LORD JUSTICE LEVESON
Yes, Mr Jay.
The first witness today is Mr Toulmin, please. MR TIMOTHY JAMES TOULMIN (sworn) Questions by MR JAY
Make yourself comfortable, please, Mr Toulmin, and provide us with your full name.
A. Timothy James Toulmin.
Q. Thank you. Mr Toulmin, there's a row of files and paper in front of you. With luck, you'll find a file which is section A, with your witness statement in it.
LORD JUSTICE LEVESON
Yes. Before starting Mr Toulmin's evidence, I'd like to say that I'm grateful to him for recently reminding me that both in 2006 and 2009 I was one of a group of judges that met with a number of editors at an evening event hosted by the Press Complaints Commission and I'm happy to make the fact of my attendance at those meetings clear. Thank you.
Your witness statement is under tab 4 of that substantial file. It's dated 16 September of last year and signed by you. When you get to it, I'm going to invite you to take it out of that file.
Q. This is your formal evidence to the Inquiry, Mr Toulmin; is that right?
Q. I'm first of all going to go through your statement and then ask you some further questions. Mr Abell, of course, is the current director of the PCC, so he'll be dealing in detail with many issues which you cover less fully, but to be clear, you were the director of the Press Complaints Commission between March 2004 and December 2009; is that correct?
A. That's correct, yes.
Q. And you started working at the PCC in 1996, after leaving university?
Q. And now you have your own media relations firm?
A. That's right.
Q. Some questions on your witness statement. Paragraph 2.5, first of all. This is our page 02127. You point out that the PCC, in your view, has no legal powers and is not a regulator but the term "self-regulation" is often applied in relation to the PCC. What do you mean by the term "self-regulation"?
A. I think the "self-regulation" does have a virtue as a description, in that it explains to the public that the industry is behind what's going on. It's not making any claim to be a sort of formal statutory regulator. I think, taken with the very name of the organisation, which is Press Complaints Commission, it's establishing the fact that this is a service that deals with complaints about the conduct of the press, and it does have some sort of regulatory functions in that it takes complaints under a set of rules known as the code of practice and has some, albeit limited sanctions, in that it issues rulings against newspapers and it builds up a sort of caselaw of acceptable press practice and news-gathering and what's published in regards to privacy and so on. So I think that self-regulation is a sort of reasonably well-established concept, where an industry comes together and establishes a mechanism by which it will be externally regulated, if that's the word you want to use. But I just don't think it is a regulator because I think that conveys something different. That implies some
LORD JUSTICE LEVESON
I'm sorry, Mr Toulmin. I don't understand that. It's either a regulator or it isn't a regulator. Do you think it's a regulator?
A. I think it's a complaints body and I think I'd prefer to I've always preferred to think of it, really, as I've explained to Parliament and up in other places, as a sort of ombudsman. It's an industry coming together to create a complaints scheme, really, I think, and so I don't think it's a regulator, no.
Could we try and break that down? There are two possible issues here. First of all, there's the source of power. The source of power, is that right, is based on consent of the industry; is that correct?
Q. Does it flow from that that the PCC cannot impose standards on the industry because it depends ultimately on the voluntary participation and consent of the industry?
A. Well, the starting point is the industry. The industry came together in 1991 in rather different circumstances and agreed that there would be this body. It sort of gave up some of its sort of right to freedom of expression, I suppose, and agreed to fund it and so and it agreed a sort of limited remit for the PCC. The starting point is the industry, yes, and it does carry out its functions with the consent of the industry, and I think one of the main problems at the moment that you're seeing is that that sort of consensus around it has obviously been fractured and that you have a major group outside the system.
Q. That's one of the issues, and obviously one that needs to be addressed, but to continue through your statement, before possibly coming back to that theme, paragraph 3.1 you have on an already said this the bulk of the PCC's work is the handling of complaints, but it does have a role in advertising, in training journalists. This is 3.2. Paragraph 4, please. You make the point expressly in 4.3: "There is currently no single organisation responsible for regulating the UK press and there never has been." Could you elaborate on that, please, Mr Toulmin?
A. Well, I think the point here really is that the press and editorial content in the press is subject to a number of different rules and laws. There's the code of practice, which is voluntary, as you say. There is the Data Protection Act, which the Information Commissioner is responsible for, obviously the laws of libel, which the civil courts attend to and the criminal matters of phone hacking and payments to police and so on. So there are a number of laws which regulate what the press can do, and then there is the PCC over and above that, if you like, which is concerned with those other issues that the press has sort of imposed on itself.
Q. Is it really over and above, or rather to the side but not in fact regulating in the strict sense of the term?
A. Yes, I'd think that's right, yeah.
Q. In paragraph 5, phone hacking again, I'll come back to this, but in your view, in 2007, was there an investigation by the PCC into phone hacking at the News of the World and possibly elsewhere?
A. No, there wasn't, and we all took very great care, I think, to explain what was going on at that stage. The PCC has absolutely no powers to be investigating whether there were other instances of phone hacking. The PCC was faced with a decision, in the face of quite a lot of scrutiny about this subject, about whether to do nothing on the grounds that the police had looked at the matter, and that it was in fact a criminal matter which was best dealt with by the police, or whether it could given that this incident seemed to suggest, at least on the face of it, that there was a sort of attempt to subvert the code and the law at the News of the World by outsourcing this sort of activity to third parties, whether it could the PCC was in a position to establish what was going to be done to make sure that that situation wouldn't arise again, and the whole industry took note of that and to set down recommendations to ensure that wouldn't happen again.
Q. What would you use fairly to describe or explain the PCC's activity in relation to the News of the World in 2007? If it wasn't an investigation, what was it?
A. It was an exercise, really, and it was an exercise to produce a forward-looking report to try and establish some principles, probably by which sort of internal governance could be enhanced in order that these sorts of unsatisfactory things didn't happen anywhere else.
Q. An exercise in what though?
A. An exercise in establishing existing degrees of governance around the industry, to draw lessons from them, to make recommendations to the industry to ensure that such matters wouldn't be repeated, because it seemed like a sort of I suppose a sort of a governance problem, really, at the News of the World. Something had happened which gave rise to this situation between Goodman and Mulcaire. The PCC went into this exercise in the expectation that the police had uncovered the extent of it, and I think you know, obviously, subsequently that turned out to be not the case, but at the time that the PCC started this in 2007, it was thinking, you know, what could it do usefully in the public interest to ensure that people had taken the right lessons from this.
Q. So was it, in any sense, an exercise in seeking to ascertain what had happened at the News of the World?
A. We weren't going over the facts of the Mulcaire/Goodman case, which had been dispensed with by the court, but I think there were questions about how that situation had arisen, again in terms of sort of culture and so on.
Q. Okay. Again, we'll come back to that. In section 6, Mr Toulmin, you deal with the strengths and weaknesses of the PCC, and you point out quite succinctly in 6.1: "The strengths and weaknesses of the PCC are two sides of the same coin. Its lack of a statutory basis means that it can act quickly and flexibly when issues arise without getting bogged down but it also means that the system is, ultimately, voluntary Can I just understand the first part of this, linking the lack of a statutory basis with the proposition that it act quickly and flexibly. Why are those two notions joined in any way?
A. I think that if the it's a completely non-legal system, so it's accessible there's no reference to the law. Members of the public can use the system and engage with it and get things resolved very quickly, on the hop. You can see something on the newspaper website today and phone up and it can be resolved this afternoon. It's a very quick system, and I think I just think that the PCC can adapt as well structurally very quickly because it's about discussing with the subscribers of the code, the industry, about how it can change, and you've seen this in regard to changes in its remit and so on. So it's by no means a sort of criticism of the of any legal system. It's just that if because it doesn't have a statutory basis, there needs to be no reference to Parliament or anywhere else in order to take it forward.
Q. You're almost suggesting though that the absence of a statutory basis means that there aren't constraints on its ability to act. It's almost as if it has greater power than if there were a statutory basis. You're not saying that though, are you, Mr Toulmin?
A. No, I'd prefer really what I have said, which is that it's flexible. It can react quickly to either complainants or to events.
Q. Because of course the legal position in relation to the PCC it's a company limited by guarantee, isn't it?
Q. I'm going to do this quite briefly but can I ask you, please, to look at bundle B, section 1.
Q. Yes. Under tab 5, I hope you'll find the memorandum and articles of association of the PCC. The PCC obviously has statuses in law. It's a company limited by guarantee, incorporated under the Companies Act 1985. If one wants to ascertain the source of its powers, it's really in clause 3, isn't it, Mr Toulmin, which sets out the objects of the company? Do you see that? Page 33911. Are you with me?
A. Oh right, okay. Yeah, I have which page is it the articles are on? Oh, you're there.
Q. It's the memorandum of association.
A. Yes, I have those up. Which paragraph of those are you on?
Q. It's article 3, 33911, the objects of the company.
A. Oh yeah, yeah. Yes, exactly.
Q. Quite wide: are to consider, adjudicate, conciliate and resolve or settle by reference to the code of practice promulgated by PressBoF, for the time being in force, complaints from the public of unjust or unfair treatment by newspapers, periodicals or magazines and of unwarranted infringements of privacy through material published [I paraphrase there] or in connection with the obtaining of such material and to publish or procure the publication of any findings of its adjudication An amendment was subsequently introduced, which I'll read out: and to establish such procedures as it may see fit from time to time in relation to the foregoing and for the effective discharge of its functions Then it continues: for the purpose of ensuring that the press of the United Kingdom maintains the highest professional standards and having regard to generally established freedoms, including freedom of expression and the public's right to know and defence of the press from improper pressure." So the PCC's powers are basically found there, aren't they? Would you agree?
Q. Then there are various ancillary powers. For example, in A, power to publish an annual report, B, to accept subscriptions, and then M, at 33914 one often sees this: "To do all such other lawful things as may be incidental or conducive to the objects of the Commission and/or shall further the above objects or any of them." So the position is if one wants to see what the vires is or are of the PCC, one really needs to look no further than clause 3, I suppose read in conjunction with clause 53 of the articles, the current version of which is under tab 11, I think. Just bear with me. Sorry, no, it is under tab 6.
Q. Do you have that?
A. That's right, yes.
Q. These are the articles of association, the latest version. I understand they haven't been amended since 2006. If you look at clause 4, the objects clause, at 34555: "The Commission is established for the objects expressed in this memorandum of association." We've looked at the key provision of the memorandum of association. That's clause 3. There are various positions which follow which deal with membership, which I'm going to ask Mr Abell to address. Clause 53 may be of particular interest at 34564. Do you have that?
Q. 53.1: "The primary function of the Commission shall be to consider and adjudicate, conciliate and resolve or settle by reference to the press code of practice promulgated by PressBoF, for the time being enforced, complaints from the public of unjust or unfair treatment by the press [I paraphrase] and of unwarranted infringements of privacy through material published in the press or in connection with the obtaining of such material but shall not consider complaints of any other nature." So the starting point is clause 53.1 broadly reflects article 3 of the memorandum. The primary function is to adjudicate and sort out disputes by reference to the code of practice. The code of practice fully sets out the relevant standards, doesn't it?
A. Mm, it does.
Q. And the relevant standards, as we well know, cover issues such as accuracy, privacy, harassment, subterfuge, all calibrated or most calibrated save, of course, for accuracy against the issue of the public interest; is that right?
