Afternoon Hearing on 09 December 2011

Richard Thomas gave a statement at this hearing

Hearing Transcript

(2.00 pm) LORD JUSTICE LEVESON Yes, Mr Jay. MR JAY Thank you. Mr Thomas, before we look at RJT54, may I ask you this general question: did your office consider contacting any of the targets or victims of those in Mr Whittamore's books?
A. My understanding is that about 30 or 40 were approached, primarily with a view to giving evidence about the circumstances where their personal data had been obtained, and I recall that I think most of these were what you might call celebrities, but not all. Some were private individuals in private life. I don't know if you want to name names
Q. No.
A. but two or three of the names still stay in my mind. I was told that they'd been visited and that witness statements had been obtained, and indeed some of those later, three years later, came forward when we produced our reports to give their story as to how they had been targeted. But what we did not do, which I think is implied in your question, is go to all victims. Can I say this: first of all, there were obviously a large number. It's only now saying this with hindsight there was no discussion, but you have to be very, very careful when you approach victims. If to give you an example, if a letter had gone from my office saying, "Dear Mr so-and-so, we think you've been targeted by a private investigator", if his wife or his family saw that letter, that could have raised all sorts of questions. We were an office which was very, very concerned with personal privacy, and so if I'm being asked about that, I would say if you are going to approach victims, you have to do so very carefully indeed.
Q. Okay. May I ask you, please, now about RJT54, which is your contemporaneous note. At the start, it says: "Good relationship. Confidential meeting. "'Independent' and mean it. From newspapers and politicians."
A. "From".
Q. "From newspapers and politicians."
A. You have to understand this is my hastily written handwritten note during the meeting.
Q. Of course.
A. But I can recognise my own handwriting. I can't always recognise exactly what I was trying to say or who said the various things. LORD JUSTICE LEVESON But who was independent? MR JAY Yes.
A. I think we were both very proud of independence, I'm sure, but I would have stressed, and always do, our independence, but I suspect Christopher Meyer was also saying that he felt independent, but I can't be sure to whom that word is attributed.
Q. Okay.
A. Probably to him, because it says "from newspapers and politicians".
Q. Fair enough. I won't deal with the contempt part and the Attorney General: "Can't undermine obligation to obey law." Is that right?
A. Yes.
Q. And then in inverted commas: "Not our role to enforce law, not arm of ICO." That must be Sir Christopher speaking; is that right?
A. Yes, I'm sure it was.
Q. He's making the point there that he's not really a regulator, isn't he?
A. He's not a prosecutor to enforce the criminal law, but this was a point that came out then, I think, and certainly came out in subsequent conversations with the code committee, the PCC and others, and the line and it's even now in their evidence to this Inquiry. The line is: "We can't deal with these matters because they're covered by the criminal law", and I just did not buy that line. If you look at the code of the Editors' Code, there are various parts of that which overlap with the law, describe legal requirements and other terms. The section on the code which deals with subterfuge, some of that addresses matters which would be illegal under the Regulation of Investigatory Powers Act. Some of that financial information would be illegal under the Financial Services and Markets Act. So certainly then on many occasions I challenged this line: "We can't deal with these matters because they're covered by the law already." There's more than one way to skin the cat.
Q. But was Sir Christopher telling you, rightly or wrongly, the PCC is not going to enforce the law because this is part of the criminal law, which it is the ICO's responsibility to enforce? Is that what he's trying to
A. Well, lower down the page, if you see RT, my note: "Not expecting PCC to investigate or take action against 400 journalists." So I was quite clear, that wasn't the reason I was there to see him. I was there because I wanted the practices put to a halt for the future. That was my objective. I wasn't asking him to investigate. This was evidence which he might have used in general terms to condemn what was going on, but I did not expect, and nor did he expect, that we were going to hand over the case and let him somehow take action against those journalists implicated in the Motorman affair.
Q. Absolutely. Can we see what he was offering to do, if anything? You have a little box around the next bit: "Code can't deal with unidentified victims." And that feeds into a point you make later on. Is he saying to you there, or did you understand him to be saying to you: "This is outside the code because, as we, the PCC, don't know who the victims are, we can't even begin to take any steps under the code"?
A. Let me just pause for a moment. It was a meeting that does stick in my mind. At the meeting, I was there with Phil Jones, who was one of the assistant commissioners, and he was there with Guy Black, who was then, I think, the director of the PCC, and I've never had a meeting where the atmosphere changed so rapidly halfway through the meeting. The first half of the meeting, I think they just didn't quite know why we were there, didn't really see very much seriousness, but the whole as we started just in general terms to tell about the nature and the scale of the activities, going back to that speaking note
Q. Yes.
A. which you asked me about before lunch, and I shared some of that with him I've never seen a meeting where the whole the atmosphere changed so fast and they took us very seriously in the second half of the meeting, so much so that they asked us to go back in again about ten days later for a second meeting. So I just want to get that point across, you know, and this perhaps is reflected a bit in my handwritten notes when he talks about not being surprised but maybe surprised at the scale of the activity, it being a watershed, the scale of the problem, endemic, and that I hope is reflected in the short email which I sent soon after that meeting back to the office.
Q. Yes, and you stopped at "knowledge of proprietors". What did you take that to mean?
A. I don't know. Sorry, yes, I could have gone onto that. I don't know whether he or me or anyone was saying the proprietors know about it or didn't know about it. I can't help you on that. That's simply my note and I don't recall one way or the other what that note meant, but I think those are the two possible interpretations: either the proprietors knew all about it, or they had no knowledge of it. I simply don't know. I'm not suggesting either way what that note means.
Q. Then it says, does it: "Constructive 'fellow regulators'."
A. Yes, that was the atmosphere certainly in the second half of the meeting, that we had to work together to tackle this problem.
Q. Is that the term he used there? It's in inverted commas?
A. Somebody used that phrase, me or him, I don't know. I think it's reflected in my email.
Q. We'll come to the email?
A. Well
Q. Tab 11, RJT6.
A. No, it's yes, there is that phrase does appear in the emails. Perhaps we'll come onto that, but I actually said: "But they seemed to be increasingly ready, as the meeting progressed, to work with us as 'fellow regulators' with a strategic response."
Q. You made it clear that you weren't expecting them to take action against 400 journalists. You were looking for willingness to adopt a general solution which had two limbs: condemnation and general censure; is that right?
A. Yes.
Q. And code amendment?
A. And that entirely reflects the speaking note which I took along with me to the meeting.
Q. At the end: "Maybe problems. Dialogue over details. Constructive spirit." But in the result, the code amendment didn't take place until 2007, did it?
A. You are jumping ahead. Do you want to go through the story sequentially or
Q. We will, but just so that we
A. There was no code amendment, as I understand it, until least 2007. I think there some detailed changes were made.
Q. Did you ever get the condemnation and general censure out of the PCC in your view?
A. Not in the terms I was hoping. I wanted loud, strident condemnation. It goes back to the point which the chairman asked me about: are they regulators or what are they? And I certainly expected from my experience, a regulator is someone who tries to put a stop to bad practice, to unacceptable practice, and I had hoped that at the very least, they would be very loud and noisy in saying, "This is absolutely unacceptable." What we got was a speech from his Christopher Meyer, and that is exhibited. He did mention it in his speech, and I think there's some indication from the correspondence there were some exchanges on it, but it was nothing like the and I said this to him on several occasions directly and it's recorded there was not the sort of loud condemnation that I had originally expected.
Q. Yes.
A. Having said that, something did have an effect upon the media, as far as I can see.
Q. The email says at RJT6, 00364, in the main paragraph: "This might lead to some sort of general condemnation, although there are some difficulties in amendment to the code." So your expectations weren't that high, were they?
A. Well, you're reading into every email a sort of precise legal interpretation and this was, you know, done at 5 o'clock that evening from my home, I expect. I was fairly optimistic because the meeting the atmosphere had changed in the second half and he had said, "Come back and see me again in a couple of weeks' time."
Q. Yes.
A. So he wasn't giving commitments, no, and I think that language, you know, might lead to it, what I was looking for, but I couldn't say to anybody that we had secured a firm commitment on those lines.
Q. The second meeting was on 2 December, I think; is that correct?
A. Yes, and there I don't think anyone's been able to find any notes of that meeting at all, I'm afraid.
Q. No.
A. I don't have the same vivid memory of the first meeting, but certainly the very general terms was that, you know: "Yes, you've raised an issue. We need to look at this. You know, we need to look at it." I'm not saying they were committing themselves to any particular course of action.
Q. No, nothing much happens then for a whole year. If we go to RJT7
A. No, I think quite a lot wait a minute. Yes
A. In the first half of 2004, Phil Jones, who I mentioned, and his team were exchanging emails with the PCC and were trying to draft this guidance note and we had high hopes that, you know, that would produce something worthwhile, and that seemed to sort of grind to a halt in April of 2004 and I only have the documentary material on that. I can't speak personally to that. But I came back on the scene vis-a-vis the PCC in December. I'd had lunch with Christopher Meyer. At that lunch, I discovered that the guidance note had not progressed and that his language, I think, was "run into the sand", and we revived it
Q. Just look at the document. There is reference to the
A. Yes. It's RJT7.
Q. Yes. 00365.
A. Yes.
Q. 8 December 2004: "I was, however, extremely concerned to hear that the advice note that Tim had drafted on Data Protection Act, journalism and the PCC code had run into the sand. You explained that media lawyers had thought the advice had oversimplified the position. I'm very disappointed to hear this." Then the next paragraph: "My concern is that unless the attention of journalists and editors is drawn to the real possibility of committing criminal offences under the Act, there's a real risk that the all too widespread practice of paying to obtain confidential information about people in the public eye will continue unabated." So we'd reached the position where one practical proposal had run into the sand and the PCC had done nothing. That's true, isn't it?
A. Well, that's putting it very sharply. Clearly both sides, my team and their team, were trying to put together a guidance note, but it hadn't materialised by the end of 2004.
Q. But a whole year had elapsed. These were potentially very serious matters. The PCC hadn't given the general censure or condemnation which you indicated was at least a possibility and well, looking to the other side of the coin, it was pretty clear to you that they weren't going to help you much. Isn't that true?
A. Again, that's putting it too strongly. I didn't lose all faith. The evidence shows that I went back a number of times to the PCC throughout 2005, 2006 and 2007, and tried to keep engage their interest with it. But it is true to say that I thought their response was less strident and I think I used the word "disappointing" more than once in this context. I thought they could and should have done more.
Q. Thank you. Sir Christopher
A. Although he kept saying to me: "What more should we do?"
Q. Sir Christopher writes to you on 5 December, under tab 13, RJT8. LORD JUSTICE LEVESON Hang on, that's before this letter, is it? MR JAY The following week. LORD JUSTICE LEVESON No, this is 8 December. MR JAY Yes, and then tab 13 is did I say the 5th? I meant the 15th. LORD JUSTICE LEVESON Yes, because before we leave 8 December, you again repeat the fact that you've perceive the PCC as a regulator: "As you know, I am strongly of the view that the PCC and the principles of self-regulation will be shown in a poor light."
A. Yes, absolutely. LORD JUSTICE LEVESON Yes.
A. And I see from the correspondence they've tabled that they took it quite seriously and said to the various media organisations: "Look, he's getting aggressive here", if I can paraphrase. LORD JUSTICE LEVESON 15 December you wanted, Mr Jay? MR JAY Yes. LORD JUSTICE LEVESON 367? MR JAY 367. Says: "I've asked Tim to resurrect the guidance note and to consult Phil Jones and to take final comments from the industry before putting the draft to the commission for approval in February. If goes without saying the Commission cannot condone criminal behaviour and if the note raises awarenesses about what journalists must do to comply with the Act, then that will be most welcome." Did anything further happen? There are no documents which indicate whether they did or not.
A. I think that particular guidance note did surface, I think I have to go back and check the records, but I believe that the note was made public by the PCC probably in the spring of 2005 and I think it was substantially in the shape that we had agreed to. It was a useful guidance note but I suppose I was a little concerned that it buried the Section 55 warnings into a wider context of talking about the Data Protection Act and its application of the media more generally, and I think even now I would say that it was a shame it didn't just focus on Section 55 in the way that our own note, which we produced, I think, in 2006 or 2007, what we call a good practice note, that was a very, very clear one and a half pager as to how the press should take seriously Section 55. And I had hoped, because I thought it would have greater authority, that something like that would have come from the PCC at some stage.
Q. What we do see happening at RJT9, if I can take this reasonably economically
A. Yes.
Q. is you send Sir Christopher, quite rightly, a copy of your report on 10 May 2006, and you explain to him
A. He was one of about a hundred people at that stage.
Q. Of course.
A. It was more a standard letter.
Q. His reply, though, under our tab 17, RJT 12
A. Yes.
Q. We can draw our own inferences from this: "Thank you for sending me a copy of your report." This is page 00378. "It was an interesting read. I'm sending you a copy of our annual report which we've just published, along with the text of a speech I gave last night in which I refer to your remarks about the PCC. I think that as a next step it would be helpful if we organised a meeting so that we can explore what more it is that you think the PCC can do. You will appreciate that your call for us to act came rather out of the blue. We have no material to work with other than what you put into the public domain in your report." What did you think of that at the time, Mr Thomas? Speaking frankly, as I'm sure you will?
A. I can't tell you what I thought at the time. I can tell you what I think now, which is probably the same as I thought at the time.
