically knew I'd be getting a knock on the door tomorrow, so put the disk on top of my computer and when they come, they can have it. Nobody came, nobody came, nobody came. And the first people that came to my house was on 18 November. That's six, eight weeks. Nobody from ICO rang me up or came and said, "Can we have the disk?" And when the knock on the door it was two police officers who have nothing to do with data protection, and they were very polite, very courteous, they had a search warrant and they didn't have a clue about data protection. They'd come as I said in the paper, they'd come on a fishing trip because ICO didn't the words I used to them is, "You've come to do ICO's dirty work", and they were very embarrassed. So that's the sort of people that the I know senior management's changed, but they have to go to the police to get them to do their job, the ICO job, and I don't know, perhaps they were frightened I was going to fight them off. My 4-year-old grandson can beat me in a fight now. But that is typical of ICO as it was and obviously as it still is: heads buried in the sand. Their policy was basically: if you ignore a problem long enough, it will go away. Motorman didn't go away because of the hacking and then they knew that this was in fact, I'd already emailed the Leveson Inquiry, said, "You've got the copy, I'll be handing over the original to make sure there's been no tampering with it when I am here today", and that's why unfortunately circumstances beyond my control prevent me from handing my original, as I had, to you. LORD JUSTICE LEVESON All right. Thank you very much. MR JAY Thank you. LORD JUSTICE LEVESON We'll just have five minutes. (3.39 pm) (A short break) (3.46 pm) MR BARR Sir, good afternoon. The last witness today is Mr Mark Lewis, who is being recalled. LORD JUSTICE LEVESON Yes. MR BARR Before I recall Mr Lewis, Mr Rhodri Davies would like to say a word about the exhibits to Mr Lewis's second statement. LORD JUSTICE LEVESON Yes. MR DAVIES Sir, I just wanted to deal with this because these documents come from us so I wanted to explain what they are. They are all documents which were given by us to the police. One of them, although it was given by us to the police, does not originate from us. It is a document headed "Report 3", which is I think the first document in the exhibit. That was given to us by Charlotte Harris, who is going to give evidence next week, and it was then given by us to the police. LORD JUSTICE LEVESON Yes. MR DAVIES We do not know its origins. LORD JUSTICE LEVESON Oh. All right. MR DAVIES Nor, I think, does she. It was given to her, but she doesn't know LORD JUSTICE LEVESON By the police? MR DAVIES No. It was given to her by an anonymous source. LORD JUSTICE LEVESON Oh, I see. MR DAVIES By her to us and by us to the police but we do not know its origin. LORD JUSTICE LEVESON How interesting. Yes? MR SHERBORNE Does it assist if I say that the origins of it are explained in Ms Harris's witness statement? MR DAVIES That's true, but what she said is it was given to her by someone she doesn't name and she doesn't know who prepared it. LORD JUSTICE LEVESON All right. Yes? MR DAVIES I just want to make it quite clear that although it reached Mr Lewis from us, via the police, it's not our document and we don't know where it comes from. LORD JUSTICE LEVESON I think that is important to make clear. Thank you. MR DAVIES The other documents, I think all of them, pass between News International and Farrers, and normally they would be privileged. They were provided by us to the police in order to enable the police to carry out their investigation and with a limited waiver of privilege for that purpose. They were given, it seems, by the police to Mr Lewis in circumstances which are not quite clear to us. LORD JUSTICE LEVESON And that's how they come to me? MR DAVIES That's how they come to you. LORD JUSTICE LEVESON But the question is well, I rather gather, given what I've just been told, that whatever privilege there may be in the document is not a point you're seeking to take now? MR DAVIES Exactly. The question is are we going to object? The answer is, in the circumstances, the answer is no. LORD JUSTICE LEVESON Because you're entitled to and then I would have to rule upon it. MR DAVIES Yes. That said, I want to make it clear that that applies to these documents and I'm not making any general waiver for any other documents for any other purposes. LORD JUSTICE LEVESON So it's an argument that may yet still happen? MR DAVIES Indeed. LORD JUSTICE LEVESON Very good. MR DAVIES That is the position. LORD JUSTICE LEVESON Right, thank you. MR BARR Against that background, I recall Mr Lewis. LORD JUSTICE LEVESON Yes. I don't have the correct bundle of Mr Lewis. I have Mr Lewis's bundle but I think it's his original bundle. MR BARR I don't know whether my instructing solicitor has a spare copy. (Handed) LORD JUSTICE LEVESON Thank you very much. Mr Lewis, you've taken the oath in the Inquiry so that's perfectly in order. You're still bound by it. MR MARK LEWIS (recalled) (on former oath) LORD JUSTICE LEVESON I'm sorry you had to come back, but I'm sure you understand why.
A. I understand. LORD JUSTICE LEVESON Yes. Questions from MR BARR MR BARR Mr Lewis you provided the Inquiry with a second witness statement. Are you familiar with the contents of the statement?