Q. So the powers are fairly wide, aren't they, at least in terms of the conciliation and adjudication function, would you agree?
Q. Can I ask you about 53.1(a), which was introduced in 1994?
Q. "It will shall also be the function of the Commission to consider and pronounce on issues relating to the code of practice, which the Commission in its absolute discretion considers to be in the public interest." I think that should probably say "interest" but that doesn't matter.
Q. Was this not the source of the power which was exercised in relation to the "phone-hacking investigation" in 2007?
A. That's right, yes.
Q. The use of the verb "consider", that would be wide enough, wouldn't it, to embrace an investigation; would you agree?
A. An investigation into phone hacking itself or the exercise the PCC carried out?
Q. The exercise that the PCC is carrying out as part of its functions, because we're looking at 53.1 (a), includes the ability to investigate because "investigate" is accommodated by the verb "to consider"; would you agree with that?
A. I'd certainly agree that that clause was what the PCC was relying on when it embarked on that exercise, yes.
Q. Well, would you agree that the verb "to consider" is capable of accommodating an investigation?
A. Well, the
Q. Can I be clear?
Q. By which I mean ascertaining relevant facts and then drawing inferences and conclusions depending on whatever findings of fact are reached?
A. I think it's right to say that's not how it has been taken and that the purpose of that clause, which I think was it was before my time, but I think it was inserted at the request of the Commission, which was finding its remit rather limited, was to be able to articulate thoughts about the code of practice and about the complaints it had been receiving, hence the development of a system of guidance notes around the particular clauses of the code of practice.
Q. That would certainly be within 53.1(a) general pronouncements of standards, as a matter of language, is in 53.1(a) but also, I would suggest to you, it would be capable of catching an investigation into either the specific issue or a generic issue, such as subterfuge or, more particularly, one manifestation of subterfuge, namely phone hacking. Would you accept that?
A. Well, I'm not sure, really, and I think if that had been put to me at the time, I would have wanted to have taken some legal advice.
LORD JUSTICE LEVESON
Well, what does it mean then?
A. As I've explained, I think it means that the PCC has and certainly that's what the motivation was, from my understanding was to be able to talk about issues around the code that didn't necessarily relate to an actual complaint but that were firmly rooted in the code, and hence the provision of guidance notes and so on, and the sort of training things that you've heard about elsewhere.
Sometimes, though, it's necessary to find out what happened or is still happening in order to make a relevant pronouncement, and that's what you were doing, weren't you, in 2007, in relation to phone hacking, would you accept?
A. Well, I think the phone-hacking exercise sort of speaks for itself, in a way. It's all the questions that the PCC asked have been well established in the public domain and I think it was very much, as I said before, with the sort of general public interest in mind, that the sort of public had a right to know that these things weren't ongoing or going on elsewhere and that sort of lessons would be learnt more broadly.
Q. Well, in the end it's a legal point what this means, but it's also worthy of note that whoever drafted this wanted to confer the Commission with as wide a power as possible, because we see the phrase "in its absolute discretion".
A. Well and in the Commission's discretion, I mean, whatever that means and you're right, there's a sort of legal point there whatever it means, on this occasion it was taken by the PCC in a particular way to carry out the exercise that it did.
Q. It's not in its "reasonable discretion" but in its "absolute discretion". We see that, don't we? Okay. 3.3. This is the issue of complaints: "A complaint may be made by an individual or body of persons but in addition to the requirements of 53.1, shall only be entertained or its consideration proceeded with if it appears to the Commission that (a) the complaint is made by the person affected or by a person authorised by him " That's defined in 53.9(b): "The person affected means, in relation to any such unjust or unfair treatment, the person named or identified in the relevant material though was the subject of that treatment."
Q. So the person has to be specifically identified, and again, in relation to privacy, a person whose privacy was infringed. So that appears to be quite narrow, doesn't it?
Q. Although 53.4, on the next page: "Notwithstanding the provisions of article 53.3, the Commission shall have discretion to consider any complaint from whatever source that it considers appropriate to the effective discharge of its function." So that immediately loosens, doesn't it, the effect of 53.3(a), that even if you are not the person affected, as defined in 53.9, you have a discretion or the Commission, rather, has a discretion to consider a complaint if it considers that appropriate to the effective discharge of its functions. Are we agreed about that?
Q. So the issue of third-party complaints, which appears to be somewhat of a self-denying ordinance, there's always a power to break free of the shackles which appear to be located in 53.3, isn't there?
Q. Then there's a further point on 53.3. It's (b) and (c), the power to entertain a complaint: "If it appears to the Commission that (b) the matter complained of is not the subject of proceedings in a court of law or tribunal in the United Kingdom and (c) where the matter complained of is a matter with respect to which the person affected has a remedy by way of proceedings in the court of law in the United Kingdom, unless in the particular circumstances it is appropriate for the Commission to consider a complaint about it." So is the way that works as follows: if in fact the complainant has already brought proceedings, then the starting point is that the Commission does not entertain a complaint; is that correct?
A. Well, if they've brought proceedings, it would be likely to fall outside the time limits imposed, I think, by these anyway, by this
Q. Is that right, Mr Toulmin? You have two months, on my understanding. You can bring proceedings for privacy almost immediately after the alleged infringement.
A. Ah, but would they be settled within that time?
Q. I think that's, if I may say so, a red herring. Assume a timeous legal action. If the complainant has brought an early claim in the High Court, that means that the starting point for the Commission is that the complaint won't be entertained; is that correct?
A. If it's currently the subject of proceedings, it wouldn't be entertained, yes.
Q. Then there's a related point, that if a matter could be the subject of proceedings, the Commission does not entertain the complaint, on the language of (c), because that person has a remedy, unless in the particular circumstances it's appropriate for the Commission to consider a complaint.
Q. Is that correct?
A. That's right.
Q. Virtually any privacy complaint under the code indeed, I would suggest every privacy complaint under the code could also be the subject of legal action, couldn't it?
A. I think that's right. Now, certainly. But when these were drafted, of course, it was before the Human Rights Act was in force. But you're quite right, that certainly overtook it. I think this is one of the reasons why it's very timely to be looking at all these arrangements.
A. Because clearly things have moved on considerably.
Q. This version has been unamended probably since the start. In 1991
Q. privacy wasn't substantially part of the common law.
A. That's right.
Q. But of course accuracy and misinformation are Venn diagrams with quite a lot of common ground in the middle?
A. I think so, and I suspect that's what they were more concerned about.
Q. I'm not quite sure, though, how this would work. What is the starting point then? Is the starting point: well, given that there is likely to be a remedy in the court for an accuracy complaint, the Commission needs to find a special reason to investigate the complaint? Or is it the starting point that this clause was somewhat out of date by the time you were on the scene in 2004, so you don't really apply it? How do it operate?
A. In my recollection, maybe once or twice a year only it was rare there would be a complaint of accuracy which struck the office of the PCC as being more suited to remedy through a complaint of libel. In conjunction with the Commission's lawyers, the Commission would consider whether that was the case and the PCC might decide not to entertain a complaint on that basis. But it was very rare. I mean, maybe twice a year is putting it too high. It hardly ever happened.
Q. Of course, each of these subclauses or subparagraphs can be disapplied in view of 53.4. That's also right, isn't it?
A. Yes, that's right, and I think everyone at the PCC tried to interpret these things in as broad a way as possible in order to accommodate the complaints from the public. Of course, those were the people that we were set up to help.
Q. Because the way a regulator would operate is it wouldn't necessarily be troubled by the fact that there were proceedings elsewhere because it's a question of imposing appropriate standards on the person regulated, although it's true that a regulator, if aware that criminal proceedings, for example, were taking place, would await the outcome of those criminal proceedings before wading in. The PCC's philosophy appears to be different. Would you agree with that?
Q. Can I ask you, please, about 53.7, which we saw, of course, in the memorandum: "Carrying out its functions in relation to complaints, the Commission shall have regard to generally established freedoms, including freedom of expression and the public's right to know and defence of the press from improper pressure." I mean, that would appear to be placing Article 10 considerations and almost constitutional rights on a particularly high platform, almost above Article 8 and privacy rights. Would you agree with that?
A. Well, it's interesting, looking at that clause, and I just it leapt out at me before when you first went into this. I don't really remember this clause, particularly. I mean, the code of practice, really, contains the relevant sort of balancing issues in terms of freedom of expression and then the restrictions that are put on that voluntarily by the code. That sets out the fact that there is a public interest in freedom of expression, and then sets out a series of limitations, but I don't think the PCC really, certainly whilst I was there, had reference to this clause that talks about the defence of the press from improper pressure. It wasn't something that sort of shot through the Commission's thinking in any way whilst I was there, certainly.
Q. If you were to ask any of the editors who were members of the PCC or the editors who were on the Code Committee and you drew this clause to their attention, they would say, "Absolutely", wouldn't they?
A. I'm sure they would be very pleased to see it, yes.
Q. Can I ask you, though, in relation to the lay members, or, as described here, the public members, to use their precise designation do you think most of the public members would have been in favour of this clause?
A. Well, I think it would be difficult to be a member of the PCC without having regard to the sort of fundamental importance of the free press but it's probably not for me to speak for them. I don't think, though, that they would regard have regarded their role as defending the press. I think everyone there was most motivated by helping the public remedy problems they had with a free press, and that obviously goes hand in hand with having a free press and being a supporter of it.
Q. But would you agree that the general thrust of clause 53 is to place freedom of the press, freedom of expression, as the first right, but then to say that if there is a breach of Article 8, that may be a justification for departing from the first right, which is the right of freedom of expression? Do you see the point?
A. I do see the point. I can honestly tell you it's not something I've ever considered. I think, however, at the heart of this system is the importance of the freedom of the press.
Q. When we're talking about the consent of the press, of course the whole philosophy of the press, unsurprisingly, is to be found in 53.7, isn't it?
Q. Because that's what they're there for, and it would be unsurprising if any editor were to say otherwise; would you agree?
A. I would agree, and of course these articles you know, the starting point of this system is the press. So the press would have had a very considerable amount to do with drafting these articles.
Q. Thank you. The mission statement, if I could briefly cover that. This is tab 13 of this same bundle, page 42676 in the middle of the page: "The PCC acts by There's a series of bullet points: negotiating remedial action." Is it an accident that that comes first or are these in no particular order?
A. I don't know. I'm not sure I think I didn't create this document, so I can't really answer that.
Q. Okay. "Issuing rulings, using published rulings as a means of guiding newsroom practice, publicly censoring editors for breaches of the code Is that separate from issuing adjudications against newspapers?
A. No, that's the same thing.
Q. Passing on pre-publication concerns, passing on requests to desist I paraphrase issuing formal guidance, then the next one: "Instigated its own investigations under the code in the public interest where appropriate." Do you see the use of the term "investigations" there?
A. Yes, under the code, yes.
Q. That must lock into 53.1(a), mustn't it?
A. I don't have that any longer, but yes, I think so, probably. It's important here, I think, to explain this, probably, which is that under the code there are about three clauses where the people who were aware of the breach of the code would not complain because they would have benefited from the breach of the code. For instance, payments to criminals, payments to witnesses in trials and so on, and that will capture those instances where there is an apparent breach of code that no one else is responsible for looking into, where the PCC may, of its own volition, investigate the matter, and I think the PCC probably there certainly were a number of examples of that.