Q. What's that?
A. I thought "interesting read" was a fairly strong understatement. I thought we put a lot of work in getting that report put together. I had shared material with him beforehand. The report was not directed just at the press, but nevertheless it was fairly emphatic in its content and its style. We were proud of that report. It was a very special report, the first time ever we'd gone to Parliament, and I felt that to describe it merely as "an interesting read" was a considerable understatement. I'm probably guilty of the same offence myself now. And I think to say it "came out of the blue" was surprising because we had had the two meetings with him and we had collaborated at official level to try and get a guidance note together, and I think also that is perhaps also an indication of the line coming back all the time: "What do you want us to do? Tell us exactly what to do." My line was: "Well, you are the self-regulators. You're the ones who are supposed to be working out what is needed to stop the press getting into unacceptable territory. It's not my job to tell you what your job it." I had some ideas and I had some thoughts and I was not slow to share some of those, but I was a little surprised by the letter. But my style was always to try and keep on the right side of people and to carry on that constructive dialogue, so I didn't write back and say, "What a dreadful letter."
Q. You were doing the best with someone who really was making it clear he wasn't going to help much.
A. Well, he gave me his speech and at the end of his speech, there's two paragraphs. The speech was on 25 May, only about two weeks after our report had come out, and he mentioned it and I can't quarrel with the wording that's in the speech. Who was there for the speech? I mean, how many people? Was it publicised? Was it really got out to far more people? For all I know, behind the scenes Christopher Meyer was ringing up every editor, every proprietor and saying, "Come on, guys, you really have to change all this together", and maybe he was, but there wasn't much visibility in terms of the PCC condemning the activity.
Q. Of course
A. Having said that again, things did get better from that point onwards.
Q. By this stage, the issue was stale to this extent: that the underlying material in Mr Whittamore's books went back to 2003, much earlier, so the tempo had really been lost, to some extent, hadn't it?
A. Sorry, what had been lost?
Q. The tempo. We were three years after
A. I don't think so, no, because we were bringing or the CPS were bringing the main prosecution. We were waiting for the outcome of that. That wasn't until 2005. Then we got the very clear advice from our counsel that it would not be in the public interest for us to pursue the matter any further. We're now into the autumn of 2005 and my timeline, which is attached to my first witness statement, indicates I attended at least two, maybe three meetings and that led to the first steps being taken to produce the report.
Q. Yes, okay.
A. And the report was drafted primarily in-house. It then went outhouse for a skilled writer to improve this presentation of the report, and we published that in May.
Q. Okay.
A. So I don't say I don't accept at all the tempo slowed down. There wasn't that much direct contact with the PCC, but we were frankly outraged and very disappointed at the result of the case and I was very clearly focused on: "We can't let people get away with this." LORD JUSTICE LEVESON It's interesting, if one looks at the speech that Sir Christopher gave and in case we don't come back to this particular speech, it's page 379. At page 380: "Here I return to a familiar theme of the PCC. We make an enormous effort to preach the gospel of self-regulation around the UK." Then at 381: "It's in the industry's own best interests to bolster self-regulation in this way." And then finally, 388: "As I look forward " This is discussing with you and your concerns about the practice of offering money for confidential information. "I look forward to discussions with Mr Thomas about what more he thinks the PCC can do about this within the self-regulatory framework." So if you believed they were regulators, at least you had some support for that view.
A. Yes, indeed, and if I could just, chairman, point out the last sentence of that paragraph: "But clearly it would not be viable simply to duplicate the criminal law in the code of practice." That was the line I was getting all the time: "We can't deal with this because it's part of the criminal law." And I have to repeat, I just did not if buy that because not only
Q. We understand, Mr Thomas
A. It's actually an important point because I dealt a lot with the Advertising Standards Authority. A lot of their code covered matters which would be illegal under the Trade Descriptions Act.
Q. We've got that point and you're 100 per cent right
A. Thank you, but I just need to put that into this wider context. Thank you.
Q. I just want to move this on a little bit, aware as I am of what the agenda is for the rest of the afternoon. RJT13, Mr Thomas. There was a meeting on 13 July 2006. It's under our tab 18, 00389.
A. Yes, this followed the publication of our first report.
Q. You see, under "Key issues", a third of the way down: "PCC's response." And then: "Respective roles and responsibilities of the PCC and the Code of Practice Committee of Editors." Specifics. You set out the background of the report, in particular the intention to target the middlemen involved in the illegal trade in confidential information, while at the same time reducing the demand by raising awareness of the illegal nature of the trade amongst customers, including the press. So that's a neat summary of your overall strategy, isn't it?
A. Yes.
Q. You express some disappointment that the PCC had not been more forthright in its condemnation of the activity. Am I right in saying that there had been no forthright condemnation of the activity by the PCC at all, from what we've seen in that speech, arguably?
A. That speech I don't personally have any knowledge, but perhaps that's a question for the PCC.
Q. What Sir Christopher says: explained the PCC stance has consistently been that reporters must stay within the law and that he makes this point regularly on public platforms but the PCC is not able to act as a general regulator [see that?]. He believes that what is needed is a strong stance from the ICO, including prosecutions. He queried what more the PCC could do." So he's telling you yet again he's not going to do anything. Isn't that true?
A. It comes close to the truth, but I don't know what was in his mind.
Q. At the bottom of the page he explained: "The PCC website is focused at individuals, not at journalists, which is consistent with their role, which is not that of general regulator." Then you refer in the next bullet point to some guidance on Section 55 offences. At the bottom of the page: if the Code of Practice Committee of Editors is to be engaged by the ICO and the PCC to discuss the possibility of changes to the code and production of guidance." So the upshot of
A. Can I just interject there?
Q. Yes, please do.
A. Because my annotation for this Inquiry has got on the side here "fobbed off to committee", and frankly, that's how it felt, that we'd been told we'd come to the wrong place. If you want the code changed, you have to go to the committee of editors. I understand the distinction between the committee and the PCC, that the PCC is the public face of these arrangements, but basically he was telling me we'd come to the wrong place. "If you want the code changed, go and see the committee of editors", and that's why my subsequent letter of 19 July, RJT14, to Ian Beales who I had never heard of before, but he was the secretary of the committee, tucked away in Gloucestershire. I had to write to him there, and as I say, it did feel somewhat that they weren't willing to take this matter on within the PCC, so we had to go and deal with the Code Committee directly, which we did.
Q. An important part of the general policy considerations which you refer to, in, I think, counsel's advice of 22 December 2003, "Let the PCC get its house in order" you may or may not have known ex-ante what might have happened, but looking back on it, nothing much did happen with the PCC, did it?
A. Two points. Yet again, I need to come back to this word "policy". It was not an ideological strategic policy; it was a matter of practicality. This was where the office was going to go at that time. We thought and had some hopes that the PCC would be a better way of addressing the problem than anything to do with suing the prosecutions, which we were, at that time, recognising was going to be very expensive and demanding for the office. Now, with hindsight, I think I would have been more aggressive and more assertive with the PCC and with the Code at the outset, and they did disappoint me, as I said, in terms of their response. But nevertheless, I do recognise that, through whatever means, it appears to be the case that the message was getting out, and certainly the correspondence I've seen more recently from the PCC does have some indication that they were exchanging messages with the various players in the media industry, the various associations and societies, saying, "Basically, Thomas isn't going away. He's making a noise on this thing. We have to do something." And they quoted the sentence from my letter which you haven't quoted, which was along the lines that if you don't take this more seriously, it's going to put self-regulation in a very poor light.
Q. We've covered one limb of strategy, if I can describe it in that way, which you pursued. The other limb, of course, is the deployment of Section 52(2), which I'm going to come to in a moment.
A. Mm-hm.
Q. Can I ask you about your mainstream powers which I touched on at the outset: powers under Section 40 to issue enforcement notices, Section 43, I think, assessment notices, and then your general duty under Section 51. Why didn't you consider the use of all or any of those mainstream powers against either the journalists or the data controllers, which of course were the companies who owned the media groups?
A. Well, I think we were using our powers to promote good practice. That was a far more general power, and you know, that was the justification, the rationale the statutory foundation for much of what we did was promoting good practice. I would describe pretty well everything we did in this area as promoting good practice. On your question why didn't we use our formal Section 40 enforcement powers, I can't recall any active discussion or any active consideration of that, but I would now say first of all we didn't serve that many Section 40 notices, probably only two or three in a year, and they were normally preceded by we're under the constraints of the better regulation agenda. We had to serve a draft of a notice before we entered the actual notice as a matter of good regulation. Secondly, I suppose I would say now but I can't say if any of this surfaced at the time everybody knew that to a very large extent the powers of the office were very constrained indeed when it came to dealing with the media. Thirdly, I would say that obviously some consideration was given to this because in the notes that came out last week, there was a meeting in May 26 May 2005 Francis Aldhouse, Phil Taylor and Janet Watowsky(?), who were the two lawyers and I think that was a meeting where there was something about possibility taking enforcement proceedings. It says here: "FGBA mooted enforcement proceedings." So clearly some sort of passing thought was given to it but nothing materialised.
Q. In terms of your general duty under Section 51 to promote the following of good practice by data controllers, you didn't issue any guidance of any sort until after 2006; isn't that right?
A. Well, we're producing guidance all the time but
Q. Relevant to this?
A. On this, I think our good practice note I think it might even have been 2007, but it was certainly after the two reports had been published, so yes, it would have been 2007.
Q. So in terms of your core general duty, nothing specific is done until 2007
A. No, no, no, not at all. I totally resist that.
Q. In relation to journalists
A. Well, because we were publishing these two reports, and that is absolutely not only is it specifically discharging the power, the possibility of presenting a report to Parliament, but also I very much saw it in terms of promoting good practice. I mean, we didn't sit down there every day and say, "How exactly are we going to interpret this section of the Act?" but I would say very strongly indeed that by publishing a report which set out in pretty well full chapter and verse what a wide range of people are doing not just the press but all the other players plus this illegal market of private investigators and tracing agents, drawing attention to that, condemning it in the loudest possible terms and getting as much publicity as we could and that wasn't easy. We got a fair amount in the end. I would say that was promoting good practice, and sending it to a hundred organisations with specific personalised letters saying, "This is not acceptable." So I'm sorry to
Q. No, no, fair point.
A. challenge you so strongly on that, but I would say this is very much promoting good practice.
Q. So part of the reason for exercising the specific, perhaps exceptional power under Section 52(2) is in discharge, you say, of your general powers and duties under Section 51(1); is that right?
A. I'm saying that you take they're both part of the same section. They're both part of this general responsibility of the Commissioner to promote good practice and to make sure everyone understands their responsibilities.
Q. I'm right in saying, though, in answer to my question about Section 40, is this right, that only passing consideration was given to that mainstream enforcement power?
A. That does appear to be the case, yes.
Q. Can I ask you about your purpose in publishing these two reports? You've explained one of the purposes and that's fully understood. Was it also part of your purpose to try and initiate a political debate as to whether the penalties under Section 60 for contraventions of Section 55 should be increased?
A. I think I had quite a long list of objectives by the end of the day, by the time we got to publishing this report. The first objective was to tell the world what was going on. The primary stated objective was to get the recommendations taken seriously, particularly to get the government to increase the penalty, because we felt the penalty was the main problem. But I also felt and I'm not sure this was articulated, but in my own mind the more noise we could make about this, even if not successful in getting the law changed, the more that was likely to have a beneficial result. I wanted to get people on the back foot. And in terms of all the other organisations, all the other sectors where this activity was going on, as our second report documented, it was taken seriously. I mean, a lot of people were going around I almost say in a blind panic, saying, "We have to clean up our act on this." And we had some very, very encouraging letters back from the Law Society, from the Office of Fair Trading, from the Financial Services Authority. We wrote to a lot of people. We took this very seriously indeed. I wanted as much noise, as much action taken as a response to this report, and to that extent I think it was quite successful. But then there was what you call a political campaign I'm not sure "campaign" is the right word, but a political objective to get the law changed because it wasn't just Motorman; it was all the other cases that had gone on for years before. They were documented in our report in annex A of the report. We set out there a large number of cases where we had prosecuted and we had only very low levels of fine and clearly this sort of low potential to impose significant sanctions was not having the deterrent effect which I thought good criminal law should have.
Q. The steps that you took to raise awareness at least in the first instance are covered in paragraph 23 of your first statement, are they not, in 00265?
A. Um
Q. Where you capture the steps that you took.
A. That's a summary there, yes. It's not everything but that highlights the overall strategy and gives some examples, some of which are documented, as to the sort of things I and the office as a whole were doing.
Q. Yes.
A. And, you know, just the fact that we got four select committees I think is actually without precedent. Culture, media, sport, March. Health, March. Justice, December. Home affairs, December. To get four select committees taking evidence from you about this problem, I felt that was a significant and welcome success. And all supported us. All condemned this sort of activity.
Q. And were supporting your plea for raising the criminal
A. Oh, very much so. You'll see from that paragraph I had also gone I'd, you know, raised this at my regular meetings with Lord Falconer. He was very supportive. He said, "We're right behind you. Disgraceful." Again, that comes from my handwritten notes of that meeting. We discussed it regularly with the civil servants at the DCA. I met the Director of Public Prosecutions in person before the report came out and I wanted to get his support for the line I was pursuing. I'd met the chief executive of the NHS electronic records project in the news this week, but that was the largest civil IT project in the world. I got his support. He saw the risks. I went to the Sargasso no, it might have been his predecessor but the meeting of all the Permanent Secretaries from across Whitehall I went to their meeting in February and I covered it in many speeches and I've given some examples in my evidence of some of the speeches where I, if you like, rammed home this message. But just to go back to your point, it was partly promoting good practice and it was partly to try and get the law changed.