A. I am familiar with it.
Q. Are they true and correct to the best of your knowledge and belief?
A. The statement is true.
Q. We'll take the witness statement as read and I'll ask just a few questions arising from it. You tell us that you attended a police station on 4 November of this year and you were there shown a video which you were told was taken by a private investigator, Mr Derek Webb; is that right?
A. That's partly correct. I don't think they actually told me who the person who took the video was. They just showed me the video.
Q. Is it right that you don't know who took the video?
A. It's subsequently been said to be Derek Webb and I've seen the documents, but at the time the police gave me the documents and had already shown me the video and the documents refer to the video.
Q. I see. The video, you tell us, shows footage of your ex-wife and one of your daughters, who was then aged 14?
A. That's correct.
Q. Could you describe to the Inquiry your reaction when you were shown that video?
A. That was horrific. That was truly horrific, that my daughter was videoed, was followed by a detective with a camera. I mean, just followed. That shouldn't happen to anybody's child. I mean, obviously there's worse things I acted for the Dowler family, so I can't really compare one thing with the other, but, you know, I do my job. I don't expect my children to be followed. Actually, it's much wider because it was one of my daughters, but all my daughters I have four daughters they all said, "Does that mean someone was watching our house?" And the fact is that video, until it was handed to the police, was sat in the offices at Wapping at News International. They had it. They ought to be ashamed of themselves. It was horrific. It was a horrific moment to be shown that. I didn't know what I was going to see. I went to the police station reasonably calm, but I didn't expect I didn't expect to see that. They had no right to do that. LORD JUSTICE LEVESON Mr Lewis, can you tell me this. Can you tell me, from what you saw or what was evident on the tape, when it was taken?
A. It was taken about April/May 2010, when my youngest daughter was 14. LORD JUSTICE LEVESON All right. MR BARR You were also shown a report which was produced by a private investigator's agency called Tectrix, weren't you?
A. I was shown that.
Q. And that was a report which had been commissioned by a solicitor, Mr Julian Pike of Farrer Co, who was acting for News Group Limited?
A. Correct.
Q. We won't go into the contents of that report for reasons of your privacy and the privacy of other persons, but it's right, isn't it, that the purpose of the report seems to have been to investigate aspects of your private life?
A. News International sought to destroy my life, and very nearly succeeded. I mean, the whole thing, when you look at these documents, is the interaction between a journalist who is doing a report for whatever reason, because the journalist it's another report but there was a comparison of notes between Farrer Co, and Julian Pike of Farrer Co was being told by Tom Crone, the in-house counsel, to compare notes.
Q. We're going to come to the detail and to look at some of the documents in a moment, and perhaps if we can start that journey through your exhibits by looking at the document which following the pagination at the bottom right-hand corner it's been paginated more than once I'm looking at page 15 and it's a document which is headed "Report on Lewis and Harris investigation, May 2010". Might I ask that the technician display this document on the projector, please. This document was created by Julian Pike on 5 September 2011, according to the face of the document, wasn't it?
A. According to the document, yes.
Q. And if we look at paragraph 1, at the top of the page, which is under the subheading "Background", it appears to set out something of the perception on the News Group News side about you, and in particular it says I'm looking now four lines down: "It was pretty clear to us that the source of the Guardian's information was almost certainly Mark Lewis, Taylor's lawyer, despite the strict confidential terms of the Taylor settlement agreement." Could I just ask you: did you leak any protected information to the Guardian newspaper?
A. I was not the source of that story, never gave information out. It was complete arrogance and idiocy by Julian Pike at Farrers and Tom Crone. They were so busy navel gazing that they hadn't realised that there were so many possible sources of this story and that the story itself was open, the court file was open for anyone to look at before it was closed. And because they were so arrogant and so stupid, they didn't bother to look at that, they just set out to ruin my life.
Q. Might we look at paragraph 2, please. At the top of paragraph 2 it says: "Also on 9 July 2009, Lewis went on Newsnight and confirmed he was acting for Clifford." That's a reference to Max Clifford, isn't it?
A. That's correct.
Q. On 9 July 2009 were you acting for Max Clifford?
A. On 9 July 2009 I was away. I wasn't on Newsnight or anything. They've got the dates wrong in this report. There is so much that is wrong with what they're doing. I was away at the time. This story had broken in the Guardian. I was notified about it by Julian Pike, who telephoned me on my mobile phone to say that the information about the Taylor settlement had got out. It was as soon as I got off the plane and turned my phone on
Q. This is the conversation you told us about last week.
A. he told me about that. I was away. I didn't come back until the next day until the Saturday. I think that was a Thursday, 9 July. I came back it would have been a Thursday because the flight's only on a Monday and Thursday. I landed at the airport on Thursday. I travelled further on. On the Friday, I started to return, on the Saturday I returned to the country, so I couldn't have been on Newsnight on the 9th. I think Max Clifford was on Newsnight on the 9th.