Q. Yes. We're going to just have to skim-read the rest of this. This is an important document because it encapsulates, as it were, the mission statement. We don't have a date for it but are you able to assist at all when it might have been published?
A. I think Mr Abell might be better able to help. I don't know when this was pulled together and I don't think I've seen it before.
LORD JUSTICE LEVESON
Do you think this might postdate you?
A. It might do. I can't remember what this was created for, whether it was for this Inquiry or whether it was taken from the website or something else.
Q. I don't think it was created for the Inquiry. Can I ask you, please, about the next page, 42677, "Sanctions". Negotiation and agreed remedy, publication of a critical adjudication, and then a letter of admonishment from the chairman to the editor. So that's separate from the adverse adjudication, on my understanding. How often were letters of admonishment sent to editors?
A. Maybe half a dozen times a year.
Q. Can you assist as to the context, what sort of situations?
A. Letters of they would be when perhaps the editor had delayed dealing with the PCC, which obviously would be to the detriment of the complainant. They might be where the editor had not published a ruling with sufficient prominence. Those sorts of things.
Q. Is this right, usually in the context of the newspaper's dealing or handling of a particular complaint; is that right?
A. That would that's certainly my recollection, yes.
Q. May I draw your attention now to another document, which might indicate your approach to these powers. It's in section 4 of the B bundles, under tab 4. Do you have tab 4?
A. I do, yes.
Q. It's a letter to the editor of the Guardian from you, 21 February 2005. Of course, I don't think indeed I know we don't have Mr Rusbridger's letter to you, but it's pretty clear what he was saying from the second paragraph: "You have taken the position that the PCC should be investigating allegations or suggestions [I should be giving the page number here; it's 42422], that some editors have been employing clandestine and illegal means of getting stories, such as bugging telephones and intercepting mail or otherwise obtaining documents such as medical records which are confidential. I want to explain the PCC's position in relation to this." Then you refer to the constitutional position and these are the documents we've looked at. "When the PCC was set up as successor to the Press Council, it was entirely confined to dealing with complaints which were made to it although it could take up complaints of its own accord in specified circumstances. This was deliberately intended to avoid the Commission becoming a talking shop or involving ourselves in fruitless fishing expeditions." What did you mean by "talking shop" there, Mr Toulmin?
A. I don't know. This is a while ago. I think it's I think that what that probably captures is the idea that the PCC needed a complaint. It needed the engagement of a person to tell them why something was wrong and set off an investigation as to whether there had been a breach of a code, rather than spotting something that might have looked, on the face of it, to be to raise issues but without the involvement of the people ending up just sort of talking around in circles and speculating about what had happened. I suspect that's what it means, but without sort of being aware of everything, the concept at the time
Q. Of course, that's what regulators do, isn't it? Even if there isn't a complaint, they're proactive because they're looking for issues as they're thrown up from time to time
A. I think the PCC certainly talked about issues and was as proactive as it possibly could be, given the limitations put on it that we've talked about already.
LORD JUSTICE LEVESON
I'm sorry? It was as proactive as it possibly could be?
What about the fishing expeditions? What idea were you hoping to capture by expressing yourself in that way?
A. I can't really remember. It's seven years ago and it would have had a particular, I suppose, relevance to the letter that was incoming, but probably related to the PCC, which had no powers, obviously, no legal powers, to require the discovery of documents and so on, asking about asking newspapers about their compliance with the law and so on, where they would have just said, "Well, we can't we're not going to help you."
Q. They would fob you off?
A. Exactly. I think that's pretty much
Q. Can I just deal with the point "no legal power to require newspapers to provide you with documents". I just question, with respect, whether that's right. If you look at the memorandum, as we've done, and the articles, there is power to require a newspaper to provide you with documents because that's one of ancillary powers which flows from article 3 in particular of the memorandum. I think your point is there's no power to compel the newspaper. There's power to ask, isn't there?
A. Certainly power to ask and certainly, obviously and particularly, in relation to complaints about breaches of the code of practice, and I think this is about something that doesn't involve a complaint and does involve a legal problem.
Q. Even where there isn't a complaint, there's power to ask, isn't there?
A. I suppose the PCC could have asked, yes, but what this is saying is that it's likely in those circumstances, whatever they are, to have ended up being fruitless.
Q. But why? Would the editor's default position have been in relation to the PCC: "You're asking but I'm refusing"? Would it have been that?
A. I'm afraid I think it depends on the specifics of whatever the PCC was meant to be asking.
Q. If the PCC is carrying out an exercise within its powers your term "exercise", my term "investigation"
Q. the editor couldn't say to the PCC: "You're acting outside your powers", but could, I suppose, say, "I'm refusing to co-operate with the PCC"; that's possible, isn't it?
A. Indeed, and that's what we saw in relation to phone hacking, because the PCC obviously did ask those questions and they were answered in a certain way.
Q. I think you're making a different point. You are suggesting that the answer you got may not have been the full truth, but there's no evidence, is there, that the News of the World refused to co-operate?
A. That's right.
Q. Yes. Did you ever test
A. Actually, maybe they could have done. The PCC wouldn't have had this is the point the power to have compelled them to answer.
Q. I just wonder what situation might arise. The PCC is carrying out an investigation within its powers. The editor says, "No, I'm not going to co-operate." What's the next stage, do you think, Mr Toulmin?
A. Well, I don't think that ever happened, and so
Q. But you never tried, did you?
Q. Test it this way. Was there ever a case where the PCC asked an editor to provide documents or to attend for interview and the editor or the journalist said, "No, I'm not doing that"?
A. I think there certainly were cases where we asked questions in relation to specific complaints where it became apparent that there was legal action under way, for instance, where they would not where they would say, "This is being this is a matter of litigation and we aren't going to co-operate with you", and that was the correct order of things.
Q. Save in a case where the editor could say, "Because the matter is, in effect, privileged" because anything that the editor shares with you would have to be shared to the complainant and one could see why they might not want to do that I'm talking more generally. You're carrying out an investigation, imagine, where there isn't an extant legal complaint. You ask for documents or you ask for an editor to attend for interview, and the editor refuses to comply with your reasonable request. Did that ever happen?
Q. So these issues were never tested, were they? If it never happened, you never tested the boundaries of your powers, did you?
A. I think I think we certainly did test the boundaries of the powers in relation to phone hacking, and I think this is
A. talking about the motivation of why the industry set up the PCC in a particular way, which obviously predates my involvement with the Commission.
Q. But you're making it sound as if there's almost an expectation that the PCC would pull its punches and not test the limits of its powers. You're not seeking to create that impression, are you?
A. No. Well, no, I think I've just said the opposite, that the PCC did test limits of its powers.
Q. To continue with this document, can I paraphrase the point you make at 42422 at the bottom of the page.
Q. You're making it clear that your powers were expanded, and this is a reference, although it's not an express reference, to article 53.1(a). We've seen what that says.
Q. That's clear from the second and third lines on the top of the next page. In the next main paragraph: "There are other restraints on our capacity to act. We are generally not allowed to deal with matters which are better able to be dealt with by courts. As you will know, we interpret this provision in a very liberal fashion, especially in respect of privacy cases, but there may be some situations where it is more appropriate for the potential complainant to take court proceedings rather than come to us." I think you're saying there that in relation to privacy you would apply a liberal approach, but you've also said in relation to accuracy there may well be situations where the PCC felt that litigation was more appropriate; is that correct?
Q. Then you say: "Another problem is the law of contempt." And towards the end of that paragraph, in the middle of the page: "There have been occasions in the past where we've been threatened with the possibility of contempt proceedings if we proceeded with an investigation." Could you tell us a little bit about that?
A. I'm afraid I can't at all.
A. This letter was clearly drafted with the help of the PCC's lawyer and it goes into matters that I have no recollection of whatsoever and that's one of them.
LORD JUSTICE LEVESON
It's rather interesting. You speak about defamation proceedings, but there must be a qualified privilege to any defamation proceedings, if you're investigating in the context of your powers, mustn't there?
A. Well, as I say, I mean this is there must be. But this letter
LORD JUSTICE LEVESON
And qualified privilege would only be defeated by malice. Well, it would be something quite outstanding to be suggesting the PCC were guilty of malice, wouldn't it?
A. I would think I would hope so, yes.
The whole tone of this letter betokens, I would suggest, a restrictive approach to the PCC's powers under article 53 in particular, rather than an expansive approach and one which doesn't wish to test the boundaries. Would you agree with that observation or not?
A. Well, I think what this letter is clearly about is a suggestion that without a complaint the PCC should go into issues that are covered by the law, and I think it's an explanation of why those things are difficult for the PCC to get into.
A. But obviously it was written some time ago and subsequent to that there was the what the PCC did try to do in relation to phone hacking, which seems in hindsight to have actually been too much.
Q. Well, we'll come to that in due course. I ask you now some general questions about the PCC. Do you feel that sufficient prominence to the existence of the PCC and its powers was given by newspapers during your time as director?
A. No, I don't.
Q. Why do you say that?
A. Because one of the things that used to strike me and upset me, in a way, was hearing from members of the public who had a perfectly reasonable complaint to make or we could have helped in some way stopping harassment or helping them with their difficulty and they'd never heard of the PCC, and I think that was a matter of regret, because although it does have quite high name recognition, it's by no means universal, and the newspaper and magazine industry is in a very good position to be able to refer prominently to the existence of this organisation, and whilst they did do some good work and they published numerous free adverts at obviously expense to themselves, their regular references to the PCC were much less impressive, I thought, than they could have been.
Q. Of course, we know from the statistics that the volume of complaints have consistently increased. That may be attributable to a number of factors. It may be because the behaviour of newspapers has deteriorated but that, statistically, would be a wrong inference without other evidence, because on analysis it's really a neutral factor. It may be down to the fact that with electronic communication, it's far easier to complain by email et cetera. Do you feel that that I may be the real explanation?
A. I think that's a major part of it, because obviously the articles were replicated online and it's just a question of pasting a link and sending an email. In the olden days, we used to expect someone to cut out an article and write a letter and put it in the post. That's how things were conducted before email and the Internet.
A. So certainly that's a major factor.
Q. Another general question: where do you think real power lay in the PCC? For example, did it lie in the personality of the chairman, who for the majority of your time, as we know, was Sir Christopher Meyer. He was chairman when you arrived and he left six or seven months before you left.
A. Yes, that's right. When you say "power", what do you mean? In terms of sort of driving forward policy or on the complaints and
Q. Both, I think, Mr Toulmin.
A. Well, the personality of the chairman obviously, he's the main figure and they have their own ideas for reform. Christopher Meyer had a comprehensive set of proposals to take it forward and so did Baroness Buscombe. But the role of the PCC as a board shouldn't be underestimated. There are 17 people. They all have a say and a vote, and matters of complaints and the particular rulings, of course, were decided collectively by that bunch of people. So obviously the personality of the chairman is very important and they stamp their authority and they are the public face of the Commission, but a considerable amount of work and input is carried out by individual commissioners as well.
Q. Yes. Some people have suggested indeed, Mr Alastair Campbell has made this explicit because it's covered by his evidence that there were two key players. One of them is still a key player, Mr Paul Dacre, and at the relevant time, Mr Les Hinton, who was chair of the Editors' Code Committee between 1999 and 2008. If you wanted to see where power resided, one needed to look little further than those two men acting in conjunction with Sir Christopher Meyer. Would you agree with that observation or not?