Q. In terms of getting the law changed, you pick this up at paragraph 24 of your first statement, 00266. You point out that a DCA consultation paper was issued as early as 24 July 2006, which I think is RJT15 under our tab 24.
A. I regarded this as a major break through. It's the department was not always known for its speediness, but to get a consultation paper published three months after our report came out was extremely welcome, and the government at that time declared a very clear measure of support for the line we were taking and recognised that the remedy did lie in increasing the sanctions.
Q. Largely for reasons of deterrence, I think.
A. Absolutely. I've made no secret to this Inquiry and elsewhere that I was primarily concerned with preventing bad behaviour and the law plays its part in having suitable deterrence. I've said many times and I repeat it now it was never my wish and not my wish to send any journalist to prison. That's not in any way the agenda. I wanted right across the market and the courts to take this seriously in order to deter this sort of activity.
Q. What happened thereafter we can pick up at paragraph 25 of your statement, and in annex B to it, that the bill initially moved very swiftly and smoothly through the House of Commons without any controversy but then, by early 2008, the press were mobilised against it. Is that a fair way of putting it?
A. Well, you've jumped ahead a year.
Q. I have, yes.
A. The consultation paper was July 2006. The bill was introduced into Parliament in the autumn of 2007 and got a second reading this is the criminal justice and immigration bill.
Q. Yes.
A. And it went pretty plain sailing to start with.
Q. Yes.
A. It went through the House of Commons. There was a brief exchange at the committee stage of the House of Commons but no vote. It went to the House of Lords and at that point, and
Q. I'm just trying trying to take this quickly, Mr Thomas. I'm making a point that it all moves swiftly and smoothly until the press mobilise against it in the early part of 2008. Is that, broadly speaking, correct?
A. Yes, I say you know, I was aware from January 2008 onwards that a powerful campaign was being generated against this particular clause, and I was invited to a number of meetings and the nature and the extent of that campaign over the next three or four months became very, very clear to me.
Q. Yes, and it's even clearer from annex B, isn't it, in your statement
A. Yes.
Q. under our tab 00279, where you give a clear and helpful timeline to the events of the winter, really, of 2008.
A. I worked this up during the preparation of my statement, going back to my diaries, because I had electronic diaries at this stage and the notes I had and the materials I was able to look at at the office in August to help this Inquiry, and I've pieced together this timeline and I'm not sure if you're looking at it now but I mean, I recorded there how there was a meeting and I think some people in this room were at that same meeting when I, you know, sat down with the junior minister, Maria Eagle, and both sides put their case and then, if I just take the story up in the February
Q. Just summarise it until we get to March 4. Just take us through it as quick as you can.
A. I had a telephone call from Jack Straw, saying that he might have to pull the clause out of the bill altogether, and the reason given was that he needed to make space for a provision because of the impending prison officers' strike, and I recall registering strong dismay at such a prospect and either saying or implying that the real reason was media pressure. I then had a meeting with Jack Straw in the House of Commons on 21 February and we discussed this matter and I came away believing that the clause was still hanging in the balance but likely to remain. I had a further call, March 3, telling me it was going to be withdrawn altogether. I'd been in Hong Kong the previous week. I'd come back and on March 3, the this call came through saying, "We're going to have is to withdraw the clause, but we will reintroduce it at some later stage", and I recall making a very forceful protest and I wrote to him on 4 March.
Q. You did, and that's RJT39 under our tab 45, 00539. You very strongly register your protest, don't you?
A. Well, I've said many times I a Commissioner has to be independent and seen to be independent, and one doesn't write that sort of letter lightly. But I did feel that it was my duty to put on the record my strong feelings about the matter and my letter of 4 March started by expressing my deep disappointment. And the letter's on the record.
Q. Yes. Then there was a meeting with the Prime Minister at RJT40, under our tab 46, 00542.
A. Yes. The following day I was in London and I got a call that morning saying could I meet the Prime Minister, Gordon Brown, that afternoon. I was able to do so, went to Downing Street and met the Prime Minister, and again you'll see I think RJT40 is the email which I sent back to the office immediately afterwards recording the main thrust of that conversation.
Q. Five lines down, the print is quite small: "The PM started by saying that I had the most difficult job in the country. I said that mine was a long way behind his." Exactly. "He observed that he had long supported freedom of information, referring And I paraphrase, "to what he said a long time ago". The next paragraph: "He was very concerned about data losses but thought the matter needed to be kept in perspective. Risk averse ministers and officials should not let the pendulum swing too far the other way. But he fully accepted that a culture of data protection had not been taken sufficiently seriously and welcomed ICO support for Gus O'Donnell's data handling review."
A. Can I interject there that this was about three, four months after the great government data losses. HMRC had lost 25 million child benefit records. The MoD, Department of Transport, many departments had suffered some really serious data losses, and that had been a total preoccupation for the media, for government, for me. In that period before Christmas, everyone was extremely concerned the government had been careless with large amounts of data which had got into the wrong hands, and
Q. Well, he makes that clear in the last sentence.
A. Indeed, and the Gus O'Donnell review I mean, this was he asked the cabinet secretary to review what needed to be done, and we and I the office and myself played quite a large part in feeding into that review to try and improve governmental data handling.
Q. Can we move to the middle of the page: "On the Section 55 and the criminal justice and immigration bill, he understood entirely the need for stronger sanctions. He considered that the trade in personal information is entirely unacceptable and suggested he had himself been a victim in the past. I draw attention to some of the highlights in "What price privacy?", demonstrating the diverse nature and extent of the market. I may have invoked the point that many others beside tabloid journalists were involved and the media cases were largely of the tittle-tattle variety. The Prime Minister accepted that a strong sentence is needed to deter all those involved. This is especially important after recent data losses. I made it clear that this is a to be priority for ICO. I'm not prepared to give up. At the same time, he is concerned to strike the right balance with protecting freedom of expression, especially in relation to legitimate investigative journalism. Now that some time has been brought, he wants a compromise position to be achieved to minimise media concerns." The compromise was that we see at the bottom of the page an enlarged reasonable belief public interest defence and the publication of a prosecution policy from you; is that right?
A. No, I think you're jumping ahead a bit there.
Q. Okay.
A. What he basically said was unless we can get a compromise here, the clause is going to be dropped. He said to me: "I want you to go away and work with everybody else to see whether a compromise could be established."
Q. Yes.
A. And those two points at the bottom of the page were simply that conversation with him and Gus O'Donnell was in the room at the same time beginning to speculate what a compromise might look like. I was offering up by this time, the enlarged defence was on the table that had been discussed and I think we'll come back to it, I'm sure, but I saw that as part of the compromise and I had raised that and mentioned that to the Prime Minister. And secondly, I said that I was perfectly happy to produce a statement of prosecution policy and that would, I hoped, alleviate any concern on the part of the press and maybe other people. So this was not the deal. That took the next four, five weeks or so to put together. This was me speculating with him the sorts of areas which a compromise might cover.
Q. But he was making it clear to you that you were not going to get what you wanted in full-blown form, namely without any further amendment, the increase in the penalty to two years' imprisonment, but unless you came to some sort of deal you weren't going to get anything?
A. Yes, and I'm sure you'll come onto this. The letter I wrote a day or so later to the Prime Minister recorded that, but essentially the message was: unless a compromise can be found, then this clause is coming out of the bill. Indeed, if you look at the parliamentary debates for that day in the evening in the House of Lords, the government minister gave exactly the same message to the House of Lords. This is in suspense at the moment, but unless the interested parties can find a deal, can reach a compromise, then this clause is going to have to be dropped. I was very well, I'd expressed my concern the previous couple of days to the Lord Chancellor, the so Secretary of State, and I repeated it to the Prime Minister, and I felt very strongly indeed that it would be very damaging to all concerned if this clause were to be withdrawn altogether. I think in my statement perhaps we'll come on to talk about the detail, the compromise, but to roll forward a bit, at the end of the day there was a compromise
Q. Yes, before we get to the compromise, your letter to the Prime Minister was 7 March 2008. It's RJT41, 00544 under our tab 47.
A. Yes. Well, that, I think, you know, in more formal language, repeats what I've been saying just now. And the conclusion the penultimate paragraph, if I can read that: "I must conclude, however, by repeating this is a pernicious and largely hidden illegal market. It is highly damaging to individuals, to organisations and to society. Although I recognise the need for balance, withdrawal of the clause now would have very negative sequences. Although you assured me the clause would be reintroduced, I do not believe there will ever be a better legislative opportunity." And that was my letter to him on the record to just capture points we had been discussing.
Q. Aside from the Whittamore haul, which dates back to 2003, as you know, have there been any other similar hauls or smaller hauls your office knew about?
A. Oh, absolutely. If you look at "What price privacy now?", the second report, there are, I think, three or four examples of prosecutions which we were bringing forward, which we said you know, things had moved on a bit. Page 7, page 8, case 1, case 2, private investigator case 1, accepted a caution. Case 2, the case of Anthony Clifford and that was a case that Joshua Rozenberg covered for the Telegraph, which we saw a record of. And case 3, the Andersons. This was a couple who were they eventually pleaded guilty to 14 cases of blagging techniques. So there were cases going on and indeed, you mentioned earlier the Select Committee which I attended in 2007 and there were some good examples, if you like, of this sort of activity still going on.
Q. Can we be clear, Mr Thomas. This sort of activity, does it relate to media organisations or journalists?
A. No, I'm talking about the illegal market. I have to keep saying this. Our concern was wider, much wider than just journalists. And the cases which I was going to read out I don't have them to hand straight away, but one there in the evidence to the Select Committee. One, as our investigators visited some premises, the fax machine burst into life and said, "Please find out if this lady's got cancer." Another case at the same sort of time, a message sent to the receptionist of a sorry, a message sent to an investigator to go look at an abortion clinic to find out whether a named person had been in for an abortion. Now, I don't know who the customer was for that. I'm not saying it was the press. It could have been anybody, but somebody had instructed a private investigator to find out about a named individual, whether they had actually received an abortion at that particular clinic. So this sort of activity was still going on right through that was 2007, and perhaps we'll come later to what my successor told the justice committee just two months ago. LORD JUSTICE LEVESON Just remind me of the dates in relation to Mr Mulcaire, could you? MR JAY He was arrested 8 August 2006, pleaded guilty, I think, November 2006 and then sentenced whenever it was in January 2007.
A. Yes.
Q. So we understand the context, because we have to see the bigger picture, your campaign, if that's the right way of describing it, in relation to increasing the penalty for Section 55, was not targeted specifically at journalists; it was looking widely to all the customers who were the procurers, as it were, of this confidential information. Is that correct?
A. That's a point I've been wishing to get across to this Inquiry very clearly.
Q. Absolutely.
A. Yes.
Q. But the campaign against you, if that's the right way of putting it, was largely led by media organisations
A. I'd go further
Q. Just let me finish the question enlisting, where appropriate or otherwise, the support of politicians and government
A. As far as I'm aware, the media organisations were the only ones organising the efforts against the clause. I didn't have any indication at all that the legal profession or the financial services industry or the investigators themselves or anybody else was standing up and campaigning against the clause in the bill. So it was and I think I had some direct evidence of that when I was at meetings but certainly indirect when I was told about what was going on. The compromise being hammered out was involved me in three meetings in quick succession
Q. Can we just look at that, please, Mr Thomas. In your witness statement, annex B, the second bullet point on the second page, 00280. You tell us that between 11 March and 2 April, you attended three meetings with Sir Suma Chakrabarti to explore the scope for a compromise: "I understood that Paul Dacre, chairman of the Editors' Code Committee, was attending alternate meetings but we did not meet face to face at the time. At the last meeting, I was told that it had been decided to keep the clause but make two changes [first] the custodial sentence would require consultation and a ministerial order before being activated, and secondly, the public interest defence will be modified into a subjective or reasonable belief test." LORD JUSTICE LEVESON But that's purely subjective, is it? It's objective as well.
A. Yes, I think that's a fair comment, chairman. It is more subjective but there is obviously clearly still an important element of objectivity. LORD JUSTICE LEVESON It's got to be reasonable.
A. Yes. MR JAY You sent an email, for example, RJT 42 under our tab 48, 546, dated 24 March 2008.
A. Yes. This followed the second of the meetings.
Q. Yes. You make the point in the first paragraph and I'm going to paraphrase it that the issue had become very political and you set out how all the politicians were, as it were, lined up. The second paragraph: "The officials' position is currently to favour retention but with the new clause to widen the defence." So this is the reasonable belief test?
A. Mm-hm, yes.
Q. But otherwise when you say "favour retention", you mean keep the original proposal in the new bill? That's right, isn't it?
A. That was what I think the civil servants were favouring.
Q. Yes.
A. Keep it as it is, but build into it a wider defence and I was perfectly happy with that.
Q. Yes: "There had been several meetings with media representatives, including Paul Dacre, Guy Black, Murdo McClellan and Rebekah Wade. The media side welcome the new clause as far as it goes but are still holding out for removal. One of their fears though remote is that the penalty will be increased but the wider defence which gets taken later as a new clause will not succeed. They have countered this by arguing that the prison sentence should be dropped and the defence widened. I fell off my seat at this point and said my reaction to such an outcome would be nuclear."
A. Yes.
Q. We can see that. So it's quite clear that powerful media representatives were arguing the position as eloquently as they were able in support of their own self-interests, really?