Q. Perhaps I can put it this way. The suspicion appears to have been that you were asserting that you were representing Max Clifford when you weren't. Did you ever make such an assertion?
A. Yes, I did, but in context I came back on the Saturday. On the Sunday, I went to see Max Clifford. I went with Charlotte Harris, who is at another law firm, JMW. I was at George Davies at that time. It was to be dealt with and Max Clifford appeared to have agreed to that as a joint instruction because we'd worked together on the previous phone hacking cases for Taylor, et cetera, and worked well as a team. And so I was being instructed on that. The whole thing then went ballistic in terms of my or devastating in terms of my career, that I
Q. In ways you described last week?
A. This report talks about this being very good for my career, or one of the reports talks about this being very good for my career. If my income, if I can put, went down to less than 3 per cent of what it had been before, if that can be described as being very good for my career, then it was very good for my career, but I'd rather have the other 97 per cent back.
Q. That's a very clear answer. Could we have the next page, page 16, on the screen, please, and the bottom half of the page. I'd like to take you, please, Mr Lewis to paragraph 8, and here we see something of the News Group News motive. It says: "On 26 March 2010, we advised Crone that News Group News should look again at preventing JMW and Stripes from acting. This was driven by the view that Lewis and Harris were deeply untrustworthy and the potential cost savings Crone had anticipated had not materialised in Clifford. News Group News was advised to instruct specialist counsel on whether steps could be taken to prevent them from acting." So it appears from this, doesn't it, that there was a decided attempt to try and oust you from acting in phone interception cases?
A. Absolutely. It was an intentional tactic to attack me. Look, I take it as a huge compliment that I had the News of the World and Tom Crone and Julian Pike calling me untrustworthy. I'd count my fingers if they thought I was trustworthy.
Q. Can I just ask you about that? I'll put it to you squarely. Did you do anything which might have given them reason to consider you untrustworthy?
A. No, not at all. It was on the contrary. What was happening around that time is I'd been instructed by someone to pursue a claim, and in order to attack me and attack my client, I was acting for somebody called it's on public record I'm acting for Nicola Phillips, who was Max Clifford's assistant. They assumed, wrongly, that there had been some sort of provision of information, confidential information. They were too stupid to realise that there had been statements in open court naming Nicola Phillips that had been given to Nicola Phillips by a journalist who and Nicola Phillips had then contacted me to act. They just missed the point. These were such obvious points for them and they were too stupid to work it out.
Q. If we can go to the next paragraph, please, Mr Lewis: "On 5 May 2010 we were instructed by Crone to instruct private investigators to look into then we've had to redact the next section "and investigations firm Tectrix, which had been used on a number of previous occasions by this firm, were instructed to carry out electronic searches." That was the report we touched on a little earlier. Could we have the next page, please?
A. Tom Crone is on record as having said he didn't investigate me or authorise investigations. I think one has to remember that because quite clearly black and white suggests otherwise.
Q. We move now to the final page of this document, which is now up on the screen. We see in paragraph 10 it recorded that Mr Crone instructed Farrer Co to instruct specialist counsel on professional duties and obligations. In a moment I'm going to take you to the note of that consultation, but sticking with this document and following this summary, we see at the end of the document at paragraph 13 that following the consultation and some follow-up advice from Farrers, that no further investigations into you and Charlotte Harris were carried out by Farrers or on its instructions after 18 May, looking back to paragraph 12 to get that date. And they assert that at no stage has Farrers been involved in any investigations into Mark Thomson, who the Inquiry also heard from last week. Can we now turn to the consultation record to see how that conclusion came about? It's at page 7 of the bundle, and could we have that on the screen, please? Could we start with the heading at the top, please? Thank you. We see that the client was News Group Newspapers Limited. The date was 13 May 2010. And the matters are listed on the top left. We see underneath the line in bold text it says: "JCP and RXC " Do you understand that to be Julian Pike and
A. If I go through these attendance notes, I'm not sure that the client, although the client is shown as News Group Newspapers, the last one, which is Kelly Hoppen, has a different reference number, so I suspect there's a second client from that. The first ones are News Group Newspaper claims. I don't think the Kelly Hoppen is on the same client basis.
Q. Do you know who
A. RXC is Rowena Cordery. The chances are that she doesn't have a middle name and that's why solicitors often use X as a middle initial because I'm sometimes MXL if there is another ML. MR BARR Thank you. I see my learned friend Mr Sherborne about to rise to his seat. MR SHERBORNE I was just rising to correct something Mr Lewis was saying because he wouldn't know it. Kelly Hoppen had a claim but it was originally brought in the Queen's Bench Division against a number of other individuals. It also then included Mr Mulcaire and News Group and was transferred to the Chancery Division to be dealt with with the other claims, and that's why it has a slightly different reference number. LORD JUSTICE LEVESON Thank you very much. I don't actually think it matters. It's obviously relating to this whole investigation that's being undertaken. So the names on the matter may not take us very much further. So it's Mr Pike and this other lady meeting Queen's Counsel at chambers to discuss the professional conduct issues. Right. MR BARR We're going to hear from Ms Harris in due course so I don't need to dwell in any detail on the first page. Suffice perhaps to take us to the very last paragraph on the first page where we see leading counsel's advice was that he said that the case against Harris and Reed was "hopeless". He asked what the position was with Gordon Taylor and if he could be persuaded to take action against you.