A. I think what I'd say is that the PCC is operationally independent in the sort of administration of complaints. So there was never any interference from those two men, or indeed anyone else in the industry, about what the PCC should say about individual complaints. That was entirely up to the PCC. But the PCC, as we've established, is self-regulatory and the starting point is the industry. The industry funds, at arm's length, the operation of the PCC. So obviously those two figures are significant people in the industry and responsible for their companies' commitment to the system, but they never, a single time neither of them would phone me up, or anybody at the PCC, as far as I know, and suggest we should behave in a certain way.
Q. I doubt whether the influence would have been exercised quite through that route. It might have been correct me if I'm wrong, and you might not know through contacts with his Christopher Meyer. The power would have operated in that way, a tripartite access: Hinton, Dacre, Meyer. Is that how it operated?
A. I'm not sure how that how this curious sort of arrangement would have worked and nobody else be aware of it. There were the PCC, which is, incidentally, a very small organisation all these thousands of complaints it gets is you know, there are only five complaints officers working on these things and they're dealing with the bulk of the complaints, resolving them, producing draft recommendations and so on. I'm not sure how this influence at the top would have managed to have been effective without reference to the actual people who were doing all the work on the complaints. So I don't buy that at all. It sounds like a bit of a sort of absurd conspiracy theory, really.
Q. Your clear evidence is that in relation to the way complaints were handled, there was no influence of the sort that might be suggested?
A. Absolutely, and it would have been very obvious, because I think you've seen and the Inquiry have seen the relationship between the office of the PCC and the board of commissioners, and they were a clearly independent-minded people who came together to make judgments, and if that sort of subversive relationship had been going on at that level, I think everyone would have spotted it. Members of staff, members of the Commission. So it clearly wasn't there.
Q. We know almost by definition that the press members of the PCC, and of course of the Editors' Code Committee, would have been fully signed up to the conjoined notion of self-regulation and the importance of freedom of the press, but do you think that the public members were wedded to that idea as well, perhaps in the way that they were chosen?
A. To the concept of the freedom of the press?
Q. Why do you say that?
A. Well, because one of the I think one of the requirements of that was in the job description was that you had to buy into the principles of self-regulation and agree with the sort of fundamental importance of the freedom of the press.
Q. Because you, as director, probably weren't directly involved in the selection of the public members, were you?
A. No, not in terms of choosing them but obviously in terms of administering the system by which they would have seen the job advert, for instance. You know, that would have been run through my office.
Q. Maybe this is an unfair question, but if it is, you'll tell me. Did you feel that the public members were chosen because of their commitment to a particular philosophy; in other words, to put it very crudely, they would be toeing the line? Or do you feel they were chosen for their free-spirited independence and prepared to consider both sides of the arguments?
A. I think if you look at the list of people who served on the Commission, it's an impressive list of people who have either spent a life in public service or politics or they've done they've excelled in their field in one way or another. These aren't patsies at all. Obviously, I was in every single Commission meeting whilst I was a director and there would be some excellent knock-about debates. So these weren't people who were in any way cowed by the presence of a few editors, no.
Q. So when it came to decision-making perhaps in the more difficult complaints, the more controversial ones, is it your evidence that the editors' agenda, so far as there was one, did not overbear free debate and the views of the public members? Is that the position?
A. That's right, and they did have a very useful role. I know obviously people are very interested in what sort of role serving editors could have on this type of body going forward, and I think that they were an incredibly useful resource because of course they would bring that professional knowledge of how problems could arise. They would also be able to easily spot an editor who was coming up with a you know, sort of rather specious defence and so on. And also, when there were complaints upheld and criticisms, it was the presence of the editors that gave bite to it, because if you're having a sort of self-regulatory group system, the element of peer pressure actually is quite powerful. When editors lost rulings, they would frequently phone me up, often quite agitated, and the thing they would want to know was did the editors agree with the criticism, because that was the sort of professional, you know, judgment of their peers. So yes, that's being looked at, and it's important to look at it, but they were there for a reason.
Q. Yes. The issue of independence is one I need to address, but you're right to point out that regardless of presence or absence of independence, when you do have a criticism from within your peer group, that is all the more powerful. That's the point you're making, isn't it?
Q. Can I move off that topic to a different one, which is the
LORD JUSTICE LEVESON
Just before you do, one might ask this question, which is slightly different to the ones that Mr Jay has been asking: one of the criticisms that is made about the PCC by those who have been the victim, as they believe, of intrusive press behaviour is that there is nobody there on the PCC representing their interests, representing their line. It's all editors or persons who have been selected very much who buy into the principle of the importance of the freedom of the press. Therefore there's no balance. What do you say to that criticism?
A. Well, people who work at the PCC, whether they're on the board or the full-time staff, are motivated by trying to assist people who are having difficulties with the press, particularly those vulnerable people who perhaps can't afford a lawyer and so on. But it would be impossible to, I think, work there if you took the view that there should be no free press and I think it would have been difficult to find anybody, really, to have served anyway on the PCC that took that view, that the press perhaps was always in the wrong.
LORD JUSTICE LEVESON
That wasn't quite what I asked. It's whether there is anybody not who is going to say the press are always in the wrong but actually stand up for those who are critical of the press conduct.
A. Well, I think the PCC as a board has been critical of press conduct. If you look at some of the rulings it's made against editors on particular complaints, it's clear that it's critical, and you'll have seen a lot of evidence about how the PCC tried to reach out and anticipate where complaints might come from, particularly in vulnerable groups, in order to help them to get a fairer deal.
Okay. I just want to look at a couple of the annual reviews, Mr Toulmin. You go back to section 1 of the B bundle, which is where we were with the memorandum and articles of association, please. At tab 29, you'll find the 2006 review. This presumably is a document which you assisted in the preparation of.
A. Yes, it would have been, yeah.
Q. Can I ask you, please, just a couple of points. If you could look at 36319, the issue of phone tapping.
Q. Level with the lower hole punch: "This case illustrates the relationship between the Commission and the law, and how they can work well together to achieve different objectives. It also highlighted something that is often overlooked that although there is, rightly, no restrictive legislation aimed directly at journalists, newspapers and magazines remain subject to the general law." Then you say there are some exceptions. The objectives of the criminal law are, of course, obvious. What were the objects of the Commission which were being referred to there?
A. Which sorry? In that paragraph there, you mean?
A. Well, the very last phrase. The Commission it goes back to what I was saying earlier about the Commission was concerned that the case suggested that there was a sort of broader attempt to whilst the News of the World was apparently abiding by the code and, indeed, regularly phoning us up for advice on the application of the code and giving the appearance that the code was being abided by, that actually the Mulcaire/Goodman situation suggested that they were effectively subcontracting breaches of the code and the law and that was the concern that refers to.
Q. Of course, Mr Goodman himself was committing breaches of the code rather than subcontracting them, wasn't he?
A. Yes, but the Mulcaire situation, I think, particularly suggested that there may have been a subcontracting of breaches as well.
Q. In the next paragraph you say I paraphrase that you were minded to ask questions of Mr Coulson. He resigned and it followed that such an inquiry was no longer appropriate. Are you saying it was outside your powers to ask questions of Mr Coulson?
A. The PCC did discuss whether it should ask him any questions, and my recollection is that the PCC's powers being rooted in the consent of the industry and the powers given to it by the industry wouldn't have had any traction with him. Subsequently I said to Parliament that I think that was a mistake, and that at least the PCC should have been seen to ask him, even if he'd said, "No, I'm not helping you."
LORD JUSTICE LEVESON
That would have been tremendously powerful, wouldn't it?
LORD JUSTICE LEVESON
If he refuses to speak to the PCC.
A. Exactly, and this is why it wasn't my decision. It was the decision of the PCC but I personally have accepted that.
It might be said, again, to be taking a somewhat restrictive and timorous approach, that you don't go down a certain road because you feel your powers may not permit it but you never try and see what happens, because Mr Coulson could have said no and he would have been within his rights to have done so, but that itself, the act of saying no, might have created certain ramifications for him, wouldn't it?
A. Absolutely. No, I accepted that some time ago, and obviously, as I said, that was the decision that the PCC made at that time.
Q. Yes. Are you suggesting it wasn't your decision, it was made at board level or
A. I wasn't a member of the board; I was just the secretary of the board. I think that's important to bear in mind. None of these decisions were mine.
Q. Okay. I haven't dealt with the bit in bold higher up that column, Mr Toulmin. You say, five lines from the bottom: "At all times it made clear that phone message tapping was totally unacceptable unless there was a clear public interest reason for carrying it out." Of course, under the relevant statute, which you refer to a bit higher up, there isn't a public interest defence, is there?
A. No, I think that's right, and I suspect what this means, without having reference to what was said, was that phone message tapping was a breach of the law and the code, and I think that there was some discussion about that clause of the code, actually, containing a public interest exception.
Q. It's clause 10, isn't it? Clause 10 covers all subterfuge, including phone hacking, and suggests, indeed states, that there's a public interest defence in terms of the code throughout.
Q. But of course under the criminal law there isn't always a public interest defence. There is in relation to data protection but not phone hacking, isn't there?
Q. Was any consideration given to amending the code to make that clear, clause 10?
A. I can't remember. I mean, that will obviously be a question for the Code of Practice Committee, which will have all the relevant minutes and what was discussed, you know, as a result of all this.
Q. Can I look at the next page, Data Protection Act. The point that's made here is that the Commission and the Information Commissioner work in complementary fashion. The Information Commissioner is responsible for regulation of data protection; that's right, isn't it?
Q. Then you say, or rather the document says, towards the bottom of the passage in the middle of the page: "However, it also believes that That's the Commission?
A. Oh yes.
Q. the proposal to jail journalists for breaking the Act is disproportionate and would send out a worrying signal. In any case, the argument in favour of such a move has not been made out." There the Commission is adopting a specific position on a point of politics or principle, isn't it?
A. It seems to be, yes.
Q. It is siding clearly with the press on the amendment to Section 55, isn't it?
A. I can imagine that that was the press' position as well, yeah, absolutely.
Q. It was very strongly the press' position.
Q. Does that give us any insight as to the philosophy of the Commission, that it was keen publicly to place itself next to where the editors were standing?
A. I think it must do that, yes.
LORD JUSTICE LEVESON
But would you say that in every single situation? Let's assume that there is wholesale industrial invasion of people's privacy through data protection breaches. Why does potentially imposing a custodial sentence on such a person send out a worrying signal?
A. Well, all I can say in relation to that, I think, is that obviously at the time, however many years ago it was, the board of the Commission had met and discussed what it wanted to say, and that's what it was. I mean, I don't personally feel equipped to get into those sorts of discussions at the moment, given that I'm just a private citizen. The Commission wanted to that was what the Commission wanted to say about it.
Then the second point: "The evidence is some years old and incomplete. No assessment as to current practice, which would measure the success of the Information Commissioner's awareness-raising activities, has been undertaken." The suggestion being that the Information Commissioner should be making that assessment; is that right?
A. Is that it just says I think it just says that there's been no assessment.
Q. I just wonder whether this whole issue, namely current practice and assessing current practice, was not something which fell within the bailiwick of the PCC, in addition to whatever powers the Information Commissioner might have had?
A. I think this goes back to the articles again. The Commission's clearly defined role is to consider complaints about the code of practice, so I don't think that would have been appropriate.