A. Yes.
Q. Fair enough, that part? Thank you. The upshot, though
A. You didn't read the next sentence, which I
Q. Yes, please do.
A. If I just read it to you: "I was asked how we would react to removal. I said it would be very noisy and very messy. We will publicly denounce any such report. If we lost, we would publish a third report to Parliament, documenting how this state of affairs had come about." So I was playing hard ball, if you like, but I had to safeguard the position we had reached by making it clear to the permanent secretary that, you know, if there had to be a deal, we wanted a best possible deal.
Q. The upshot was that the deal which was attained was that the increased criminal sanction, sentence of imprisonment, would require secondary legislation that's the ministerial order you refer to but paired with that would be the introduction of the reasonable belief test defence. All of this is now in Section 77 and I think Section 78 of the Criminal Justice and Immigration Act 2008, which received the royal assent on 8 May 2008.
A. I would at some stage, maybe now, like a chance to say something about that.
Q. Please do.
A. Because that is still the position. That's on the face of the statute and I cannot for the life of me understand why the government has now not activated that provision. There was a consultation in 2009, just before the general election. My successor has been to Parliament very recently. This he has documented how this trade is still carrying on to this day. He's given many examples, and I am very disappointed as an individual now that still, despite all the material that has surfaced in recent months, the order has not been activated. It would be a very simple matter to bring that into force now, and my broad understanding back in 2008 was that it would only be a delay of six months or so, but that has not yet materialised and I'm afraid, sir, that your Inquiry has now given us the reason why it can't be activated. LORD JUSTICE LEVESON What?
A. Yes, my successor has been told that the government is not willing to activate it because it has to wait and see what your Inquiry leads to. I understand the Lord Chancellor wrote to my successor quite recently. So we're in a situation now of having to wait until your Inquiry is concluded before, apparently, that can be activated and I say very clearly this is my personal view I can see no reason whatsoever to once and for all address this very, very serious matter of this illegal market, why this section should not now be activated to send a very clear signal indeed at a deterrent level that this is to be taken very seriously, because even now there are people engaging in this sort of activity which need that sort of lesson. They need not only the deterrent effect of a prison sentence but also unlocking all the other sentences which become available once a prison sentence is there, and that was part of the campaign. It's not yet concluded. MR JAY All of this evidence merges into module three of this Inquiry. One can draw certain inferences from what you said, perhaps.
A. The chairman expressed surprise. This is all in the public record because the justice committee in October of this year made exactly the same point. They made a very clear recommendation as a select committee that the government should introduce this section straight away and not await the outcome of the Leveson Inquiry.
Q. This is all a nice segue to
A. I'm sorry, I said I wanted a chance to say this. This seemed to be the point to
Q. Mr Thomas, the next section, press knowledge and influence. That may or may not throw some light on what you've just been saying. Paragraph 29 of your first statement, 267.
A. Yes.
Q. Can we try and summarise this, given where we are at 3 o'clock on a Friday afternoon, having covered quite a lot of evidence already. You make the point fairly in paragraph 30 that although media coverage was limited this is the reference to the publication of your reports the reference to 305 journalists certainly did not go unnoticed. You refer to the table which we've looked at. You refer to the response to that. Paragraph 32, if I could deal with one sentence there, two lines down: "Certainly the table suggested heavy involvement across the tabloid press at least. I have always recognised that the material seized in Operation Motorman came only from one group of investigators and may have been entirely isolated." What is your considered view about that, Mr Thomas? Or is there no evidence either way?
A. There's no hard evidence, but we made the point in our second report that the Goodman-Mulcaire case appeared to be a completely separate group. They were not engaging in the same activity, but I think we said there were parallels. The hacking of voicemails had parallels to the Section 55 activity. I also refer to I said this morning, we documented in our first report how the office had prosecuted an investigator for this sort of activity in the mid-1990s and how the press coverage in the 2002, early 2003, late 2002, early 2003 they had reported three or four examples of this. So all that, shall we say, points towards this not being a completely isolated network, but I can't go further than that. By its nature, this is an underground market and I knew from conversations with my investigators how difficult it is to get the hard evidence.
Q. In paragraphs 33 and 34 of your statement you've covered much of this already, Mr Thomas you say that you had exchanges with press representatives on the substance of your reports. The general line was to accept that some journalists "did these things". Through numerous meetings, no attempt was ever made to deny the activities that you'd exposed. Then you say in paragraph 34, towards the end: "I have no doubt that by late 2006, most it not all proprietors and editors at national level knew all about the material we had published." So that's your evidence in relation to that?
A. A very clear impression that our report was being talked about was people were aware of it and were increasingly taking it seriously.
Q. Then you had a meeting with Mr Les Hinton at the offices of News International in Wapping, 27 October 2006 this is paragraph 35 you say in his capacity as chairman of the Editors' Code of practice committee. RJT22, which is our tab 27, page 00440. Does this tie in chronologically with Sir Christopher Meyer telling you you're speaking to the wrong person, speak to the Editors' Code of Practice Committee chair, you finding out who that person was, arranging the meeting and this is the meeting; is that right?
A. This is not yes, you're right in chronology, but I had previously met the secretary, Ian Beales. I'd met him about a month or so previously to explore issues and in my evidence there's a note of the meeting with him and we had a very frank exchange on both sides, and then a month or so later, I had the meeting with Les Hinton, who I knew was a powerful figure at News International, but also was chairman of the code the Editors' Committee at that time, and that was the reason for the meeting. I gave this as an example both of the level of awareness but also from the event that followed it.
Q. You can see your objectives under paragraph 1: tougher penalties, louder condemnation, plain English Section 55 guidance, changes to code within weeks.
A. Yes, that was I think I had an awareness somewhere the one of the virtues of self-regulation. It doesn't take years to go through Parliament. We can change it within weeks. I'm not sure whether the PCC claim that, but that was part of the general culture of self-regulation. I'd come across a lot of this at the Office of Fair Trading and the line was: "Let us self-regulate. We can latch onto things and change them very fast."
Q. Then in the second part, ICO offers, first this is public interest guidance?
A. Yes.
Q. In other words, displaying what would amount to a public interest defence
A. Yes.
Q. wider than the code and then you set out possibly categories: crime, inpropriety, health and safety, misleading statements and activities.
A. Just to interrupt, one of the points I was making was that we, by this time, were fully engaged with the Freedom of Information Act and virtually every difficult case we had to handle involved a balancing of public interest considerations so and we had published a great deal of guidance on what is the public interest when it comes to disclosure in the freedom of information context, and this was not an exhaustive list but these were the sorts of matters which were covered in our guidance as to what the public interest means in the FOI context.
Q. Then you use the term "last-chance saloon" was it you who used it?
A. I think it was, but I think I was aware that that phrase had been used on a number of occasions in this context, going back perhaps 20 years.
Q. Yes. Mr Hinton says on the next page "accepts equals problems", so he's accepting that there is a problem.
A. I've highlighted that in my evidence because that is my note made that day, and that, I think, is consistent with what I'm saying elsewhere, that everyone I talked to recognised there was a problem and there was he, saying to me this is my note: "I accept there's a problem. Something radical will happen." That was his very clear message to me.
Q. Although he was hostile to the prison sentence?
A. Absolutely.
Q. Then you say that within two days of that meeting there's a leader in the Sunday Times under the next tab, RJT23, 29 October 2006.
A. Could you remind me of the tab number? LORD JUSTICE LEVESON 28. MR JAY Tab 28. LORD JUSTICE LEVESON 442.
A. Thank you, sorry. Yes. This was the leader on the Sunday Times. I'd met Les Hinton on the Friday at about 4 o'clock and over the weekend, picked up the newspaper and there was this very strong leader. I felt that there may have been some connection and I made that point in my witness statement. I have now seen the witness statements from News International and they are saying there was no connection. I do no more than what I said in my witness statement. It raised questions in my mind. It seemed to be a coincidence, but I had no inside knowledge at all as to how the editorial came to be written and I've seen the witness statements. It's not for me to make any hard allegations there, but it did seem to me there might have been a connection.
Q. That point may be taken further by Mr Rhodri Davies. I'm going to leave it there, Mr Thomas. LORD JUSTICE LEVESON One comment on it. In the left-hand column, it's said: "He [that's you] did not talk in the interview about the role of the press in protecting the public by exposing the abuses of the powerful. Newspapers had already been doing this for centuries when he took up his post four years ago. This duty of the media is vital in the struggle to maintain an open society, yet Mr Thomas would send reporters to prison for fulfilling it." Is that a fair reflection of what you were proposing in the legislation?
A. No, it's not, because I was absolutely clear first of all, this had been criminal since 1994. Nothing new. And secondly, there was a number of defences, of which the public interest defence is by far the most important, and although almost everything which the press were doing in this area was justified in terms of what I might call genuine investigative journalism, virtually all the stuff I was aware of certainly coming out of Motorman was not something which would have been at all easy to justify in public interest terms. I think I said to the Select Committee it was, you know, celebrity tittle-tattle, and I think it would be very difficult indeed to justify the vast majority of that in public interest terms. I hope I gave that message to you this morning. MR JAY Yes.
A. So I don't think this was a fair comment. This was you know, I understand what they were doing. I understand the need for them to articulate their various arguments, but their constant line was what we were trying to do would threaten genuine investigative journalism, and I was my response was: for a start, this is not genuine investigative journalism, and secondly, you have a very powerful defence there, and later I came on to say the defence itself could be widened to meet your concerns.
Q. Thank you. Then in paragraph
A. I'm not sure I made the point that this editorial, sir it was not prompted by anything in the public domain at that time. I had done an interview with the Times which I think appeared on the Saturday. I accept that. That didn't mention this matter at all. It mentioned many other matters. In fact, the editorial itself talks about a "little-noticed report". So my concerns about the article were reinforced by this appeared out of the blue. It wasn't sort of following something in the news over the previous couple of weeks. But equally, I totally accept that the evidence from the editor and others concerned was that there was no connection with my meeting with Les Hinton. I'm just reporting how it appeared to me at the time.
Q. Yes. In paragraph 27 you say of your first statement: "Whatever was precisely known about the nature and extent of press misconduct across the industry as a whole, it became increasingly clear that the press were able to assert very substantial influence on public policy and the political processes." And really, you learned that from your experiences derived through watching what happened to the criminal justice and immigration bill, culminating in the compromise which you told us about; is that right?
A. Well yes. That was when I was directly on the receiving end with first-hand evidence, but I mean clearly right from 2006 onwards, there had been a kickback from the press, and they were setting out their counter-arguments.
Q. You refer by way of example to Mr Paul Dacre's speech at the Society of Editors conference, given on 9 November 2008, RJT46 under our tab 52 at 558.
A. Yes. This was him six months after the battle had concluded.
Q. Yes.
A. I'd had a meeting with him which was actually a very friendly and constructive meeting in the intervening months, and then at Bristol, he set out in his speech his version of events. I can do no more than just refer the Inquiry to what he said. He described me as a "tenacious and principled fighter who I've come to admire". He may not agree after this morning when I got his title wrong, but I was teased, shall we say, at the conference for being described in those terms by Mr Dacre.
Q. You didn't have the benefit of a dinner with the Prime Minister, Mr Hinton and Mr McClellan, which was 18 months prior to that, which Mr Dacre refers to in the speech. This is three lines down RJT46: "The agenda was their deep concern that the newspaper industry with facing a number of very serious threats to its freedoms." The Data Protection Act and the amendment to the criminal sanction was then mentioned, and then in the next short paragraph: "The Prime Minister I don't think it's breaking confidences to reveal was hugely sympathetic to the industry's case and promised to do what he could to help. Over the coming months and battles ahead, Mr Brown was totally true to his word." It might be said though that Mr Brown simply followed where his principles were taking him and he wasn't listening at all to blandishments or otherwise given by Mr Dacre and Mr Hinton. Is that not a possible fair explanation of this?
A. I don't think it's for me to say one way or the other. I mean, I've set out my involvement. Mr Dacre's speech sets out his. I don't know what happened between these various stages. I can speculate but I don't think it's for me to speculate.
Q. Mr Dacre certainly had the ear of Mr Brown over dinner. That's
A. I think there was a general feeling that people at the head of newspapers were very influential with the politicians and this perhaps was an example of that. And although they rested their case, as I said just now, on the threats to investigative journalism, I was surprised by how hard they were fighting, and it really left me with a message that we were challenging something which went to the heart of much of the certainly the tabloid press activity. Someone once said to me: "You do realise that you are actually challenging their whole business model?" Maybe that's one reason they were fighting so hard, because on the one hand, they were not publicly accepting this sort of thing went on. On the other hand, they were fighting very hard to avoid the consequences of the law as we saw it. MR JAY Mr Thomas, I am very much nearing the end but we need to deal with section G and H of your first statement. I think as we've been going for an hour and twenty minutes LORD JUSTICE LEVESON Yes, let's have a break. Thank you. (3.21 pm) (A short break) (3.28 pm) MR JAY Mr Thomas, the current situation, please, G. Mr Graham will be giving evidence to the Inquiry in January to bring us up to date, as it were, but you rightly say in paragraph 44: "My impression and this was reinforced anecdotally by what my team were telling me between 2006 and 2009 is that press misconduct of this type set out in the two ICO reports and in this statement largely ceased after 2006." And then you refer to a quote from the Independent on 10 August 2006. We can go to the very bottom of it, in the first box on the next page: "What was a flood of stories stood up in this way is now a trickle." Then you refer to Mr Dacre's speech at RJT46, which is really a very strong warning shot across the bows of the press, isn't it?