A. Phenomenal. Actually phenomenal that leading counsel could find it on his own behalf to suggest that News Group Newspapers ought to persuade one of my clients, someone I had acted for, someone I'd got a lot of money for, to sue me even though he hadn't threatened to sue me, had no wish to sue me, as far as I know, and didn't sue me, and yet he's suggesting he suggests a lot of things that he really ought not to have done. I'm flabbergasted.
Q. Can we go over the page and have on the screen page 8. I'm interested in the section about a third of the way down. This is in a section under the heading "Background Mark Lewis/Gordon Taylor". The third paragraph down says: "JCP said Taylor does not want the details of his claim regarding News Group to come up. Not even his wife knew that he did the deal." Then if I skip to the last four lines, it says: "Brabners [that's Mr Taylor's solicitors] then investigated the matter with a view to bringing a claim against George Davies And they were the partnership that you were a member of?
A. Yes.
Q. and conduct proceedings against Mark Lewis." And you told us about those last week. "JCP has been told previously that a complaint had been formally made by Gordon Taylor against Lewis and there was some complaint with the SRA."
A. Can I just deal with that in case I didn't make it clear? The complaint that he made against me, Gordon Taylor, was nothing to do with any leak or anything. It was to do with he said that he had agreed with me that I wouldn't act for anybody else, so that I was wrong to take the instructions to act for Joanne Armstrong. It had escaped him that I'd acted for Joanne Armstrong before I'd acted for him. It was nonsense. Likewise the advice about a waiver to Charlotte Harris and Jeremy Reed. There's also been a waiver to me because I'd dealt with three claims. Farrers had objected and maybe Gregory Treverton-Jones QC hadn't been told that in his instructions, but I'd acted for two second and third claimants against News Group beforehand and they'd agreed to that. They'd raised the issue at that time and then waived it. This had nothing to do with professional conduct. This had everything to do with trying to stop me, trying to stop Jeremy Reed, trying to stop Charlotte Harris from acting against them because they'd been caught for doing what they'd done.
Q. You made very clear that their complaint was dismissed. Might I suggest though that what this paragraph seems to indicate is a degree of liaison between those acting for Mr Taylor and those acting for News Group News?
A. Oh, absolutely. There was some liaison and co-operation between Gordon Taylor and his solicitors and News Group. It's an oddity, really, that you have a union chief executive who's supposed to represent his members, seems to be more concerned at protecting a newspaper that's attacking his members and he basically allowed them to carry on being attacked by doing what he was doing. I understand he hadn't told his wife about the settlement, but that's really a matter for him to deal with on a domestic level, but he is a union chief executive who ought to have represented his members.
Q. If we turn now to page 10 following the internal pagination, I want to pick up on the advice that was given about a potential claim against you. Looking now at the first paragraph underneath the numbered paragraphs: "Gregory said that we would need to develop a body of evidence against him." That's referring to you, isn't it? "Insofar as wanting to get a court order to stop him from acting, this would be virgin legal territory."
A. But there were two parts to that, because apart from it being virgin legal territory, so there was no legal authority for doing it, he had to develop a body of evidence because the evidence that he had didn't support the case anyway. So apart from the facts being against him and apart from the law being against him, it was a wonderful case. For another client.
Q. We'll certainly come to the overall assessment in a moment. Taking you to the next paragraph, four lines at the bottom of that, here we go to the facts: "Gregory said we would need very strong evidence that Lewis simply cannot be trusted to abide by confidentiality obligations. Tactically, Gregory said it would be better if the running of the case were to be made by Gordon Taylor rather than the Murdoch press." I'm going to come in a moment over the page to the assessment of where they were with the evidence, but before we do that and whilst still on page 10, can we pick up on the paragraph four paragraphs from the bottom? It begins "JCP said that ". The last sentence perhaps puts quite graphically what the key objective seems to have been. It reads: "The key interest is to keep Lewis/Harris out of these cases to reduce the negative publicity." Is that your understanding from having read all the documents of what the motive seems to have been?
A. Of course, I mean the previous paragraph, the final sentence, appears to be to cause embarrassment and then use this in other cases against NGN, and then that was the context of it. And then say the key interest is to stop me, to stop me, to stop Charlotte Harris, to keep us out of these cases, to reduce outrageous. LORD JUSTICE LEVESON What they're saying is that you're trying to use the Guardian to cause embarrassment, isn't it?