Q. Why was it said that the evidence was incomplete? Can you remember?
A. I'm afraid I can't remember that, no. Possibly because the as, of course, has been well established, the identities of the people involved were never forthcoming.
Q. The 2007 review under tab 32. Can I deal with the issue of prominence, 36360. This is the prominence of publishing corrections, apologies and adjudications. We know that the code of practice was amended in January 2011 to insist that the location of publications had to be agreed with the PCC, which wasn't the clause when you were the director.
Q. Is this right: that if we're talking about the agreed resolution of a complaint, that ultimately it would be for the editor to decide, perhaps in negotiation with the complainant, exactly where any correction or apology would be published in his newspaper; is that correct?
A. I think at the time it was a little more rigid than that, in that there was a requirement in the code of practice that such things would be published with what they called due prominence, and that, of course, could be a matter of interpretation. So if someone said it had been published with due prominence, that could give rise to further complaint. Those sorts of things happened, where a complaint would then be upheld because a correction hadn't been published sufficiently prominently. But I think that what you've just said strikes me as being a very sensible development. It would have made all our lives much easier if we'd just been able to direct editors as to where to publish corrections and so on, but that wasn't the case at the time.
Q. During the course of a negotiation or conciliation of a complaint, was it the practice of the complaints officer to give advice to editors as to what "due prominence" meant in a particular case and what the PCC's view was as to where particular apology should be published and in what size?
A. Well, yes, because our interest was very much in getting these things as prominently published as possible, because it was one means by which the Commission's performance was judged and it was only fair to the complainant. So those conversations would go on and there would be a period of negotiation, where we would try and make them publish it as prominently as possible, often.
Q. In relation to adjudications, of which there are very few in one year I think it's usually less than 20 again, would it be for the editor to decide what "due prominence" meant in the context of where to publish an adverse finding, an adverse adjudication?
A. It was the same principle that I've just outlined. There would be discussions sometimes, but yes, the editor had the discretion within that sort of concept of due prominence about where exactly to put it.
Q. But isn't it rather anomalous in a situation where the matter has proceeded to an adjudication, the self-regulator, the PCC, has ruled adversely, but then there has to be another negotiation with the editors as to exactly where the adverse ruling or adjudication is to be published. Why doesn't the PCC say, "We've ruled against you, and by the way, you must publish this in a particular place on a particular page, and we're going to brook no suggestion or argument about it"?
A. I agree
Q. Why not?
A. I agree it would be fantastic, but the system was set up differently and the code of practice which covers these rules didn't allow us to do that. But I agree, that would be great. I think that's actually changed there now since I left.
Q. I just wonder whether that wasn't already built into the system. Couldn't the PCC say, as part and parcel of its adjudication: "We think that what due prominence requires in this case, in the context of our adjudication, is that the adjudication must be published on page 1 or page 2 in a certain place"? Did you ever try that?
A. We the Commission obviously, the code of practice at the time gave the editor that discretion. So the Commission didn't explicitly say that. As I say, we, the sort of officers of the PCC, were very keen to ensure that these things were as prominently published as possible and there would be a period of discussion afterwards to try and encourage editors to do what.
Q. How often in your time were offending articles published on the front page, if I can put it in those terms, which attracted a complaint and a successful resolution or adjudication how often was the apology published on the front page?
A. Well, it certainly did happen. I mean one of the myths is that it never happened. It did happen. The number of times I've no idea. That would be one for the PCC archivist to go and have a look at.
Q. In terms of your impression, are we talking a handful of times or not?
A. Well, I can't remember the number of front-page articles that were complained about and I can't remember whether it was the headline or the bit of the text on the third paragraph or whatever, so I'm afraid I just can't recall that. But, look, the point about prominence is we wanted to we recognised this was an issue and tried, within the bounds of our powers, to persuade the press as far as possible to make these things more prominent because it was ultimately in their own interests, the complainant's interests and the PCC's interests. I thought there was always more they could have done. Things should have been much more prominent to my mind but progress was made, and if you look back at this, there is a history of improvement and that was based on powers of persuasion, really.
Q. It would be understandable that the press wouldn't necessarily want these things published as prominently as you might, but did you feel there was a culture of resistance by the press to publishing apologies or, more importantly, even adjudications as prominently as you would have wished?
A. I was at the PCC for a number of years. It definitely certainly improved, and I think if you and improved considerably, and if you went I'm not taking personal credit for that, but I think the system that it did, and I think, you know, you have this evidence in the annual reports which because it was monitored. But I think at the start, then I think that the press probably was, if you are talking in total generalities, eager to publish these things with less prominence than they should have had, yeah.
LORD JUSTICE LEVESON
Maybe you should take credit for it.
We're moving on to statistics. May we break just for five minutes?
LORD JUSTICE LEVESON
That's a very good idea. Thank you. Seven minutes. (11.39 am) (A short break) (11.46 am)
Statistics now, Mr Toulmin. Page 36363. We see the numbers for the year 2007, don't we?
Q. 4,340 complaints, 1,229 rulings. Let's see if I can summarise the system. I'm going to cover this in more detail with Mr Abell, but can I encapsulate it in this way and you tell me whether you agree. There are really two sifts, aren't there? The first sift is the complaint comes in and the head of complaints or his delegate will decide whether it falls within the code at all, whether it relates to a different regulator or whether it so clearly relates to a matter of taste and decency that it doesn't engage an issue under the code; is that right?
Q. And about 50 per cent of all complaints disappear at that point; is that correct?
A. That sounds very high to me. I'm not sure maybe that is right. Mr Abell will be better placed.
Q. Yes. Then there's a second stage where the complaint is looked at in a little bit more detail. The complainant is asked for information, if necessary, to clarify the nature of the complaint, and then a decision is made as to whether it raises a prima facie issue under the code, and if it's decided that it does not or the information supplied by the complainant is inadequate, then a decision is put up to the Commission to rule the complaint out; is that right?
A. Yes, or to explain why it doesn't breach the code. So that would be sort of a ruling under the code, if the complaint was framed under the code of practice. The Commission would also look at all of the other types of complaint, in terms of there being a list and an explanation of what they were, because of course all decisions are made ultimately by the PCC, even the most sort of technical minor ones, about whether they fall in or out of the code.
Q. Yes. If the complaint is then investigated because it might raise an issue under the code so in other words, it's got past the prima facie test case then the newspaper has seven days in which to respond but at the same time a process of mediation starts. Because that's really the first principle: let's see if we can resolve the complaint. Is that correct?
Q. It's only, is this right, that if the process of mediation breaks down, that the Commission is asked to adjudicate on the complaint and the formal adjudication must take place by the Commission? It can't take place by head of complaints, you or anybody else. That is usually done by email or by formally by post; is that correct?
A. There are two different things here. There's the interaction with the members of the Commission by the office, which is done by email, and there are rulings that are approved or made through correspondence. But actual adjudications where you're discussing whether to uphold or not uphold the complaint, they would all be done at an actual board meeting where the papers would be sent to the Commissioners a week in advance and then they would consider their view on the matter and then discuss it.
Q. Yes. So if you're looking at the right-hand side page of 36364, under the heading "Rulings". Decisions on whether there's no breach of the code, that can be done by post or email, but if you get to the two bottom points, adjudication upheld or not upheld, those take place at formal meetings?
A. That's right.
Q. So it's very few in any one year get to the adjudication stage. In the year 2007, we have 32 which reached the adjudication stage, don't we?
Q. But 483 are resolved to the satisfaction of the complainant. Sufficient remedial action offered by the newspaper to be clear, if negotiations break down and the Commission is asked to adjudicate, it's open to the Commission to say, "What was offered by the newspaper by way of remedial action or settlement was sufficient or adequate, so whether or not there's a breach of the code, we're not going to uphold the complaint"; is that right?
A. Yes, and those cases would be where there was a breach of the code but the response was considered to be a proportionate remedy, so the complainant would be urged to take it up, and there would, of course, in some of these upheld complaints, be cases where the remedy was not regarded as being sufficient, if a remedy had been offered, which would happen.
Q. Certainly. So would it be fair to say that there was a huge incentive on newspapers to try and settle cases to avoid the possibility of adverse adjudications?
A. Certainly the editors and newspapers were encouraged to try and settle something that would be in the interests of the complainant and that was proportionate to any breach of the code, yes.
Q. Was there a sense, you felt, that experienced newspapers would play out a war of attrition, such that a point would be reached after a period of time where the complainant would, in the end, give in and accept the terms offered by the newspaper because the energy had been drawn out of the complaint and the matter had already been going on for some time?
A. I think that's a risk with any complaints system, to be honest with you. I think that that was something we were aware of, and certainly when a degree of external scrutiny was brought to it under the Meyer reforms, that was one of the things that I think Sir Brian Cubbon highlighted. I wouldn't say it was a cultural thing, but I think it probably did happen and we were alive to it in order to protect the interests of the complainant. I think when it did happen and they were strung out, then that would be a frowned for criticism of the editor.
Q. During the mediation process, was it often the practice of the PCC complaints handler to express a view to the newspaper as to whether or not, in his or her opinion, there was likely to be or was a breach of the code, or did the PCC simply act as go-between or intermediary between the complainant and the newspaper?
A. No, the complaints officer obviously would have had a degree of experience that the complainant didn't have, and they would see it as their role, if there was a breach of the code, to try and obtain as good an outcome for the complainant as possible, and that would involve saying to the editor: "We think there's a breach of the code", if that were the case, but obviously with the proviso that the final decision is for the board of the Commission.
Q. Some the evidence we've heard which suggests: well, all the PCC did was to act as the net between two ping-pong players or as a postbox. That would be unfair, would it?
A. I think it depends. I know you've taken a broad range of evidence from people going back 20 years in some cases, and I think it would depend on when those criticisms related to. I think it probably was a feature earlier on and it's something that we tried to become alive to.
Q. Another point that's been made elsewhere is that there's inequality of arms because the newspapers, often with legal advice, know the PCC jurisprudence most of that is collected in Mr Abell's statement whereas complainants don't, so in terms of how to play the system, the newspapers are already several points up. Is there any validity in that observation, do you think?
A. I think I'd say two things: the fact that there are, as you've pointed out here, a number of examples where the Commission did find a breach of the code I mean, there are several hundred of them in this report and the fact that the complaints officers saw their role not as getting the newspaper off the hook but quite the contrary, to get the best outcome, really, for the complainant. So there was an attempt to deal with that inevitable imbalance internally by appointing a dedicated complaints person to help the complainant through the process.
Q. Thank you. How were disputes of fact resolved, to the extent to which they arose, in the context of a system where, on my understanding, the burden of proof lies on the editor?
A. Well, the code of practice the first article relates to the accuracy. It doesn't expect newspapers to be totally accurate. It says, I think I haven't looked at it for a while, actually, but it's something like: "The press should take care not to publish inaccuracies", or something like that, and so the burden is on the newspaper editor, when challenged by a complainant, to over the accuracy, to demonstrate that they had taken care not to publish inaccurate material, but they're also, of course, allowed quite a broad leeway in terms of being partisan and so on.
Q. I'm not sure that quite addresses the question. In terms of comment and conjecture and speculation, huge amount of leeway because that isn't fact, but in a case which does turn on fact and where there's a dispute which might arise in an accuracy case and might occasionally arise even in a privacy case, how well are disputes of fact resolved?