A. Well, that's from Paul Dacre.
Q. Yes.
A. Yes.
Q. RJT46 is under well, in fact we've seen it, haven't we? At paragraph 45: "What Paul Dacre said then was consistent with what he told me when he asked to see me on 4 June 2008 in his letter to me of 25 July 2008." That's our tab 50. RJT44, page 00555, where he thanks you for coming to see him: "It was good to see you and subsequently to watch in admiration the way your body is changing the landscape of freedom and secrecy in this country. As promised, I am now writing to you about the progress we're making over DPA. You already know about the various undertakings at Associated Newspapers to ensure that our journalists understand and comply with the DPA, especially in regard to Section 55, and at our very useful meeting, I promised you an update on the various other industry initiatives at or on the DPA." At the bottom of the page: "Work is under way on an industry-wide education and information notice which will be made available to all journalists." The notice will be distributed digitally, et cetera. Third paragraph: "We are planning during the autumn to carry out a cross industry survey on data protection issues to gauge levels of awareness, information and education." That is all positive news, isn't it?
A. Yes. I had met him previously before then when he had been asked by the Prime Minister to undertake a review of the 30-year rule, which had an impact on the freedom of information legislation. He asked to see me then. Then my only other contact was this meeting I had with him in whenever it was, June, and it was a charming meeting. We both recognised there had been a battle. We both recognised that we'd had our respective positions and he went out of his way to tell me that within the Mail group newspapers and, I think, more generally across the industry generally, that what we had done had sent shockwaves and obviously the imprisonment of the two people under the RIPA matter had also had a big influence and that they were determined to clean up their act and were cleaning it up.
Q. Yes. In terms of regulatory reform, Mr Thomas, you're not suggesting in any event, it would be outside the remit of this Inquiry wholesale changes to the UK data protection regulatory framework. You are arguing for and you've already made this plea to us an immediate ministerial order to activate Section 77. Towards the end of paragraph 49, you say: "There remains a case for the ICO to publish a statement of prosecution policy along the lines of the draft in early 2008." We should identify that. It's tab 42, RJT36, starting at page 527. If you look forward to page 529, what you're furnishing there is some general guidance on public interest, either for the purposes of bringing prosecutions or also for the purpose of providing a gloss on what that means in Section 55; is that correct?
A. That is correct, Mr Jay. This was drafted at fairly short notice towards the end of January, when we first got wind of the concerns being expressed by the media, and one of the concerns was yes, there is a public interest defence, but it's very uncertain and no one knows where they stand. So my reaction was: well, let's draw upon our freedom of information experience and put together a note on this. I'm not I don't think this was published during my time or indeed subsequently. I'm not quite sure what's happened since I left the office, but although it was done in quick order, I look at it now and I think actually it is still quite helpful, and I wouldn't want to do very much changing to it. I think it might be polished a little bit, but I think it does set out very clearly that it is not that difficult to identify the major public interest considerations in this area.
Q. Yes.
A. And of course, if the defence were to be widened, as the prospective change in the law anticipates, there would be some modification to this note, but the substance of what is public interest I don't think would change very much.
Q. Thank you. I'm not going to read it out, given the time, but we'll certainly take this into
A. But I would just say, Mr Jay, that all the stuff that I saw from the Motorman evidence didn't come near this sort of category. It was what I think I said to the Select Committee. I haven't seen a whiff of public interest. It was tittle-tattle. It was fishing. There may be one or two examples, but they would be exceptional.
Q. Finally, Mr Thomas, I need to pick up on a number of points others have given to me. The first is a general point. Did you invite the editor of the Sunday Times to attend an interview under caution in 2003 in respect of possible breaches of Section 55 in relation to Lord Levy's tax affairs?
A. I have no memory of that whatsoever. I suspect it was actually 2002, not 2003, or perhaps News International might check their dates on that. When I got to the office, there was sort of a casual comment there had been a problem with Lord Levy some time earlier. I did telephone Francis Aldhouse on Wednesday this week saying, "What's your knowledge of this, because it's been raised by News International?" He said to me that it rang a faint bell, but he had nothing more to contribute than that. I'm sure something happened. I personally don't know what it was, and nor does Francis Aldhouse have any ability to help us. If that had been the case and can I speculate? If the Office had invited the editor and had been rebuffed, that might perhaps have influenced people at the investigatory level as to the problems of interviewing people from the press. I don't know. That's before my time and I'm afraid I don't know if the office has searched its records for anything on that because it's only surfaced in the last few days, but I have no personal knowledge of that at all.
Q. When you were Commissioner, were journalists or editors on any occasion, to your knowledge, invited to attend an interview under caution in respect of possible breaches of Section 55?
A. No.
Q. The argument against the introduction of a prison sentence runs along these lines: that it does have a chilling effect on genuine investigative journalism because of uncertainties regarding the scope and content of the public interest defence, so that even unwittingly it will have a serious chilling effect, which you haven't properly taken into account as an argument. Given the importance of Article 10 and the importance of a free press in a democratic society, the pendulum should really swing the other way. Can I invite you, please, to consider that argument?
A. I totally and completely understand and support the freedom of the press, not least in holding governments and those in power to account. My evidence contains words to that effect. I totally recognise the need for balance in this area. But what I said at the time and I perhaps repeat now first of all this has been a criminal offence since 1994. We're not seeking never have been seeking to change the substance of the law. The debate was only about the penalty, and I would assume that no journalist or editor wants to have a criminal conviction, whatever the sanction. Secondly, to the extent it had a chilling effect on unacceptable press behaviour, then I would welcome that. I felt and I said at the time that the whole point of a deterrent is to stop illegal activity from being carried out. And I address the point more explicitly, first of all with the draft prosecution statement that we looked at ten minutes ago, but I also said and I said this to members of the various associations, the Code Committee and in Select Committees I said that any journalist seriously justifying what they're doing in public interest terms at the very least should make a note of what they're doing, and if they were to wave that in the face of a Commissioner later, that would be a very serious inhibition on a prosecution later. They should also seek legal advice in those situations and they should seek the authority or the say-so of their editor or somebody with suitable authority. But the sort of scale of the activity that we saw I'd almost describe it as industrial engaging or buying information from private investigators which at least must be a risk of coming near to criminality, unless they could document very clearly what they were doing in public interest terms, then they were going to be at risk. I said that if they did that, I did not think that it would have any sort of chilling impact on the genuine investigatory journalism. If you look at the second of our reports, we included a quotation from the Observer newspaper in August 2006: "Occasionally all newspapers that turn over stones will need to do exceptional things and need that freedom if they are to be effective watchdogs, but such investigations can't be generalised trawls for titbits, a covert sweep for something or other, even if only a Palace gossip paragraph. Condone that, and the kind of seamy wheezes alleged here will poison the well for all journalism." And there was a similar article at the time of the Glade case at Blackfriars by Roy Greenslade, I think in the Evening Standard or perhaps the Guardian, making some very similar points and actually saying that the media ought to welcome what we were doing on this front.
Q. Thank you. In relation to ex-directory numbers, do you accept that the demands of what is known as the Reynolds qualified privileged defence in libel, which encourages responsible journalists to contact a potential target in advance of publication to put the allegation to him or her, means that getting in touch with the subject of stories is both important and entirely legitimate?
A. It's important and it's legitimate. What is not acceptable is to either engage in or to be the customer of illegal activity. There are ways and means of getting hold of people other than using stolen data from inside, for example, telephone companies. From time to time, the media need to get in touch with me. It's not that difficult to approach the organisation with which someone is associated and to say, "We need to get in touch with Mr Thomas very quickly. Can you please pass on this message?" I get those on a regular basis and that is the correct way to behave. It is not correct to rely upon information which was obtained by deceit or deception or corruption.
Q. Do you accept that in many cases there may have been a public interest defence in stories which journalists were writing? This, of course, is in relation to the Whittamore material.
A. I said just now that I saw nothing at all which struck me as being justifiable in public interest terms. I also said earlier that I'm not condemning every single transaction. I gave the example of the minister who had resigned from the government. Perhaps that might have raised public interest concerns. I'll also share with you, in our report we documented some examples of ordinary people being caught up in this, which I felt particularly strongly about. At the time how can I put it? No one cared that much about the celebrities and we understood that and we were concerned with the protection of the private individual. We gave examples, if I can just turn up internal page
Q. Is this the first report or the second?
A. The first of our reports.
Q. RJT1?
A. Yes. If you look at paragraph 5.10 on page 17, the internal page I don't have your page number
Q. 00298, yes.
A. You see where I'm going on this. We gave some examples of private individuals. The first was a painter and decorator, and I remember being told that he couldn't understand why he was on the list of Whittamore's targets. And then apparently I pick this up he worked it out for himself. He had been painting and decorating the house of a lottery winner and his van had been parked outside, so somebody had tracked him down from the registration number of his white van outside the house of a lottery winner. No public interest there that I can think of. The second case, third case: a green grocer, hearing aid technician. The last case I mentioned there I've been thinking about this and I'll share it with you. It's a medical practitioner who was doorstepped by a Sunday newspaper in the mistaken belief that he had inherited a large sum of money from a former patient. Now, if there was hard evidence that a GP had killed a patient or contributed to his or her death, then conceivably and I use that word advisedly there might be some sort of public interest justification. But even then, I would say it's a matter of proportionality. If you only have a rumour going around the village and they hadn't investigated themselves and hadn't taken proper steps to involve the police or even do their own investigations, just simply getting hold of that doctor's personal information in order to doorstep him on that particular matter, which indeed proved to have no foundation whatsoever I think very hard proportionate terms to justify as being in the public interest. But I do recognise there may be some examples, and that's one which I'm happy to share with you.
Q. Final question, Mr Thomas: do you accept that in many cases journalists were asking Mr Whittamore to supply information that was already in the public domain?
A. It depends what you mean by "public domain". An address or a telephone number would not normally be in the wider public domain, in the sense of being in the press or being very readily available, but I do recognise that in some situations an address or a telephone number is not a matter of great secrecy or, you know, beyond anyone's sight. On some occasions, I have no doubt that people were using Whittamore or similar investigators to shortcircuit and we've touched on this this morning to get there faster. But I do not believe that justifies the sort of blagging, the sort of deception, the sort of corruption that we came across, just because that number might otherwise have been available by more laborious means. And people only go ex-directory for good reason. MR JAY Mr Thomas, those are all my questions. I understand that there may be applications by others for short questioning. LORD JUSTICE LEVESON Yes. Just can I pick up one thing you said just a moment ago, Mr Thomas. You were talking about examples of which you felt particularly strongly and you said: "At the time how can I put it? No one cared that much about the celebrities and we understand that." Now, I'd just like to ask you what view you, as the Information Commissioner, had in relation to those who are celebrities?
A. Well, I hope I didn't give any sort of misleading impression, sir. Any celebrity has the same entitlement to the protection of the law and indeed self-regulation as much as anybody else. But I'm trying to reflect back to where we were eight, nine, ten years ago, and the fact that in general discourse there was a sort of view that celebrities put themselves into the public arena and have to accept some intrusion into their lives as a result of that. What I was trying to say was: therefore, any formal action, particularly a prosecution, was likely to be, if you like, that much more difficult because there will be less sympathy for the celebrity. That was perhaps one of the factors in our mind at the time. That's why, particularly in the reports, I wanted to highlight the situation of people who were not celebrities. I gave the three examples just now coming out of Whittamore, but most of the other examples, where insurance companies, finance companies, law firms had been involved, these were not celebrities at all. These are people who are caught up in insurance claims, in matrimonial disputes, a wide range of activities where this industry was targeting them. I'm in no way suggesting that just because they were celebrities they should not be taken seriously by us. Indeed, I mentioned to Mr Jay that we'd gone to 20 or 30 people for witness statements and quite a few of those were people who were celebrities. LORD JUSTICE LEVESON Yes.
A. I don't need to mention all the names now but some of them have already appeared here and others have come forward as being recognising they were victims. LORD JUSTICE LEVESON Well, we've seen some of the data, yes. Thank you. Mr Davies? MR DAVIES Yes. If I may, sir. LORD JUSTICE LEVESON Shortly, Mr Davies. MR DAVIES I said about half an hour. I'll stick to that. Questions from MR DAVIES MR DAVIES Mr Thomas, my name is Davies and I appear for News International. Can I just say for the record I'm not going to go into it that we do not agree with you on the interpretation of Section 32 of the Data Protection
A. I'm sorry?
Q. We do not agree with you on the interpretation of Section 32 of the Data Protection Act, because we take the view that it does cover steps leading up to publication including, for example, contacting someone to ask them about a story.
A. I don't think I was giving any sort of definitive rule in the interpretation of Section 32. I was talking in very general terms. MR DAVIES It's perfectly
A. I was not in any way attempting to interpret Section 32 today.
Q. Thank you. Now, you became Information Commissioner in November 2002. It was, in fact, on 11 December 2002 that your office wrote to the editor of the Sunday Times, Mr Witherow, asking him to attend an interview under caution under Section 55.
A. Well, I thank you, you've corrected me. I have no knowledge or memory of that. Can you tell me who wrote the letter?
Q. It was a Mr Farrington.
A. Well, he was one of the investigators who was a more junior rank than Alec Owens.
Q. Yes. When he say he wrote it, he signed it. I don't know who had input into it.
A. Well, yes.
Q. So presumably you don't recall that the cases that Mr Witherow was asked to attend an interview about concerned Lord Levy and Lord Ashcroft and one other that I needn't mention.