A. I understand that. LORD JUSTICE LEVESON That's what they're saying. So they're saying they want to stop you doing it.
A. Well, to keep me stop me from acting. LORD JUSTICE LEVESON Yes, well, I understand. MR BARR If we go to page 12, and starting at the top of the page, the first sentence reads: "Gregory said that in respect of Lewis, his advice was that he did not think there was enough evidence yet to persuade the court to stop him from acting." So as you said a moment ago, they had problems with both the law and the facts.
A. Apart from that, it was a great case.
Q. Can we go now to the third paragraph from the bottom of that page. There's a short paragraph which reads: "Gregory said that with regard to the other evidence, Gordon Taylor is the person with the greatest right and interest to bring the case. We could try and persuade him to bring a claim." So there we have the advice being given that it might be better to try and persuade Mr Taylor to do it. If we go over to page 13, at the top of that page it says: "JCP said he did not have instructions but he could see that Gordon Taylor might think he could not be bothered. If we say to him you are in a better position to make a complaint and NGN will contribute to funding your representation of this it might well assist him. It might make Taylor more persuadable." So it seems, doesn't it, that there was a willingness to encourage Mr Taylor by assisting him with costs?
A. News Group Newspapers wanted to pay for a client to sue me, even though the client hadn't proposed to sue me.
Q. Could we now go to the letter which is at page 18 of the bundle.
A. Can I just deal with one point out of that conference?
Q. Yes, please do.
A. Leading counsel said that I was a wide boy, that he'd met me. He'd never met me. I've never spoken to him. There are other Mark Lewises in the profession so it's possible that one of them might be a wide boy, but I do think it's out of order for him to express an opinion about me without having met me or discussed it. This is a man who's written the guide to the professional conduct for my profession. It seems he hasn't read it, but he really ought to know that if he's going to say something, he should back it up with a fact, and really, he ought to apologise to me for expressing an opinion because he had no right to do that.
Q. I think that's a matter which is in your witness statement, isn't it?
A. Yes.
Q. Looking at page 18, now, of the bundle, it's a letter from 7 September 2011 from Farrers to Linklaters. The part of the letter I'd like to take you to is on the next page, page 19. It's paragraph 5. It says and this is essentially a paragraph in which Farrers are explaining in 2011 their take on events in 2010 which we've just looked at. It says: "The reason for this inquiry stemmed from the suspicion that Mr Lewis and Ms Harris were exchanging highly confidential information gained from acting for claimants (and Mr Taylor in particular) in cases against NGN in order to bring further actions against NGN by other potential claimants. While in hindsight the relevance of the results of such enquiries may be open to challenge, we are satisfied that there were legitimate concerns: apart from the issue regarding the possible exchange of confidential information, it was known that Mr Taylor was sufficiently concerned about the conduct of his previous law firm and Mr Lewis that he had instructed new solicitors to make a complaint to the SRA." What I'd like to do is ask you for your reaction to that justification.
A. I think firstly that that is an ex post facto justification in 2011 to explain why the rules had been broken, because there was no probative value whatsoever in the inquiry that was being made by them. They were looking into my private life in a way that had no relevance whatsoever. It's impossible to think of any relevance that could be determined from one answer or another to what they were looking at as to whether or not there had been an exchange of information, of confidential information between Charlotte Harris and me. The sad thing is if they'd have bothered to look at the court records and things that were said in the open court, they would have realised that they were wasting their money anyway, making enquiries, but they did. And when you looked earlier, when you talked about two different reports, the Tectrix report commissioned by Farrers and the other report instigated by a journalist, you have the in-house lawyer Tom Crone knowing full well that the journalist had commissioned surveillance, Farrers saying that Julian Pike at Farrers saying that they don't need to get surveillance because they've sort of already got it, and then Julian Pike speaking to the journalist to compare notes about this. Now, ordinarily, a good, honest, proper solicitor, when told that such and such, a client see, one has the journalist involved is someone who was involved in the hacking of a phone of a client of mine that I was acting for, Nicola Phillips. His name is on various documents. When a witness was looking at the lives of the lawyer acting against him, then you would have thought that a firm of solicitors, not least Farrer Co, and not least a barrister, Tom Crone, would turn around to the journalist and say, "No, you mustn't do that, you're tampering with evidence here, you're into very risky territory". Instead of doing that, they joined in and wanted to compare notes between their own report and what he'd obtained. Diabolical.
Q. The final document that I would like to take you to, Mr Lewis, is the one right at the start of the exhibit at page 1. As Mr Davies rightly pointed out earlier, we have to keep in mind the fact that we don't at this stage know who produced this document.
A. I'm tempted to say it was from the Star, but it was nothing it really isn't from the Star so don't suggest that, but it has so many factual inaccuracies LORD JUSTICE LEVESON Be extremely careful what you say. I recognise that you have absolute privilege, but I am absolutely concerned not to prejudice any potential investigation
A. No, I sorry, sir, I wasn't suggesting that it was. It was just that because there are so many factual inaccuracies LORD JUSTICE LEVESON Well, cracking jokes is a mistake, too.