A. Structurally, you mean?
A. Exactly in the same way as other things. The complainant would there's an article which is the starting point, which allegedly includes an inaccuracy. The complainant would say, "This is not correct", and as you say, the burden of proof is on the editor rather than the complainant, so the PCC would go to the editor and say, "The complainant is saying this is not correct", and then it would be down to the newspaper to show what grounds they had for publishing the piece and if the PCC didn't think that they were sufficient grounds, then obviously that would give rise to a breach of the code. Sometimes, of course, where there were no grounds, then there would be no argument about it. The corrections would appear straight away.
Q. But in a system you mentioned the word "structurally" where there are no oral hearings, or arguably there's power to have them but on my understanding that power's never been exercised, you might have a situation where the newspaper says one thing and the complainant says another thing which is flat contrary.
Q. You then have a decision to be made. I think the question was more directed to how that decision is made. If you're left in a state of confrontation, of proposition A against proposition B, does it follow that the complaint is rejected or what?
A. There's a rare category of ruling called "no finding", which occasionally the PCC would deploy in those circumstances, but almost always it was possible to reach an outcome whereby, if there was something wrong, it would be put right.
Q. Okay. In cases and this would be situations where there's a formal adjudication, so there's a meeting of the Commission and the publication concerned may well be represented on the Commission, so the editor leaves the room. What actually happens in practice? The editor just leaves the room, has a cup of coffee and you go on and decide? Doesn't it create a slightly embarrassing situation or not?
A. Well, possibly for the editor, but that's not necessarily a bad thing. What would happen is that the PCC secretariat would prepare the papers for a board meeting, all the information relating to a complaint. They would be sent out a week in advance. But, of course, if it related to the paper of an editor who was serving on the Commission, they would not see any of that. They wouldn't see what the what the sort of recommendations were from the office, and then when the agenda item arose, as you suggest, they would get up and leave the room. Sometimes it would be the discussion would be brief, and other times it would be very lengthy and they could be out for a considerable time whilst the PCC discussed all these things. What they did outside the room, I've no idea. I was never with them.
Q. Never a sense of embarrassment when the person comes back and on we go with the next case? Slightly tense situation?
A. I think if an editor had just been criticised by his peers or her peers on the PCC, then perhaps we did feel a little you know, there's a little frisson, perhaps.
Q. There's a structural issue about independence which I am going to take up with Mr Abell in due course, but I'm not going to make the same point twice. Discrete issues on the code. In the 2008 review, there's reference to the Burrell case.
A. Oh, yes. Which section is this?
Q. Tab 37 at page 36407. I think we all remember this one. Do you have it there, the headline, "world exclusive"?
A. You'll have to remind me as to which
Q. 36407, under tab 37.
A. Okay, yes. It's very bad copy, I'm afraid.
Q. I'm sorry.
A. What I mean is I can't quite read
LORD JUSTICE LEVESON
You can probably see the headline.
A. Yes, I can.
I think we all remember that headline. "World exclusive" and "sex" I think were in red in the original but not in this copy. It related to a claim that Mr Burrell had made in 1993 based on the brother-in-law's recollection of a conversation. I think that's, broadly speaking, right.
Q. You upheld the complaint on the basis that the newspaper should have put the allegation to Mr Burrell. Is this also right?
A. I haven't read this ruling for a while, but I think from recollection it was upheld as being highly misleading and the failure to put to him, give him the opportunity to deny it, was the aggravating feature because there was no denial published in the story, so readers were very likely to be misled that Mr Burrell didn't dispute this story.
Q. The substantial basis, on my understanding, of the complaint being upheld was that although there wasn't a general requirement of prior notification, it was misleading in this case because Mr Burrell's denial, had he been asked for it, might have put a different gloss on the story.
Q. But that would always be so, wouldn't it, in a case where there hasn't been the opportunity given to someone in Mr Burrell's situation, the subject matter of the article, to put his or her side of the story; wouldn't you agree?
A. I think that's exactly what the PCC is saying. In these circumstances, where the allegations were so extreme and old and so on, that people would be misled without the without access to a denial from the complainant from the subject of the article, yes.
Q. But what's the difference between this case and any other case which raises the issue of prior notification? It might always be said, "You didn't go to the subject matter of the article. Had you done so, the subject matter may well have put forward his or her account, so failure to put that forward in your article is misleading", and therefore it might follow that prior notification is always required. What is special about this case?
A. Well, this case was extremely unusual. Normally newspapers do go to people in these circumstances for their comments. So they didn't, I can't remember why they didn't but
Q. Didn't want to be sued, I think, is the usual
A. Oh, they were worried about an injunction, were they?
LORD JUSTICE LEVESON
Yes, well, the last sentence of the thing that is visible in white, "Lesson", rather gives that suggestion, doesn't it?
A. Oh yes, quite, exactly, and I think the PCC disregarded that. If the News of the World ran that defence, then we said that's not relevant, and in this case it was a glaring omission.
I'm not sure I'm getting my point across as well as it perhaps ought to be put. What I'm suggesting is that this case might be said to lay down a general principle which would always require prior notification and I'm not quite sure that that's the PCC's position, is it?
A. It didn't. I don't think it does. It says: in these circumstances where these again, I haven't seen this ruling for a while, so forgive me if I'm not capturing it properly. I think it was saying in these circumstances, where the claims are extreme and the complainant the subject matter of the article is likely to dispute them and the person making the allegations is recalling a very old conversation, that it would have misled readers not to include the denial, and that concerns about an injunction are irrelevant to the PCC in these circumstances. But from recollection, as well, I think the Commission did set out in a paragraph when the prior notification should occur or that it wasn't always required.
Q. Okay. The Inquiry has received evidence of those who have complained about misleading headlines. Is it the PCC's policy or was it the PCC's policy to say that the headline should really be read with the accompanying text to see whether the overall impression is misleading or is the headline considered in isolation?
A. It wasn't considered in isolation. The certainly when I arrived at the PCC, the policy was very much that it should be read in conjunction with the text, which actually followed, I think, a legal ruling involving the from the early 1990s involving Madge Bishop from Neighbours, the actress who played her I can't remember her name. Anne Charleston, I think. And there was a celebrated case where something involving Madge and Harold having sex or something in a headline and they sued and it gave rise to this legal ruling on headlines being read in conjunction with the tax. The PCC ran with this, and I think still does, but did get more did get tighter on headlines over time, not least because, I think, some of the documents you've seen the sort of independent reviewer that was introduced was very keen on making sure that the PCC was as rigid as possible on that in order to defend the complainants' interests.
Q. Has the PCC, to your knowledge, issued a policy or guidance note about headlines and accuracy in the context of clause 1 of the code? Because I haven't seen any.
A. Well, I think possibly not, but it would be the PCC's approach obviously would be sort of articulated through its rulings on headlines and so on, and of course these do change over time, depending on the particular cases. Mr Abell will also be able to update you.
Q. Can I ask you to deal with the issue of third-party complaints. The best place maybe to look at this is tab 15 of the bundle you already have open, Mr Toulmin, which is a paper which may well have been written by Mr Abell in September 2007. If you look at the last page, 30176, that may tell us that.
Q. Is that right?
Q. As it falls within your time period, can we just see if we can summarise the position. If you look at 38174, first of all. The general rule is that the PCC does not consider complaints from third parties about cases involving specific individuals, because I paraphrase that may be an invasion of their privacy and also it may not be possible to obtain the individual's version, if, by definition, that individual is not complaining; is that correct?
A. Yes. Yes, it is, yes.
Q. Then the first bullet point in the middle of the page: "It would be an oversimplification to suggest that the Commission declines to deal with all complaints from those who are not specifically involved in a case." Then the next example: "For example, in regards to complaints about matters of general fact under clause 1 where there are no obvious first parties cited in the article the Commission will always consider complaints from any concerned reader." So is this sort of to cover the situation where there might be scientific inaccuracy, there's no individual complainant by definition, but the issue of inaccuracy will be considered if someone comes along as a concerned reader or as a pressure group or whoever? Is that correct?
A. That's an example. Also matters of historical fact that journalists get wrong, if someone said the Second World War started in 1943 or something. You know, it could be there was a picture that, I remember one time, a newspaper put on its front page and said it was of a particular place and they'd got the wrong place. Those sorts of things, really. So they weren't about a living individual who would complain and the PCC took the view that those matters would be considered.
Q. Yes. Then the next example is one you've already covered, the financial examples, and you've explained why.
A. Oh yeah.
Q. Can I ask you about the opposite page, 38175 and the last bullet point there. It's rightly said: "Of course, the Commission has an absolute discretion about whether or not to investigate any complaint." We've seen that from 53.4, I think, of the articles. "If, therefore, there appeared to be an exceptional public interest in accepting a complaint from a third party concerning a named individual, then it would instruct the office to do so. This is very rare indeed for the reasons outlined above." Why so rare, Mr Toulmin? Do you know?
A. Because well, as it says, for the reasons outlined above about respecting the rights of the people in the article not to complain. I think what's important here is that this third-party thing does come up quite a lot. The position, as it seems to me, is that the PCC pretty much takes all complaints but where there is a first party, their engagement is required. The saga of very much in the early days of the PCC, where Lord McGregor made statements about Princess Diana and so on based on an understanding a sort of public outrage about how she was being treated, was very much seared on the consciousness of the Commission for years to come, which is that it is impossible to really take a view about the merits under the code of particular articles unless you have the involvement of the person concerned. But what we tried to do was not use this rule as an excuse but to reach out to people that we could see might be having some problems and try and get them to complain and come to us, and rather than taking a sort of third party's submission as the basis of the complaint, actually see if the people that were being complained you know that, were being referenced in the third-party complaint wanted to complain. So we tried to push it as far as we could to get people's involvement, but if people don't want to complain to a complaints commission, to a complaints body, then ultimately that was what had to be respected.
Q. But isn't the right approach possibly this one: the Commission has an absolute discretion. Are we agreed?
Q. If the individual person named in the "offending" piece does not complain, then it may well be that the Commission's investigation into the complaint will be less thorough because it may not be possible to obtain the "non-complainant's" version, but it's still possible for the Commission to reach a conclusion even on evidence which is not complete; would you agree?
A. I'm not sure I would agree. I think you do need the involvement of the person to say where something's wrong, for instance, and I think there are occasions where the Commission could discover something that would embarrass the person involved in the article. For instance, they might be complicit with an article that otherwise appears to be intrusive.
Q. Okay. Another general issue in relation to discrimination, which I think is clause 12 of the code: the Commission's position is that general discriminatory statements fall outside the code but a discriminatory statement which relates to an individual falls within the code; is that right?
A. Pretty much, as far as I remember, yes.
Q. Unless the general discriminatory statement is inaccurate; is that correct?
Q. Do you happen to know why, as a matter of policy, the Commission has taken that position?
A. It's not the Commission that's taken that position. That's the position that the Code of Practice Committee asks the Commission to consider. So that would the whole history of that would be, I think, better directed towards them.
LORD JUSTICE LEVESON
Is the Commission bound by that?
A. Are they bound by it?
LORD JUSTICE LEVESON
A. They're bound by the terms of the code of practice.
You see, you have a situation where it is permissible within the code of practice to make a general statement about someone's race or gender which would be regarded as discriminatory and which the PCC would itself regard as discriminatory but could do nothing about it, unless or until that discriminatory statement was made in the context of a particular individual, when suddenly the jurisdiction of the PCC would be engaged; is that right?