A. Lord Ashcroft wrote to me well, as you know he made the FOI request in 2006.
Q. Yes.
A. And either before or after I can't recall now he had expressed quite strong frustration that my office had not been much use at sorting out his complaints. It wasn't the first time. I mean, before I even started, Stella Rimington, who was head of MI5, in her memoirs had written that her personal information had been obtained by somebody and she had recorded she'd gone to my office and hadn't got much joy out of the office. So that was part of the generally background and context. As for Lord Levy, apart from what I said earlier, which is, I have to say, a very, very faint memory and as I understood it, before my time. You're now telling me it was two weeks into my time, but I'm afraid I have no personal recollection or knowledge at all.
Q. You've said quite a lot about investigative journalism and how that's not to be threatened, but it's quite obvious, isn't it, that if you have a conjunction of the Sunday Times, Lord Levy, Lord Ashcroft, tax and financial affairs, then we're going to be talking about investigative journalism and the public interest, aren't we?
A. Well, I don't want to be drawn on matters I don't know much about, but from what I've read in the last few weeks about, you know, the tax affairs of somebody in the public eye, then certainly in that sort of situation, we are approaching the public interest territory, yes.
Q. Yes, and nonetheless, your office thought it right to ask Mr Witherow to attend an interview under caution. Presumably, you would not be surprised that they got a lawyer's letter back saying this was perfectly proper and Mr Witherow doesn't intend to attend for an interview under caution?
A. As you tell me now, I'm not surprised.
Q. No.
A. And indeed, the paperwork you shared with me on Tuesday principles that point out and I think the matter didn't go any further.
Q. No. And you would expect, wouldn't you, that Mr Witherow would have taken advice on Section 55 and on the penalties available under it?
A. I imagine so, yes.
Q. And what he would have been told then was that they included a fine but not imprisonment?
A. Yes.
Q. You've confirmed today that in your time as the Information Commissioner, that seems to have been the only occasion upon which a journalist was invited to an interview under caution for a possible breach of Section 55?
A. I can only share my knowledge. I mean, you brought to the surface an example which I didn't know about. That was in my first two weeks. But even if it happened six months in, I wouldn't necessarily have known about it. I probably would have expected to, but all I can say now is I'm not aware of any example, apart from the one you just mentioned, where we directly approached a journalist or an editor.
Q. That example is actually mentioned in the Times article that you complained about, following your meeting with Mr Hinton. Did you notice that?
A. Um
Q. We'll come to it later so if you haven't picked it up
A. I can remember the reference to Lord Levy, yes, and indeed he was on the front page of the Sunday Times that particular day, so obviously there's a connection to be made there. On a separate matter, this was the cash for honours issue. For all that what you're saying is: is that public interest? It's certainly getting very much into that territory, yes.
Q. Yes.
A. But this was not in any way typical of the material coming out of the Motorman inquiry.
Q. No, Mr Thomas, and what's certainly troubling about it is this is the only occasion upon which the big stick of an interview under caution was wielded. So one is bound to ask: is it a fair surmise that the reason that happened was that your office was under pressure from two powerful and well-connected people to do something?
A. I don't see it that way. I mean, powerful, well-connected people would normally write to the Commissioner and say, "I want to bend your ear", and occasionally you had things of that nature happening. I mentioned Lord Ashcroft wrote to me, and I think it was a dead issue by that time, but I don't I have no knowledge. I just simply can't help you on that.
Q. I see.
A. If you're suggesting that we wrote what was the date? The second week of December?
Q. Yes.
A. Well, that would suggest that whatever complaint or issue that Lord Levy had raised had come in some time before I'd started, so it didn't come across my desk is all I'm saying.
Q. It was an old complaint as it related to something which happened in 2000, which makes it perhaps all the more remarkable that it was taken up three years later.
A. Well, I mean, I made the point this morning. The investigations unit in those days was I think I used the phrase "self-contained", and to a certain extent self-governing. I wasn't happy with that, so I changed things there. They were, perhaps, more detached from the rest of the office than I was happy with. I can only speculate that the letter would have come in and they would have done something about it. They weren't the most sophisticated of people. They would have I mean you mentioned one person's name. He was not a person who I think I ever had a meeting with myself. I recall the name, but no more than that.
Q. I don't want to spend a lot of time on this, but it is rather odd, isn't it, that you had this avalanche of information which we've heard of on Operation Motorman, and that didn't lead to any such letter, and this did?
A. I just don't know what their methodology was. I didn't know, certainly in those days even now, I don't have detailed knowledge of how that team undertook its activities, so I don't draw any particular inference in the way you're suggesting.
Q. All right, let's move on to your meeting with Mr Hinton on 27 October 2006. You raise this at paragraphs 35 and 36 of your first witness statement. Your meeting with Mr Hinton was, as we've heard, in his capacity as chairman of the Editors' Code Committee. He wasn't wearing a News International hat?
A. It was at his office, but you're quite right.
Q. What you suggest in those two paragraphs is effectively that immediately after the meeting, Mr Hinton lent on the editor of the Sunday Times and a journalist at the Times to write hostile pieces about you?
A. I wasn't suggesting anything at all apart from what's in my witness statement.
Q. Well, you're
A. I said the episode raised questions in my mind
Q. Yes.
A. about proprietorial influences on editorial independence and freedom.
Q. Yes.
A. That is absolutely how I saw it at the time. I thought: "Gosh, this is very surprising and strange. Just 48 hours or less than that after I'd met the most senior person at News International, here suddenly I'm appearing in a leading article, the lead editorial in the Sunday Times, on something which is not part of the public debate at the moment." I've now seen the witness statements from the editor at the time and also from Mr Linklater, and they say categorically they were not directed by Mr Hinton. I have absolutely no reason to challenge or disagree with that. All I've said was at the time to me, and to others around me, it looked strange.
Q. So am I understanding this right: that you are not making any allegation that there was any interference by Mr Hinton which led to those two
A. I'm saying no more than appears in my witness statement.
Q. Can I just take a moment to deal with the context at the time, Mr Thomas? You'd published your "What price privacy?" report in May, about five months earlier. On 24 July, the government had had opened a consultation period on the proposals for imprisonment for breach of Section 55 and that was a proposal which you had yourself initiated. Since publication of that report, you say in the follow-up report that there had been a growing and substantial level of positive press coverage. So that was presumably going on in October?
A. Yes, growing, not exactly an avalanche. But there was more media interest, particularly after Goodman and Mulcaire had been arrest, and I think that began to really lift off the
Q. Which they had been at that point?
A. Yes, indeed. That was August, yes.
Q. And you'd given a lengthy interview to the Times, which was published the day after your meeting with Mr Hinton.
A. I think the interview had been about two weeks previously, but you're quite right, if was published in the intervening Saturday.
Q. And it may be that was not unconnected with the fact that there was an international data protection conference in London the following week?
A. Um I can't recall the timing. I know that that was
Q. It's mentioned in the interview.
A. I was organising and chairing that conference. That was a major preoccupation for me at the time, to have the world's commissioners all coming to London, so I was the interview was largely sort of flagging up the issues to be discussed at the conference.
Q. Exactly. So you were actually trying and succeeding to get a bit of press coverage for your conference which was coming up.
A. We spent a lot of time trying to get press coverage on all sort of things, yes, and this was one of them. It wasn't
Q. Then the consultation period for the government's consultation paper on imprisonment was actually closing on 30 October, wasn't it?
A. Um
Q. On the Monday?
A. I forget the exact date but that sounds about right, about three or four months after it started.
Q. So when the Sunday Times wrote a leader on the Sunday upon the desirability or undesirability of imprisonment for breaches of the Data Protection Act, it was actually writing it the day before the end of the consultation period on exactly that subject?
A. Yes.
Q. That seems quite an opportune moment to write such an editorial, hadn't it?
A. Except there hadn't been much about our report in the previous three or four weeks. I'm not going any further than I set out in my witness statement. It appears I'm even wrong to raise questions but I did, in my mind at the time, and until I saw the witness statement on Tuesday of this week, when they deny any sort of direction from Mr Hinton, I thought there was a connection. And virtually everybody I've talked to says, "Gosh, that does look rather strange, doesn't it?" But we've now seen what your witnesses have said and I in no way wish to challenge that.
Q. Thank you. The other point which would have had a resonance for Mr Witherow, who was the editor of the Sunday Times, was that Lord Levy was back in the news on the front page that Sunday, and it was Lord Levy about whose affairs he'd been invited to an interview by your office three years earlier. So it's not there were very, very good reasons why he might have chosen to publish that editorial on that Sunday, quite apart from your meeting with Mr Hinton?
A. Yes.
Q. The other point you make about this meeting at paragraph 35 of your first statement is that you refer to your manuscript note and you say that "that confirms knowledge of misconduct at the highest level". Now, "the highest level" is a reference to Mr Hinton, presumably?
A. Yes.
Q. I'm not quite sure what you mean by "knowledge of misconduct".
A. Well, what I meant was the sort of activity which had been documented in our first report, which had been published some five months previously, and what I had meant was that this produced the prima facie hard evidence at the very least that tabloid journalists were significant customers of private investigators who were breaking the law to obtain information.
Q. So essentially
A. And that's the sort of material which I which was documented in our report of 2006. It's the sort of material which I was engaged in many meetings throughout this period with many people, and I wasn't going through chapter and verse, but the when I talk about the misconduct, that's what I had in mind and that's what I shared with him.
Q. I just wanted to be clear about this. The knowledge you were attributing to Mr Hinton is what was to be found in your first report, which had been published five months earlier, and what you had been saying at other meetings and were repeating again at that meeting with him?
A. Yes, and I use this example because I think my witness statement said that throughout many meetings and discussions, nobody seriously challenged the thrust of what we were saying, and indeed some went further. If you look at paragraph 33 of my statement, I say the general lines surfacing in many conversations was to accept that some journalists did these things and to indicate thats we had uncovered details of what everyone knew was going on, and then going on to talk about cleaning up our act, et cetera. So this was generally what I was talking about by "misconduct", and from my recollection of that meeting and from the notes that I've made and shared with you, that was the sort of matter which Mr Hinton appeared to accept, and that's my contemporaneous note: "Accept what you say. Something radical will happen." Presumably something radical because he recognised that things weren't right.
Q. I'm not going so go into the full note of the meeting, but we see again in that note and in fact in your manuscript note that the industry was opposed to prison sentences for breach of section 55?
A. Yes.
Q. That was not a view which was confined to News International or indeed Associated Newspapers, was it? It was universal?
A. Certainly across media organisations. I only had dealings directly with News International and Associated Newspapers, and that was only later, as I've explained. Otherwise, most of my contacts were with the various representative organisations. I refer in my evidence to a bill ordering range, and that was one of the problems we had. We didn't quite know who to talk to. I have a list of the various bodies apart from the Press Complaints Commission: the Editors' Committee, the Society of Editors, the Newspaper Society, the Newspaper Proprietors Association. And we didn't quite know I didn't quite know who we should be talking to.
Q. I'm not going to venture into that, but the point is that the press, including the Guardian, to take one extreme end of the press, was united on that?
A. No. I think you'll find the Guardian was a great deal more broadly sympathetic. I'm not sure "supportive" would be the word to use, but I think they recognised perhaps I'm wrong in that
Q. We have their response. If go to tab 29, I think it's towards the back. Yes, page 475.
A. Oh yes.
Q. "Guardian News and Media takes a different view on some of the issues. Nevertheless, it unreservedly supports the Newspaper Publishers Association's opposition to custodial sentences for journalists who are found by a court to have breached Section 55."
A. Thank you. I was simply reflecting that I was aware the Guardian were taking a somewhat different line from everybody else. I couldn't recall the exact detail of all that. I was also aware that the editor of the Guardian, Alan Rusbridger, was voicing a dissenting line when the code changes were made at some later stage and he wanted more prominence to be given to third parties, investigators and so on. But what you're doing here is saying that the Guardian was on a different take but I was wrong to say that they were supportive of a stronger sanction.
Q. And that argument that imprisonment was an inappropriate sanction for breach of Section 55 coming from the press was an entirely cogent and respectable argument to make, was it not?
A. Oh, I've never disputed it. I can see the force of their argument. If I was in their shoes, I would make the same argument. I disagreed with it, but it was a respectable argument. I thought they took it too far. I thought they addressed far too much in terms of investigative journalism, but obviously nobody wants to be regulated more than they have to be, and I'm not surprised therefore that the Guardian, which probably does carry out more genuine investigative journalism in the public interest than perhaps some of the other papers, wanted to have as much freedom as possible.
Q. There was also, as I think you know, a legal argument that it would in fact amount to a breach of Article 10 to introduce a prison sentence which might apply to journalists.
A. Is this the opinion from
Q. It's Mr White.
A. Yes, and that was the one which surfaced at the I think the first meeting I had with the minister. I think Mr White actually was at the same meeting and tabled and left that opinion with so I recognised the argument. I thought, with the greatest respect, that it was a good argument taken a bit too far, but I understood where it was coming from.
Q. So essentially what was going on in this campaign was that as you acknowledge, both sides had an argument to make and they both made it very vigorously?
A. Yes, yes, yes.
Q. The press were, of course, quite entitled to oppose the proposals which you were putting forward?
A. Yes, but I don't want to keep on saying this, but my response all the time was: this has been the criminal law since 1994, we're not changing anything in the substance of the law, and if you believe you're acting in the public interest, you have nothing to worry about.