A. I apologise. LORD JUSTICE LEVESON As I tried to explain to Mr McMullan yesterday. MR BARR The first point that I'd like to take you to in this report is on the first page. Could we go to the bottom of the page, please. There's a summary about the lawyers. It says, first sentence: "The phone hacking story has been propagated most effectively not by the police or journalists but by civil lawyers." And then picking up the last three lines of that same paragraph: "It is the lawyers and the information they uncovered through the civil actions they helped bring which ensured phone hacking became such a damaging scandal for News International." Reading on into the next paragraph: "At the heart of this have been three solicitors: Mark Lewis, Charlotte Harris and Mark Thomson." It then goes on to name others before returning to you at the end of the paragraph and reading: "These are the three who have driven the process." So whoever wrote this document seemed to think that you were one of the three solicitors who was having perhaps the most impact.
A. Maybe. It may be said they thought that. I think there obviously were other people who were very much involved.
Q. If we go now to page 5, please LORD JUSTICE LEVESON Sorry. MR BARR Top of the page, page 5, under the heading "News of the World strategy", to put this in context, it's right to say, isn't it, that one description of this document is it's a dossier about you and Charlotte Harris and Mark Thomson?
A. Yes.
Q. And it says under this heading, "News of the World strategy": "The News of the World is aware of these facts and is planning to try to put pressure back on the solicitors by revealing these facts and by linking their political affiliations and career benefits from the cases. They plan to do this publicly and through discrete lobbying."
A. Can I just make some points on the pages that you've been through?
Q. Please do.
A. There are things that they have suggested about me that are just wrong as a factual basis, so the facts that they were planning to rely on, the fact that I have a chip on my shoulder because I went to a secondary modern; I didn't go to a secondary modern, I went to a private school, which sort of ruins the story, albeit it's a better story in some respects, but it's just not true. And certain of the issues that they've that my political affiliations; I've not been affiliated to any political party at that time. I am a classic floating voter/non-voter. I have a strong interest in politics, but I don't always vote for the same party, whatever. So it was almost interesting to read about me. I mean, that's why there is a grain of truth in this story that whoever's prepared this dossier has bothered to do some research, because my school was a grammar school before it became a fee-paying school the year before I went, so somebody knew that there had been a change of status in my school, so someone had done some research in trying to find the story, but they found the wrong story.
Q. So would it appear that what we have is a document suggesting that personal details which have been dug up are to be used against you and your fellow solicitors and, you would say, not only that but the details were very largely wrong?
A. Certainly. Maybe the strategy was correct, but the facts that it was based upon were just wrong.
Q. Can I move now to a completely separate matter, and this is a matter I've been asked to raise with you by another core participant. It concerns the settlement of the Dowlers' case and in particular the costs involved in that case. Can you recall approximately the date of the settlement with News International?
A. I can't remember the exact date. I can tell you the circumstances of the deal, because it one presumes that this must be there was an article, as I alluded to last time, that went on a website from Associated through Daily Mail who said I was holding out for more, and in fact the case had the Dowler case had been settled much earlier than that. What had happened was that the negotiations that we'd put forward, the Dowler family did not want damages, and I understand why, in respect of Milly. They wanted a charitable donation in respect of Milly, because it would be wrong to profit in any way, to inherit money from the daughter who'd been murdered. There were negotiations that took place that Rupert Murdoch wanted to create a Rupert Murdoch fund for children to go to private schools, and the Dowler family wanted the donation from him to go to funds and charities which were to do with Milly's disappearance or Milly's life, so it was like the swimming pool that she favoured, charities for missing people, and charities for cancer research and brain tumour research because her godfather had died as a young man from a brain tumour. The negotiations had started with an offer of ?1.5 million which had been no charitable donation at all and just 1.5 million LORD JUSTICE LEVESON Is it appropriate for you to be revealing this, Mr Lewis?
A. The whole settle I have a difficulty because the whole settlement is I can see the press will say that he wouldn't talk about what had happened LORD JUSTICE LEVESON Yes, I'm just considering about the privilege you owe the confidentiality you owe the Dowlers. I'm not stopping you, I'm raising the question so that you can think about it before you go on. It may be, you see, that this detail is not central to what I have to think about, and I'm just concerned that you think about your professional obligation. That's all. It's up to you.
A. I'd rather not discuss the negotiations, save that the total sum has been put forward. There wasn't any you know, I've been asked about the costs negotiations. There wasn't a costs negotiation with the newspaper. There was a global sum that was paid, et cetera, that that's how MR BARR Mr Lewis, if there's any doubt about this, I don't want you to say any more about the facts of that case. I think the point to do with CFAs is to give the Inquiry some indication of the sorts of sums that might be involved, and I can do that by asking you quite separate questions. Could you give us some idea of what a partner in a media law firm charges by way of hourly rate?