A. I think yes, I think generally speaking the point of the code, really, so far as it protects the public, is about the people who are in the newspapers and magazines, people who are in the media. It's about protecting their rights, and I think actually on that clause, a huge amount of good was done in terms of eliminating pejorative references to people's sexuality or race, and actually you could see how these things were improving over time. For instance, not very long ago, it was quite commonplace for people to be ridiculed on the basis of gender dysphoria, and that's something that the Code Committee recognised needed to change and they changed the rules and you just don't see it any more.
Q. If the PCC is concerned with upholding and improving standards, could it not be said that discriminatory articles and language is objectionable per se, it's a standard which has not been attained or has rather been violated by the newspaper, and it doesn't matter, for that purpose, whether or not a particular individual is named? Do you see that point?
A. Well, I think that I think the industry would say I think the newspapers would say, look, you know, there is a we have a under the umbrella of freedom of expression, we have a broad discretion to say all sorts of things, make jokes, for instance, about different write provocative pieces about nationalities, write jokes about women or whatever, and I think that's what it's designed not to let the PCC intrude into. You know, there was a column in the it probably sounds a little brutal, but let me explain what I have in mind. The Sun and the Mirror used to have their female columnists, Jane Moore and Sue Carroll they always used to have these little jokes, a joke about a man and a joke about a woman, and all that sort of thing, which probably would be regarded by some people as being offensive and discriminatory but the sort of thing that the code wasn't designed to capture.
Q. Maybe it locks into the third-party complaint point, because again, it requires an individual to be at the centre of the dispute rather than the PCC being concerned with maintaining overall standards in the industry, because after all, discriminatory language and content is a lapse from a standard, isn't it?
A. Yes, I think very much the point of the PCC is to give people individuals who are in the news a way of complaining about things when they go wrong.
LORD JUSTICE LEVESON
But the facts might also be distorted about a group.
A. Well, in that case the code would be engaged, absolutely.
LORD JUSTICE LEVESON
But it wouldn't be engaged if it was only about a group.
LORD JUSTICE LEVESON
If the facts distort in relation to a group, for example a religious group, a general complaint would prima facie be inadmissible.
A. No, we would take complaints about matters of fact relating to group.
Q. But under clause 1, not clause 12?
Q. You have to bring it into the accuracy.
Q. You don't leave it within discrimination; it has to be massaged into an accuracy complaint?
A. That's how indeed, how the PCC tried to deal with this, so that these matters were dealt with, yeah.
Q. You I don't think were involved in any way with perhaps the most controversial piece which confronted the PCC over the last ten years, namely Jan Moir's piece in the Daily Mail involving the death of Stephen Gately; is that right?
A. That article was published whilst I was still at the PCC but on the way out, and it was handled and adjudicated separately, so I can't comment
Q. I'll ask others about that one, but it involves acutely the issues which arise under clause 1 and clause 12, I think. Can I ask you a general guess question about something different: privacy.
Q. Just to get a flavour of the privacy complaints which you are or were aware of. Did the majority come from what might be called celebrities or did they come from a wider group?
A. No, the majority would come certainly from a wider group, from ordinary members of the public, and they would arise from all sorts of issues. Things that have been ventilated in court, perhaps, or something unusual that had happened to them, an unusual death in the family, something of that nature.
Q. The second general point is: did you get the impression that the PCC was being asked to deal with what might be called the smaller claims which it will probably wouldn't be worth suing over?
A. Well, there certainly were a lot of those, but also issues that people probably could sue over and chose, for whatever reason, to come to the PCC. And actually, often, as time went on, the industry, through the PCC and I think at our encouragement, would start to compensate for breaches of privacy financially.
Q. Can I move off those matters to deal now with Operation Motorman. When were you first aware of the existence of Operation Motorman and the issues which it disclosed? Can you remember?
A. Well, Richard Thomas had been to see my predecessor and Christopher Meyer in 2003. I wasn't, I don't think, particularly aware then. And then, early in my directorship, he came back or we met him somewhere and he was talking to us about the issues, which I think you've seen a number of minutes relating to. I don't actually have any recollection of that meeting but I've seen the minutes, and that looks about like the type of thing we would have been saying. And then, of course, in the published reports that he made, which was after that in 2006, I think.
Q. I'm just trying to find the relevant document. My note is faulty. There was certainly a lunch which you, I think, attended in the back end of 2004.
A. That's right, yes.
Q. Bear with me while I try and find it. The page is 00365. It is not in file 10.
A. Bundle 4, perhaps, I have.
Q. That may be right.
LORD JUSTICE LEVESON
It's on the screen.
Yes. Most of the correspondence is in bundle 4, isn't it?
LORD JUSTICE LEVESON
What was the date of it again?
You were asked, Mr Toulmin, by Sir Christopher Meyer to resurrect the issue of a guidance note. If you look at bundle 4, tab 3, it's referred to there.
Q. So we're clear, from evidence we've heard from Mr Thomas, that there was a meeting in November 2003, before your time, at least as director, and I think Mr Black was present, as he then was, Mr Thomas and Sir Christopher Meyer and various things were discussed and information shared. Then you arrive on the scene the following year and you are asked to prepare a guidance note, which you did prepare, and it's under tab 5 of this bundle, page 42024.
Q. Were you aware of the scale of the activity which newspapers and journalists were involved at this point?
A. Well, all I can do is refer to that minute that you've been presented with, I think, by Richard Thomas. I can't remember exactly what terms he set out, why this was necessary.
Q. Okay. In the guidance note, which it says is being put together with the help of the Information Commissioner this, of course, is going out generally to editors and journalists there's no reference, I believe, to Operation Motorman, is there?
A. Well, I'll take your word for it, because it's I'm sure there isn't, no.
Q. Journalists and editors are not being warned, for example: "Look what happened" I think the term used by Mr Thomas subsequently was an Aladdin's cave of illegal activity. Of course, he was using that not just in terms of the press but more widely, but the press was certainly there with a considerable, vast number, indeed, of potentially unlawful transactions. Would you agree there was no attempt by the PCC in 2005, through its guidance, specifically to warn the press of what they should do in the future by reference to what they might have done in the past?
A. I would agree with that. I think this guidance note was what we were asked to do by the Information Commissioner.
Q. Did not the PCC form its own view as to what might be appropriate, given what the Information Commissioner was saying about the scale of the activity, namely what warnings should be given?
A. Well, this was regarded to be appropriate. There are arguments about whether it should even have done this, given that it was a complaints body looking at breaches of the code of practice rather than the Data Protection Act, but it did want to be helpful and this was the outcome.
Q. Were there any internal discussions at this stage and this is before the 2006 reports as to the need to find out from the newspaper editors themselves as to what might have been going on in the context of Operation Motorman? For example, calling in editors to discuss the matter with them, asking the editors to provide information pursuant to any specific requests. Was any consideration given to that?
A. Well, I I'm not sure. I doubt it. But I think there was certainly a discussion about there was definitely a discussion at the board of the Commission about Richard Thomas' approach to because this obviously is not production of a guidance note on compliance with the Data Protection Act does not relate to a complaint under the code of practice, and as such is pretty much outside the PCC's remit, so the PCC board met to discuss Richard Thomas' request and obviously authorised for this to happen, so whatever else was discussed and we are talking about eight years ago here the PCC will have in a minute, I should think, if you want to ask them for it. I can't remember anything specific about the discussions which arose as a result of the board of the Commission.
Q. But don't we have a situation here where the Information Commissioner had uncovered serious breaches prima facie breaches; doesn't matter which, really, for these purposes of the Data Protection Act, and the PCC taking the view: "Well, there isn't a specific complaint here, therefore our powers aren't engaged and we're only going to take second place to the Information Commissioner, who is the real regulator in this area"? Was that, by way of summary, the PCC's stance, at least to your understanding?
A. I think that was probably the right approach, yes. And of course, there was no Richard Thomas had all the information. He came and said, "This is what's been going on", but there was no there was no detail to it at all.
Q. Yes. Was any consideration given at this stage as to whether Mr Thomas should be asked to provide more information to the PCC?
A. Well, you're probably better off talking to Christopher Meyer about this tomorrow because I think he had a number of discussions with Richard Thomas and my recollection is he did ask for more information and it was not forthcoming.
Q. After 2006, the evidence is that the information was not forthcoming, but before 2006s was any consideration given to that issue?
A. As I say, I think Christopher's going to be a better witness for you there. I can't remember.
Q. Okay. There was a meeting in which you were involved after the publication of the first of the 2006 reports. This time it is in bundle 10, under tab 16. It's page 00389. Do you see this meeting, 13 July 2006, and you attended it?
Q. This is not your note; it's the Information Commissioner's note. Do you see that?
Q. Do you see, under "Specifics", the first bullet point, the last sentence: "He [that's Richard Thomas] expressed some disappointment that the PCC had not been forthright in its condemnation of the activity."
Q. He was guilty of understatement there, wasn't he?
A. Well, that's a matter of opinion, I suppose.
Q. If you were to differentiate between fact and comment, as one might do for clause 1 purposes, and to ask the question: "Well, what condemnation had there been, as a matter of fact?" the answer would have been: none, wouldn't it?
A. I think by this stage there had been. I think Christopher Meyer had taken the opportunity to raise awareness of this in a way that expressed a disapproval about it. There was never any question that what Richard Thomas was saying was the right thing to say. Everyone agreed that the Data Protection Act should not be being breached by journalists. The question was, I think, where the different responsibilities lay. The PCC, as a platform for discussing the behaviour of journalists and so on in another context, which was about the application of the code of practice, was happy also to say, "By the way, Richard Thomas has this campaign about the Data Protection Act and he's right to do so", but beyond that, it was difficult really to know what the PCC could do. I think that the condemnation was fairly forthright, but that came from Christopher.
Q. There may be questions to be put to Sir Christopher tomorrow. It's right that I only ask you questions about what you said at the meeting. We can see that from the next page, 00390, the third and sixth bullet points. Do you see that? TT?
Q. stressed the role of the PCC, in particular the need for consent from the industry in the form of a Code of Practice Committee for the publication of any guidance." So it's a bit of a recurring theme. We saw that in the letter perhaps that you wrote to Mr Rusbridger. It all depends on consent from the industry, and in this case publication of guidance which the industry might agree to; is that right?
A. Well, certainly in this case where the Data Protection Act is not a matter for which the PCC is responsible that is rightly the responsibility of the Information Commissioner and the PCC's powers and role is set out as we discussed earlier, and this was not one of them so in circumstances where someone's coming to us and asking us to do something that looks like it was outside the Commission's remit then it would need the industry to agree to do something. And I actually think that he probably came to the wrong place anyway. I think he's accepted that. He either should have gone directly to the industry, the trade bodies, or straight to the Code Committee, possibly, which is more representative of the industry.
Q. There are a number of points which flow from that. Can I deal with the first one which flows logically. Is it right that this is outside the remit of the PCC, this issue, given clause 10, which is a general prohibition against subterfuge: "Journalists cannot indulge in subterfuge unless it's in the public interest." That, as a matter of logic, would include journalists acting by agents and would also include the blagging activities which were precisely the activities which Mr Whittamore and his team were carrying out.