Q. Well, yes. Of course, the difficulty about that is that opinions about the public interest can vary
A. Which is why I was quite ready to go along with the idea of widening the defence.
Q. We've seen some of that today, haven't we, because you have said that to obtain the telephone number of a minister who has just resigned in order to get a comment from him as to the circumstances of his resignation might but you're not sure, I think be in the public interest?
A. No, I was speculating if I use the word "might", because I was taking a not a hypothetical case, but taking a case where I didn't know the full facts, and in that situation, I can see the argument, as I could see the argument with the GP I mentioned, but when you are a regulator you look at all the evidence and decide whether to go forward or not. Likewise, if you're a journalist and if you're in doubt, you seek advice before using or receiving information which may or must have come without the consent of the data controller.
Q. I want to go on to the publication of "What price privacy now?" You have mentioned that the numbers in the famous league table, as it originally appeared, were wrong in relation to the Sunday Times and indeed consequentially the News of the World, I think. Mr Caseby, who was the managing director of the Sunday Times, wrote to you about that. His letter is at tab 32, I think.
A. Yes.
Q. Just let me catch up. He starts that letter off by saying that he spoke yesterday with your colleague that was the day of publication and you may not know this, but of course the first question he asked was: "Where did you get your figures from? Can I see them?" He makes that point over the page at paragraph 3, because he says, "I don't know, because you haven't provided the information necessary to allow the Sunday Times to defend itself." And so on. So he's complaining vociferously, I think one could reasonably say, that you have made allegations against the Sunday Times and not provided the information so they can examine them.
A. He also knew, by the way and that's in that letter on the second page he knew the names of the four people who had been prosecuted in Blackfriars, although the case had not achieved any significant publicity at all and he knew the names of the celebrity victims who were mentioned in court. So to my mind, that said straight away that people at the top of the newspaper industry knew a great deal about what had been going on. So the names are mentioned in paragraph 2 of this letter.
Q. Yes, indeed.
A. I just mention that in passing. So that again shows that we were having an impact. People were aware of what was going on.
Q. Well
A. You're quite right to say that we did not consult him in advance of the league table publication of the league table.
Q. Then your reply is at tab 34.
A. Yes.
Q. On the second page of that, in paragraph 3, you make it quite clear that you're not going to provide the identities of individual journalists or details of the transactions.
A. And the reason for that was section we haven't talked about this today, I'm afraid, but section 59 of the Data Protection Act.
Q. If that
A. If I just say straight away, because this is important, when we published the report the second report, we had a lot of debate inside the office as to whether we could even name the newspapers, and in the end the advice I received was that given it's a statutory function to lay a report before Parliament, given the wording of section 59, it would be safe not cut and dry, but they thought it would be safe to identify the newspapers concerned but categorically not safe to identify the journalists, and even today in this Inquiry, I'm told that the names are the journalists are not being bandied around. For that reason, in my exchange with Mr Caseby and my exchanges with the Select Committee, with my exchanges with other people, the Press Complaints Commission and so on throughout this, I would say, "I'm very sorry, I'm not permitted to share the details of what we obtained under search warrant powers." I regretted that. I felt it was uncomfortable and difficult, but Section 59 was taken incredibly seriously inside my office. We had cabinet papers. We had some highly sensitive stuff. We were absolutely focused all the time that nothing should leave the office which should not leave the office. It's a criminal offence for the Commissioner or a member of the Commissioner's staff to break Section 59, so we took it incredibly seriously, and that's the reason why we felt unable to share the details with Mr Caseby of exactly who the journalists were.
Q. And that remained your position throughout your tenure as Commissioner?
A. Indeed.
Q. I know that my successor has now given, I think, your clients and Associated Newspapers access to the papers and he also gave the chairman of the Select Committee some access, and I can understand how he reached that conclusion, because the Section 59 does allow that in again, back to our public interest terms. But the advice I was receiving throughout was that that had to be kept sacrosanct.
Q. So that
A. There's no disagreement. Time moves on and that's his judgment now.
Q. Then you go on in that letter to apologise for the error in the figures.
A. Yes. There was one I mean, let me say straight away that we spent nearly a month going back on the figures. We had an investigator who was a scrupulous person who looked at it very closely indeed, and he discovered there had been one error. It appeared to have arisen from the original inputting, which Mr Owens had contracted out to the company which inputted the data into the database. And we put our hands up straight away and said, "That's the only mistake we've found. We apologise." Unqualified apology, and we put out the correction to everybody who received the report. I was very distressed at that. It was unfortunate, to put it at its lowest. The investigator concerned, his boss came to me and said that he'd been mortified that it got through. But there it was; it was a mistake and we apologised to your client.
Q. You will appreciate from the Sunday Times' point of view it's not a terribly happy situation about the basis of the numbers and, secondly, the numbers had turned out to be badly wrong.
A. Well, we corrected them and we wrote to Mr Caseby, I wrote to him personally, and I didn't receive any further correspondence from him.
Q. I'm not going to spend any time on figures, Mr Thomas, but can I just ask you this question: the total number of transactions in the league table in "What price privacy now?" we all know was 3,757, and in the draft letter we have to Mr Ashcroft under the sorry, Lord Ashcroft under the Freedom of Information Act, the total number of definitely illicit, I think is the tag, transactions is over 5,000. Are you able to explain any connection or relation between those?
A. No, I can't. I wasn't involved in the direct compilation of this table. I know the figures don't completely match together. I've done my best to explain in my witness statements what I think was happening there, but I think I've said several times, you know, if this is important to the Inquiry to narrow down precisely the numbers, then I would invite the Inquiry to ask the current Commissioner to share all the material with you. I am aware that this Inquiry has had the database from Mr Owens, and I have to say that I am extraordinarily surprised that he held that database. I don't know the circumstances, I've read his statement, but I understand the current Commissioner is ready and willing to share the data with this Inquiry, and it would seem to me that is the correct course.
Q. It's with that in mind, partly, that I'm not going to ask you anything else about the figures. A point that is picked up in the press articles we've referred to, but in the interests of time we've not gone to, is the issue of addresses and telephone numbers, and as has been pointed out a number of times, much of a journalist's job consists of talking to people in person or by telephone; you accept that?
A. Yes.
Q. And you can't do that if you can't find out where the person lives or what their phone number is.
A. But you can't steal their number.
Q. Well, unless there's
A. Or have it stolen.
Q. The question is whether the line is in the right place, and I just wanted to ask you about that. In the case of the state, the police force and various other manifestations of the state, they have a huge panoply of powers to obtain information.
A. Mm.
Q. The journalist, as Mr Leigh pointed out the other day, doesn't have any powers to obtain information; all he can do is ask. Do you think that in potentially criminalising the obtaining of basic information as to where somebody lives and what their phone number is, the law might perhaps be going too far?
A. Well, first of all I would say it has been the law since 1994. It is not my job as was the regulator to question whether that's right or not, but I have to say instinctively it seems entirely right to me. If somebody bribes somebody inside a telephone company to get information out, that seems to me deplorable, and that's the lower end of the scale. We're talking also about health records, criminal records, tax records and so on.
Q. I
A. You're talking purely
Q. (overspeaking) strictly to address telephone numbers?
A. I say at the very least, just to put it at its lowest, this Inquiry's looking at ethical practices. At the very lowest, it seems to me that a journalist who is regularly using a private investigator, paying quite large sums of money for information which, at its lowest, prima facie was not obtained through legitimate means, that raises a serious ethical question.
Q. But you consider, do you, that it should be possible for somebody to make it almost impossible to find out where they live and what their telephone
A. No, I think there's a non sequitur in the point you're making. There are various ways in which people can be talked to, but people are entitled to a private life. That's what data protection is all about. If I choose to make my number ex-directory, it's not, as has been suggested, to prevent marketing calls. You put your name, your phone number on the telephone preference service and that excludes marketing calls. It's because you don't want the world at large to know your telephone number. That's why mobile phone numbers by and large are not in directories and so on. People are entitled to their privacy. And to have an organisation like British Telecom being penetrated, and they were the victims as much as anybody else, seems to me entirely wrong.
Q. I'm not aware of the facts of that, Mr Thomas, so we can't go into
A. Well, it was in our report.
Q. But there is a tension, isn't there, between people wanting to keep their numbers private and other people, journalists, who want to talk to them?
A. I wouldn't put it as high as a tension. Clearly some people want things which intrude into private life, and if I choose to keep my telephone number private, if I choose to keep my tax records private and bank records private, if I choose to give them to you or share them with you, fair enough. But the whole point of privacy, article 8 in human rights terms, data protection, is that people are entitled to have their personal data kept confidential by the organisation which holds it, and they have the right to choose who has the information. So I am resisting, I'm afraid, what you're saying. If you're saying just because a journalist wants to talk to somebody they should be entitled to breach that level of privacy, I don't agree.
Q. You've touched on earlier today the question raised by the News International evidence of databases of ex-directory numbers. There was mention of a number of 48 million. Can I just ask you to look at the paperwork on that. I think you have the statement of PS Armour(?), who is the editorial legal director at Times Newspapers. I don't know how you have it, but if you can go to exhibit 5 to that statement
A. Is that PS5?
Q. Yes.
A. Yes.
Q. There is there some material from an organisation called GB Group, and if you go three pages into the exhibit, there is what's really an article heading, "Blow to UK liquidity as ex-directory figure hits 58 per cent"?
A. Can I say, I only had these papers on Tuesday. I've had a very busy week before now. I've not looked at these in detail at all.
Q. No.
A. But I generally got the impression that here's a company claiming to have lots of ex-directory numbers and that surprised me.
Q. That is exactly what they're doing. They make the point that ex-directory numbers are now as high as 58 per cent and, because they're running a commercial service, they make the point that this makes it terribly difficult for creditors to track down their debtors. Three paragraphs from the bottom of that page, you see the wonderfully named: "GP Accelerator e-Trace V4 delves into the largest pool of landline and mobile telephone numbers available, sourced from a range of previously unavailable datasources and following close consultation with the Information Commissioners Office."
A. Well, I saw somewhere else a reference to "consultation". I mean, this means nothing to me. Lots of organisations make this sort of claim. If I was Commissioner right now, I'd be wanting to look into this in a great deal more detail.
Q. Yes.
A. Frankly, this quite shocked me. I only glanced through this, but when they're claiming to have a virtual database of every ex-directory number and mobile phone directories, I was really quite shocked by this. Your clients have done a great service to bring this to the surface, and I'm sure my successor will want to look at this very closely.
Q. It's not difficult to find, I can sure you, Mr Thomas.
A. Well LORD JUSTICE LEVESON But if it's right, Mr Rhodri Davies, presumably there is no need even to think about unlawful mechanisms to get telephone numbers in the future,.
A. Nor to pay ?65, ?70 to do it. LORD JUSTICE LEVESON We're not both arguing with him!
A. Sorry. MR DAVIES If I put the figures straight first, I think what this is saying is that they well, it is saying they have a database of about 50 million numbers and I think if one translates the paragraph underneath that, what you come out to is that about 10 million of them are ex-directory. So we're not actually talking about 48 million ex-directory numbers. They have a competitor which has much the same. The source of these numbers, fairly clearly, Mr Thomas, is I think something you referred to this morning. They are numbered which people have given out to websites, questionnaires, organisations they had dealings with or contract with in which they have not stipulated that the number must be kept private.
A. You're drawing me and I was drawn this morning to speculate. I don't know about this. I think these are questions, frankly, for the current Commissioner. If he's going to be called later, I am sure he can brief himself before he comes here and give you some answers, but I don't think it's for me now to comment on this.
Q. I'm sorry, this is on numbers. Mr Jay touched on the point this morning that in the whole database, and I haven't done this exercise, there are only about 300 I think he said 300 or a few hundred what one might call hard cases: criminal records checks, DVLA, friends and family, that sort of extreme end of the spectrum of what ought to be secure information. The rest of it therefore is almost entirely names and addresss and the yet more innocuous stuff.
A. No, I'm sorry, you keep saying innocuous, but I have to strongly disagree with that. If information has been obtained in the sorts of ways that Mr Whittamore was using from a data controller without the consent, that is a criminal matter. I'd also say it's an ethical issue, and to simply say because addresses and phone numbers are innocuous, that doesn't stand up. We gave examples in our report of battered women who were escaping their husbands and took enormous lengths to suppress their current address. Many people do not want their telephone number or mobile phone number bandied around. So just to say an address is innocuous or a mobile phone number is innocous I don't think stands up. If that had only been obtained by bribery or by blagging or by deception, then I do not think that's acceptable.
Q. I actually said "yet more innocuous"
A. You can put these on a scale, of course you can. I can understand that.
Q. Yes.
A. And you could say that criminal records and tax records are at one end of the scale and addresses at ex-directory phone numbers are at the other end of the scale. The point I want to press very firmly indeed is if they have been obtained illegally from inside British Telecom or any other phone company or likewise, then that does not stop it being a criminal matter, nor should it, in my mind.
Q. In that respect
A. Don't forget, the British Telecoms were amongst the strongest organisations saying to us, "We want to work with you to stop this sort of activity." They knew they were exposed. Section 55 is cast in terms of a data controller is the victim of the crime. The individual is obviously also a victim, but they were the ones, and also DWP, HMRC, the tax people, we had protocols with them. They're saying, "We are vulnerable. We want this to be stopped."So you cannot say it's just an address, it's just a phone number, therefore it's innocuous.