A. Well, my hourly rate is ?390 an hour. However, the idea that you get that on a CFA is you only find out what you're getting at the end. So if you take, for example, the NMT and Wilmshurst case where I acted on a CFA, gave two years of my life to doing that probably 70 or 80 per cent of the time, I think I earned about ?25,000 a year from doing that case because it was more important and bigger to defend a cardiologist who was being sued by a libel bully(?), to act for the defendants of who were being sued by Sheffield Wednesday over what they'd blogged on a website. Again I had to stand up. I mean, I can hand on heart say that one would earn more money in private practice being paid privately for doing work, and what one has to understand when looking at CFAs is that every lawyer, not just me, you get lots of people who phone up and ask for advice free of charge about all sorts of pursuing cases and we can't charge for them and we take on cases that we are allowed an uplift on, which sort of balances out over a year to compensate us. It's fair to say that lawyers are better paid than nurses and other people. There might be a reason that we are and it might be that there's also a problem with the system, but the fact is, if you talk about the Dowlers, again you have Sally Dowler who came in to me and at the first meeting said, "We cannot afford a lawyer", and I I mean, I have a record of saying to people, "I'll act for you anyway" because that's just what I do because sometimes you have to do that, but I can't I can't insure you if you lose the case and have to pay the other side. Nobody knew at the time how it was going to end up. We did not know that the News of the World was going to end up closing down and there would be massive negotiations. For all we know, there could have been a total defence of the claim, et cetera, and they could have lost the claim, they could have pursued a claim and News of the World could have taken an issue saying, "Well, Milly Dowler does not have a claim at all because she's dead and therefore has no right of privacy". It's a legal argument. Fortunately, thankfully, people on the other side had the good grace not to run that argument. But it's the sort of thing that you just don't know what's going to come forward. You don't know that and the fact that the Dowler family themselves, Bob and Sally and Gemma Dowler have claims, the claim is still based on an inference. You have Glenn Mulcaire making notes of their numbers, et cetera, but there's no actual evidence to show a real call or that something that was taken from that call was used. You have to establish the inferences and be able to present the case. In fact there's not been a judicial decision yet on any phone hacking claim to say that possibly Sienna Miller there was an admission because of the way that proceeded, and I think there might have been
Q. Could I just attempt to summarise? You can tell me if I'm being fair to you here. Are you trying to say that any solicitor who takes on a CFA is taking a risk with costs?
A. There is always a risk, no matter how good the case is, and you do not know how you're going to get paid or what you're going to get paid until the end of the case. You have to win, and even when you win you don't know what hourly rate a court is going to if you read the newspapers, the newspapers suggest that you get a CFA and it's a licence to print money, but actually you only get paid if you win. So the newspaper could, if they so wished, either not defame or throw their hand in early or choose to fight, and then if they lose, oddly enough, I think the Telegraph uses CFAs, but other newspapers pay lawyers to fight their cases. If they didn't do that, the uplift on cases would be reduced, the amount extra that you charge which is awarded by a court follows the further on that you go, but sometimes you could waste a lot of time pursuing a case and not get paid at all.
Q. And a final question: are you effectively saying to us that the CFA system involves a certain amount of swings and roundabouts?
A. There is a certain amount of that. Every lawyer will tell you they've lost cases or spent time in pursuing CFA cases that got nowhere and got no payment for them, including the ones that you win on and find that the other side can't afford to necessarily pay you. There might be a better system, but at the moment there isn't any other system that applies. There's no legal aid that people can use to pursue claims. So what you have is effectively a CFA that balances the position because whether you're defending a claim or defending your right by pursuing a claim, you can afford a lawyer to pursue that and actually that's likely to be outlawed effectively because there's an abolition being proposed of the recovery of insurance premiums. So if I'd said to a client, look, if you don't if you want to pursue this claim you can do, but your insurance premium is going to be substantial, that's an insurance premium that has nothing to do with lawyers, lawyers don't work out what the premium is and that premium is going to be in excess of the damages awarded in most libel cases, most privacy cases, the people if you saw me as a client and said you might win ?25,000 or ?30,000 in your libel claim or your privacy claim, either way, you're going to have to pay for an insurance policy which could be ?50,000, but at least you won't have to so you'll clear your reputation or your privacy will be protected, but by the way, you'll only lose ?20,000. People wouldn't bother to do that. It's all actual access to justice. It's nothing else. LORD JUSTICE LEVESON I think we're moving slightly away from where I am, because the one thing that I can't do is affect what is presently going through Parliament.