Q. So it did fall within the code, didn't it?
A. It's one of these areas that overlaps, and you're right to the extent that a breach of the Data Protection Act in this area may well give rise to a breach of the code of practice as well, but what we weren't asked to do was to talk about the code of practice in relation to clause 10. This was very specifically about the application of the Data Protection Act itself, and I think that's the difference there, really.
LORD JUSTICE LEVESON
I'm sorry, I don't quite understand that. If the Data Protection Act renders illegal the use of subterfuge to obtain personal data, and the code says that is not justifiable except where it's in the public interest in other words, there's a coalescence, a concordance between the law and the code why on earth isn't it very much a matter for you?
A. The law of the land comes above everything else, and the law says sets outs some issues under the Data Protection Act that affect journalists and the law sets out other things that affect journalists as well, and the PCC's job is to take specific complaints about issues that arise, and on the back of those issues that arise
LORD JUSTICE LEVESON
Do you think this is the truth? Do you think the truth is that the error everybody has made is that in calling the PCC a self-regulating body, it's believed that it is a regulator, when it isn't actually a regulator at all?
The other thing which flows from this and it's a point which Mr Thomas made it caused him some frustration is that he was being told in July 2006, in effect: "You've come to the wrong body, you should really be going to the Code of Practice Committee, who might have the jurisdiction to amend the code", and he should have been told that much earlier if that were the true position? That was his evidence to the Inquiry. Do you feel that he'd been given as transparent an explanation as to the apparent restrictive nature of your powers on the one hand and the fact that this really fell with the bailiwick of a different committee on the other hand?
A. I thought he'd been told what the I mean, the PCC's role is should be fairly obvious from the title of the organisation. It's a complaints body, and I'm fairly sure we would have explained exactly what the PCC does at this first meeting, but within the context of that, as I've said before, the PCC agreed with him. There's no question that we disagreed with his campaign. We agreed with him that journalists shouldn't be behaving in this way and therefore, using the platform that it had and the profile of the PCC, agreed, subject to the Code Committee and others agreeing, that some awareness-raising should take place, and we were very happy to do that.
Q. Wasn't there any concern within the PCC that a substantial quantity of potential unlawful activity which had been unearthed in 2003 might still be perpetrated by sections of the press and therefore it was necessary for the PCC to get hold of the issue? Was that not of concern?
A. I'm sure it was of concern. I think we tried to support Richard Thomas. It was his campaign, and it was you know, the Data Protection Act was his responsibility and we did what we were asked to do by him in furthering that campaign.
Q. The final piece of the jigsaw, but I'm going to have to deal with it quite briefly, in terms of the Information Commissioner, is that evidence was given to the Select Committee on this issue under bundle B1, tab 53. If my recollection is correct, it's evidence that you gave.
A. Bundle 1B, file 1?
Q. It's going to be file 2, I'm afraid, because tab 53 is in file 2. The first page is 45466.
A. Tab 2?
Q. Tab 53. Do you have that one?
A. Oh, yeah.
Q. This is a written submission that was put in.
A. Page? Sorry
A. Oh yeah.
Q. This is a memorandum or part of a memorandum submitted by the PCC, and we can see that from 45461. Presumably you had some input into this; is that right?
Q. Under the heading "Tougher sanctions" this is more generally in the context of the PCC the argument is put that the power to fine newspapers should not be included within your armoury of powers; is that right?
A. Yes, that's the argument set out there.
Q. You also make the point do you see under paragraph 28, where you say: "The industry has already, in effect, been pre-fined to the extent of about 1.75 million per annum through the levy that participating companies must pay."
Q. Is that a serious argument, Mr Toulmin?
A. No, I don't think so. I don't think it's a serious argument. I think it's just making the point, isn't it, that the industry is paying for a free body to enable people to complain without being financially out of pocket. That would be my take on it.
Q. Certainly at this stage, the PCC is dead against increasing its powers by whatever means. It could simply be done, actually, by an amendment to the articles of association, but dead against the amplification of its powers to include the ability to fine. That's correct, isn't it?
A. That's right, yes.
Q. I think under the next section, "What's wrong with the privacy law?" do you see that at the bottom?
Q. the argument is effectively advanced: we shouldn't have a privacy law; is that right?
A. It probably would have been. Yes, that would have been the PCC's position on privacy law.
Q. Philosophically, that would have to be the PCC's position in line with the evidence you've given earlier
Q. about the preeminence of freedom of speech. Then specifically on data protection, if you could move forward to 45476.
A. Oh yeah.
Q. Under the heading, "Privacy, news gathering and the Data Protection Act", the first point that's made under paragraph 118, you say: "It's a misconception in some quarters that the PCC is the only form of regulation for the press." Well, the real misconception may be that the PCC is a regulator at all, regardless of the position of other possible regulators. Would you agree with that?
Q. Then, later on in this submission, the point is strongly made that the power to impose a custodial sanction should not be introduced. Do you recall that?
A. Yes. Well, that reflects what you highlighted earlier, doesn't it?
Q. It's all part and parcel of the same sort of philosophical coalescence that you would naturally take that position, wouldn't you?
Q. I think the point is also made in this material, if not elsewhere I think we saw it in the 2007 annual report that you felt that the Information Commissioner's material was old and incomplete, didn't you? Do you recall that?
A. Yeah, we talked about it earlier, didn't we? Yes.
Q. So is it fair to say that you, as a Commission, were entirely supportive of the Information Commissioner's stance?
A. From what I recall, I think that everybody was supportive of the of his campaign's aims, to ensure that journalists abided by the Data Protection Act, and that seems to be reasonably uncontroversial, I think.
Q. Okay, well, the conclusions of the Select Committee on this issue I think we can just note. This is paragraph 33 of their report at 45392. They make the point and it's really comment only, because what they say this Inquiry doesn't have to agree with: "We find claims that all of the transactions involving journalists were through the obtaining of information through illegal means to be incredible. It's a matter of great concern that the industry has not taken this more seriously." It might be said that you can widen the term "the industry" to include the PCC, mightn't you?
A. Well, you'd have to ask Mr Whittingdale about that, I think.
A. I don't think it was taken as a particular criticism, at the time, of the PCC.
Q. To be fair, to complete the picture, what did happen I think we can just note this was in August 2007 clause 10 of the code of practice was amended so that the words "including agents and intermediaries" were inserted into the clause
Q. the anti-subterfuge clause, to make it clear beyond peradventure that the activities of private investigators and search agencies were embraced. Also, as Mr Abell points out see paragraphs 607 and 608 of his witness statement letters were written on all editors in March and April 2007 asking them specifically about their internal controls in respect of DPA compliance. Their replies I'm not going to take the Inquiry to this but just note it are to be found between paragraphs 397 and 423 of Mr Abell's position. That, I think, completes the picture on the Data Protection Act. Can I move to phone hacking, finally, Mr Toulmin. Here we need to go to bundle B4, first of all tab 21, which is an internal paper. Do you see that? You wrote it 4 December 2006, dealing with the phone-hacking issue. This was after the guilty plea, but before sentencing.
Q. Do you follow me? When you suggest what the way forward might be. You see paragraph 7. This is our page 40349.
Q. "One approach might be for the Commission to review the position following those remarks [that's the sentencing] and decide at that point whether to write to the editor with further questions." Tab 22, the questions you wrote or posed to Mr Myler on 7 February 2007. Mr Coulson had departed. A decision was made not to pursue him but a number of specific questions were proposed of Mr Myler. We've seen this letter before because Mr Myler was asked about it. Can I just ask you about one point, though. At the very end of this letter, point 4, do you see that?
Q. "The Commission intends to widen its investigation after hearing from you, with a view to establishing whether controls across the industry are adequate." Certainly the impression you're giving to Mr Myler was that this was an investigation of sorts, wasn't it?
A. Well, I think you need to read the entire letter to understand what the Commission is doing here, and the impression that we were giving to him. At the very first paragraph, it refers to an exercise.
A. Then it says we recognise that he wasn't the editor but nonetheless we want to make sure that they are aware, there are no loopholes in their application of the code and so on. It was very much based on that idea, as I talked about earlier, about this sort of subcontracting of breaches of the code, which would obviously completely undermine the PCC's work.
Q. Before you wrote this letter, did you read the sentencing remarks of Mr Justice Gross?
A. I can't remember. Obviously I've seen them because they crop up elsewhere in my evidence in the evidence you sent to me. I can't remember when I first saw them. I'm not sure that I had done, actually.
Q. Because he refers to others at News International, doesn't he? You may or may not have seen that at the time.
A. No, I think I saw that later. I think that came up in 2009. Honestly I can't remember the precise I can't actually remember what they said, but I obviously have seen them.
Q. Mr Myler's reply is under tab 24. We've seen this previously. He was saying, quite clearly, that this was one rogue reporter, wasn't he?
Q. What happened after that, if I can take it quite shortly, is that letters were written to other editors inquiring about the internal controls at their papers to ensure that there would not be a replication of this sort of conduct. The letters start at tab 25. They're all written in like form.
Q. And there were a whole series of replies which gave you, you felt, the appropriate assurances. The PCC report on subterfuge and news-gathering is under tab 40.
A. That's right.
Q. We don't have a date on it but I think it's probably May 2007.
A. Yeah, that sounds about right.
Q. We just note a number of points. Paragraph 1.6. The point is made I think we've covered this that Mr Coulson was not going to be asked for his account: "Given that the PCC does not and should not have statutory powers of investigation and prosecution, there can be no question of trying to duplicate the lengthy police investigation." Of course, by that stage the police investigation had finished, hadn't it?
A. It had.
Q. There's a difference between a statutory power of investigation, or indeed any power of investigation, and one of prosecution, isn't there?
Q. I think we've probably flogged to death the point whether there is a power under the articles of association to investigate in any event, haven't we?
A. I think we have.
Q. Paragraph 1.8, the second bullet point. It does use the word "inquiry", in the context, though, of ascertaining the extent of internal controls aimed at preventing similar abuses. It may be that this is all a semantic discussion, the difference between "exercise", "inquiry". Maybe we can form our own conclusions as to what it was. Your conclusion, though, in this report at 40469 the obvious point is made in 10.1: "This mustn't happen again." 0.2: "It is similarly important that the industry guards against overreaction. There is a legitimate place for the use of subterfuge when there are grounds in the public interest to use it and it is not possible to obtain information through other means." Well, that slightly finesses maybe more than slightly the position in the context of the 2000 Act, doesn't it, because you could never use subterfuge of this sort and be within the criminal law, could you?
A. No, but I think that's making a broader point about the code and the use of subterfuge generally and that this is, I imagine, designed to send a message about the use of investigative journalism in the public interest.
Q. Right, but it's in danger of mixing up a general point about investigative journalism or indeed one about the Data Protection Act, where there are public interest defences and specific points about phone interception. Would you agree with that?
A. Well, I think in the context of these conclusions, we are talking about, in that part, the generalities of subterfuge. There's no there, at that point, to the Act.
Q. Okay. Time then moves on. May 2007. The Gordon Taylor litigation is settled confidentially in the summer of 2008. All this blows up big time, really, in the Guardian on 9 July 2009, and then Mr Rusbridger writes to you on 10 July. I think possibly we come to that letter after lunch, with an indication I have about 15 minutes left for Mr Toulmin.
LORD JUSTICE LEVESON
As you say, time moves on. 2 o'clock. Thank you. (1.01 pm)