Q. The point and I'm not going to take time on it but it is a good deal easier, isn't it, to find a justification which could reach a public interest justification for getting the basic information to get hold of someone, things such as an address and a telephone number; justifying getting someone's medical records is an altogether different
A. I said earlier in one of Mr Jay's questions that when you start to look at the public interest test, you look at public interest justification, but it's also a balancing proportionality aspect there.
Q. Absolutely.
A. And that's why I speculated that the case of the minister resigning over a weekend and just getting his number, although prima facie that may have fallen within the section, that might well have been a case we'd say we wouldn't take any further because probably a good defence could be mounted.
Q. Yes.
A. But I have to say yet again, that was not typical, nothing like typical of the cases that we were seeing. And although you made the point that the majority of the cases were, in your language, only addresses or phone numbers, I would also say the vast majority were nothing to do with public interest considerations along the lines I've just mentioned.
Q. Just so we agree on the analysis, I think this is right, it is as you say a balancing act, and you're looking at the one side the strength of the privacy interest, which varies between addresses and medical records, and on the other side the strength of the public interest in obtaining the information.
A. I wouldn't want to finalise that as analysis, but it's along those lines, yes.
Q. Finally you tell us at paragraph 42 of your first statement, and you've said this again today, that your goal was to stamp out press misconduct for the future and that was a goal which you had set upon in 2006 or thereabouts?
A. Sorry, could you
Q. It's paragraph
A. My goal was to stamp out the market. I don't know that I that was talking to the Press Complaints Commission. My wider goal was focused on the market as a whole.
Q. Yes, sorry.
A. But my goal with the PCC, yes.
Q. I'm afraid I am focused on the press. So far as the press was concerned, you wanted the press to clean up its act?
A. Yes.
Q. For the future?
A. Yes.
Q. And that is in fact what you got?
A. Apparently. I may have stuck my neck out by saying that anecdotally it appears to have been cleaned up, but just let me quote from the current Commissioner going to the Justice Committee in October. He said: "My great concern about Section 55 is not very much to do with the press, but there's lots and lots of evidence of Section 55 being breached on a quite routine basis and it's now mainly about financial service, debt collection, claims management companies and also some quite worrying interference with the course of justice, perhaps attempted jury nobbling or witness tampering, that's the real issue." So he is saying, and he's in the driving seat now, that it appears that the press are not heavily engaged in this activity, and I am that was certainly my impression also in the last couple of years of my tenure. MR DAVIES Thank you very much, Mr Thomas. I have no more questions. LORD JUSTICE LEVESON Thank you. MR CAPLAN Sir, I hope just five minutes, or I'll be very unpopular. LORD JUSTICE LEVESON Certainly. Well, don't worry about your popularity. Too much. Just a moment, Mr Caplan. We're going to have a minutes before we do it. (4.35 pm) (A short break) (4.37 pm) LORD JUSTICE LEVESON Yes, Mr Caplan. Questions from MR CAPLAN MR CAPLAN This morning you were asked a good deal about what you had not done. I want to ask about what you did do and what the result was. Firstly, please, you told us that your concerns were not just about improper access to personal data by journalists but by others in society as well; is that right?
A. Indeed.
Q. Would they include solicitors' firms?
A. There were some examples of law firms, particularly in the matrimonial area. Indeed, I had a letter from a Court of Appeal judge saying that he was starting to ask questions where evidence was coming in to cases where prima facie it had come, for example, from a bank account, which shouldn't have come, and saying unless the parties could demonstrate they received the information lawfully, he wasn't prepared to allow it to be admitted into evidence.
Q. Banks?
A. Mainly finance houses, but they were often subsidiaries of banks.
Q. Insurance companies?
A. Yes. There's an example of an insurance company in our report, which I needn't go into detail now, but a quite shocking example of where somebody's mother 85-year-old mother was telephoned by a blagger and was impersonating a tax official saying that her son was entitled to a tax refund. That was taped and the BBC broadcast that example.
Q. One other example: local authorities?
A. Yes, we came across some examples of local authorities who were using this sort of activity to chase up council tax and all that was stopped as soon as our report was published.
Q. You were keen, were you not, obviously as Commissioner, to promote a better understanding about data protection and to change working methods and attitudes. That was your principle goal?
A. Yes. There's quite a big question there. When I started, data protection had quite a poor reputation. It was seen as a bit nerdy, not taken very seriously across many organisations. I think my office probably had some responsibility. I used to say that, you know, we were seen outside as the temple of data protection and being the high priests of data protection, and I wanted to destroy that sort of approach, and therefore I was trying to make us much less esoteric, much more avoiding the technical language. I mean, a data subject is a man, a woman, a child, not a data subject. So I took a much more practical down to earth approach. Our slogan was that we are here to help organisations who want to get it right, but we'll be tough on those organisations which don't want to get it right, and I think I started, quite soon after I became Commissioner, in our speeches, our strategies, annual reports and so on, to say: this is going to be the new approach to data protection.
Q. But again, taking things fairly shortly after the length of time you've been giving evidence and at this time of the day, summarising, you must have been fairly pleased, were you not, with the response of the press to your attempts to promote a change in working methods and attitudes?
A. Well, we're not going to go over all the same ground today clearly.
Q. No, I don't want to.
A. But it seemed a tough fight at the time and it didn't seem we were making very much progress. But I suppose my meeting with Mr Dacre, which I mentioned earlier
Q. Yes.
A. He was very, very forthright on that occasion. I give him credit to that and he said, "You've really told us things we didn't know about before. We're now really cleaning up our act."
Q. Yes, and in 2006, you published two reports and you yourself have told this Inquiry in your statement that since 2006, until you left the office in 2009, you really had few or no complaints, I think, regarding the press; is that right?
A. I think that's broadly right. There may be one or two, but not many. Although I have to say if I can say now, your clients' witness statement said they were still using Mr Whittamore in 2007. That really surprised me. It may have been a mistake but I hope it was a mistake.
Q. Deal with the evidence in a minute. I'm going to come to what happened with Associated. But as far as you understand it and we'll hear from Mr Graham, you've mentioned the evidence he gave to one committee there's relatively little cause for complaint about the press since he's taken office in 2009?
A. That's right, and that's why I would love the press to say now: "Let's bring the stronger sanction into effect right now." If the Daily Mail were to write an editorial next week saying, "All this outrageous activity going on, we need a tougher approach", I suspect the government would move within about three weeks. And it would be wonderful to have the press if we hadn't mentioned the press in our reports, we might have achieved our objective rather sooner.
Q. Yes, but
A. That may have been a big mistake on our part, to have included the press. If we had just focused on all the other activity and said that people are being damaged by this activity, I suspect we would have had our law passed in 2008 without any difficulty and it would be wonderful if your clients would support such a campaign right now.
Q. Well, I'm sure they hear what you say. The fact of the matter is you've already, I think, agreed that there can be a principled approach on both sides of the argument
A. Yes.
Q. in relation to imprisoning journalists for preaches of data protection. The fact of the matter I want to focus on, please, is this: what actually happened after the publication of reports. I represent, as you know, Associated Newspapers. You do know, don't you, that from 2007 Mr Dacre banned the use of private investigators by anybody working for Associated Newspapers?
A. I don't know the exact dates, but when I met him in 2008, he told me he had taken quite a few steps in his own group and he understood elsewhere and that sort of training, changing contracts for editors and journalist he is, and so he was giving me the aggression then that quite serious steps had been taken to stop this. I can't recall being told specifically a ban on investigators, but I think that's come up in the documentation.
Q. One other thing which you might hope to see, I suppose, in an organisation, is to introduce into new contracts of employment a provision that the employee cannot breach or must not breach the Data Protection Act, as one way of enforcing it?
A. Yeah.
Q. And to send letters to existing staff notifying them of the importance of adhering to the Data Protection Act and requiring them to sign it to confirm their understanding of the letter. Those are the kind of steps you'd expect to see; is that right?
A. Yes. I mean that's all very welcome news.
Q. Did you know that those were steps that were taken by Associated Newspapers?
A. Well, I mentioned the meeting I had with him after the battle had finished, as it were, in June 2008, and he shared that sort of approach with me, and his speech at the end of 2008 at Bristol said the same sort of thing and I really did genuinely think there they are cleaning up their act.
Q. Yes, he said to the Society of Editors that the industry had been warned.
A. Yes. It had taken quite a long time, it had been a bit begrudging and a battle, but I did feel at the end of the day we had been vindicated in our approach.
Q. Now, I heard what you said obviously in relation to the Press Complaints Commission, but the fact of the matter is that in 2007, it changed its code of practice to include a provision requiring, as a rule of professional conduct, compliance with personal data protection?
A. Well, I think the amendment was more that digital information was included in the definition of stuff which should not be accessed by subterfuge, and I welcome that and there is a letter on record welcoming that. I still felt it was rather buried away. It wasn't quite highlighted in the way I would like it to have been, but I do accept that the code did finally include something explicitly addressing this issue.
Q. Of course, Operation Motorman and Mr Whittamore's activities and the information he was gathering between the years 2000 and 2003 are almost ten years ago. But would you agree with this: that the fact of the matter is that since the publication of your report in 2006, this is a story of the press generally responding very well to your approaches for them to change attitudes and practices?
A. Well, I don't want to put out a hostage to fortune there. I'm not not engaged in these matters directly now but I've noted and shared with you what the current Commissioner has said. I hope that is the case. I hope it lasts and becomes permanent. But we've had last-chance saloons before and I can't be totally confident it's going to prevail indefinitely.
Q. I'm not asking you to look forward. I am asking you to look back.
A. But
Q. Whilst you were Commissioner from 2006 onwards after the publication of your reports, what I said would be true, wouldn't it?
A. Certainly by the time I retired in 2009, my impression was that this was being taken a great deal more seriously across all the press, and I welcome that and the sort of steps you've mentioned I was being told were put in place. I haven't checked, nor has my office, but that is the encouraging signal. Whether that's sufficient to eliminate the practice forever, I can't tell you. MR CAPLAN Thank you very much.
A. Could I just raise this question, if I may, because I was very concerned to see Mr Whittamore being used in 2007, two years after the trial. LORD JUSTICE LEVESON Well, that's a matter which we may look at.
A. I raised it my statement. That's why LORD JUSTICE LEVESON You raised it. Mr Caplan will deal with it to such extent as he feels is right.
A. Sorry. LORD JUSTICE LEVESON But I'm looking at a much broader picture, as I'm sure you appreciate. Thank you very much. Thank you, Mr Thomas, that's a very long ordeal
A. Sir, there was one matter I was told I would have a chance to I understood I had a chance to share with you? LORD JUSTICE LEVESON What's that?
A. I was very, very concerned indeed at the reporting of Monday's hearing in the Independent newspaper on Tuesday of this week. It came very close indeed to accusing me of misleading Parliament. It quoted the legal advice which was revealed here on Monday, which was the 2003 advice, which said there may have been a case against journalists, and the article in the Independent on Tuesday said that this contradicted what I had told Parliament. When I went to Parliament, I was relying upon the 2005 advice, which has come out today, and I did want to place on record my very strong concern indeed at the misreporting of my position. I may have to pursue this further, but I did alert the journalist yesterday that I would be addressing this matter today, and I cannot tell you how important it is to me that out of this Inquiry, I have been accused of misleading Parliament, a very serious and grave matter. I deny that entirely. LORD JUSTICE LEVESON Yes. You will appreciate, I think, that I'm not entitled to enquire
A. I'm not asking any more at all. LORD JUSTICE LEVESON Thank you very much. Thank you. Right, I don't think we'll be very long. Mr Jay, Monday? MR JAY Monday, yes, two matters. The first witness is Mr Mazher Mahmood. The proposal which we have made and which we think is appropriate in relation to his evidence is that there should be no filming of it. It follows that there will be no transmission onto the simultaneous web feed or to the marquee. But there's no reason we see why his evidence cannot be audio streamed. However, the public and press should be excluded from the Inquiry room whilst he gives his evidence. We think Mr Mahmood may be asking for somewhat more, but the protections which we have just proposed we believe are entirely sufficient. LORD JUSTICE LEVESON Yes. Do you know about this, Mr Rhod SPEAKER: I know about this. LORD JUSTICE LEVESON Yes? SPEAKER: And the arrangements have been agreed between the Inquiry team and ourselves. LORD JUSTICE LEVESON So you are content with what Mr Jay just said? SPEAKER: Yes, we don't want any filming and we don't want any members of the public or press. We are content for the core participants and lawyers to be here, as in HJK's case. LORD JUSTICE LEVESON Yes, but it will also be audio. SPEAKER: Yes, we're content. LORD JUSTICE LEVESON Thank you very much indeed. MR JAY Sir, there's one other point. Would you be prepared to sit at 9.30 to deal with possible issues which will pertain to the following day's evidence? I will be prepared to sit at 9.30. It's just as well it's not tomorrow, having sat a fair day today. Thank you very much. I hope MR GARNHAM Can I delay you 30 seconds? LORD JUSTICE LEVESON That's all right. MR GARNHAM I want to draw your attention to the fact and to ensure you have had sight of some written submissions we have put in in relation to the evidence next week. I also want to refer to them so that they're on the record, so the fact that the submissions have been put to you by the MPS and the CPS is recorded on the transcript. I don't want to develop them. They're there to be read. LORD JUSTICE LEVESON Thank you very much indeed. Right. Monday. Thank you. (4.50 pm) (The hearing adjourned until 9.30 am on Monday, 12 December 2011)


Gave statements at the hearings on 09 December 2011 (AM) and 09 December 2011 (PM) ; and submitted 63 pieces of evidence


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