A. Yes, sir. Simply they give me a soap box to stand on so I stood on it. LORD JUSTICE LEVESON I didn't stop you immediately, but now I'll ask you to stand off it. Is there anything else? MR BARR No, thank you. LORD JUSTICE LEVESON Mr Lewis, thank you very much. And I didn't stop you. Discussion MR DAVIES Could I just say something in the light of Mr Lewis's evidence very briefly? LORD JUSTICE LEVESON Yes. MR DAVIES First of all, with regard to Farrer Co, the only report they commissioned, that by Tectrix, was a desktop exercise based on publicly available material. LORD JUSTICE LEVESON Thank you. MR DAVIES It did not involve any surveillance. Secondly, the physical and video surveillance which Mr Lewis has referred to was commissioned by the News of the World, and News International apologises to Mr Lewis and his family for that. He raises in his statement a point which didn't come out in his oral evidence, a question as to whether or not his phone had been hacked. We are not aware of any evidence that Mr Lewis's phone has been hacked. Apart from that, Mr Lewis's statement and indeed his oral evidence, I think it's fair to say, contains a number of expressions of opinion and comment and we don't accept those. LORD JUSTICE LEVESON No, I understand that, but MR DAVIES Yes. LORD JUSTICE LEVESON I didn't feel it appropriate to stop them. MR DAVIES No, no, not at all. LORD JUSTICE LEVESON No, I understand. Thank you very much indeed. Thank you, Mr Luce. What are we doing now, Mr Jay? MR JAY Sir, it looks like a three-day week. LORD JUSTICE LEVESON Actually, Mr Caplan will be delighted about that because he was complaining that last week and this week made eight days, whereas it's actually only going to make seven. MR JAY Yes. LORD JUSTICE LEVESON Yes, all right. MR JAY Mr Staines has replied whether it's an amicable reply, I don't know yet to our section 21 notice. At the moment I think his summonsed to appear before you tomorrow afternoon. He wishes to make submissions about the restriction order you've made, but I think he's also seeking funding from the Inquiry in order to do that, if I've correctly understood him. I can imagine what your response might be to that suggestion. LORD JUSTICE LEVESON Let's take this in turn. Mr Staines do we have his response? MR JAY It's been skim-read by me, but not properly ingested yet. LORD JUSTICE LEVESON As regards arguing about the restriction notice, I'd need to know whether somebody I think probably a member of the public may be able to argue about it on Scott v Scott grounds. MR JAY Yes. LORD JUSTICE LEVESON Because there's a rather interesting decision in the Court of Appeal in a case called GIO, which does allow members of the public to object to things that are documents put before the court but then not seen by the public, but I'm not sure that he would fall within the criteria of those who could be funded to argue that. MR JAY I'm almost certain, sir, that he wouldn't qualify. I don't think it's right that I summarise what he's saying in his section 21 statement. LORD JUSTICE LEVESON All right, but the answer is that we're not going to get that done for tomorrow? MR JAY No. LORD JUSTICE LEVESON So I will discharge the requirement that he attend to give evidence tomorrow and I will ask that he make such application as he wishes to make, although in the meantime consideration can be given to whether, A, it is lawful or, B, it is appropriate that he receive public funding to support that application. MR JAY Yes. LORD JUSTICE LEVESON Is that sufficient for the present purposes? MR JAY It is. LORD JUSTICE LEVESON Thank you. Is there anything else? MR JAY Sir, the agenda for next week, or the timetable for next week. On Monday the witnesses will be Mr Francis Aldhouse, Charlotte Harris, Peter Burden. Their statements have been enable available to the core participants, as indeed have Tuesday's witnesses, who are Stephen Nott, Chris Atkins and David Leigh. Wednesday the 7th we are taking off. LORD JUSTICE LEVESON Yes. MR JAY On Thursday there is an academics day. We'll be calling up to seven academics to assist the Inquiry. LORD JUSTICE LEVESON That will be quite hard work. MR JAY How many we call, I think, is being put under or given active consideration. LORD JUSTICE LEVESON I have no problem about them being I think the phrase in Australia is "hot-tubbed". It is. Don't laugh. In other words, that some of them can they don't all need to be individual, they can be together. MR JAY We were thinking along those lines. Exactly how this is going to be orchestrated is still being considered, but that seems the most appropriate way, some sort of interactive academics day. LORD JUSTICE LEVESON Correct. MR JAY On Friday it's going to be less interactive, because we're going to call Mr Thomas. LORD JUSTICE LEVESON So we're doing four days next week, so Mr Caplan gets his way, seven days but seven days week by week. So any set of weeks, one only has seven days. MR JAY Yes. LORD JUSTICE LEVESON I don't promise to keep that. It's seven days per fortnight at the moment, but I'm not bound by that. MR JAY Indeed, the week commencing 12 December is going to be a four-day week. LORD JUSTICE LEVESON Oh, all right. So I shouldn't have made the crack. MR JAY Only because the following week, that commencing 19 December, obviously the last week before Christmas, is perforce a three-day week. 12 December is largely a News International week, if I can so describe it. LORD JUSTICE LEVESON All right. Thank you very much. Has everybody got that? Thank you very much. (4.47 pm)


Gave statements at the hearings on 23 November 2011 (AM) and 30 November 2011 (PM) ; and submitted 2 pieces of evidence
Gave statements at the hearings on 30 November 2011 (PM) and 05 December 2011 (AM) ; and submitted 3 pieces of evidence


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