The Management Standards Committee in News International. Yes, we have been

receiving – we've got a co-operative working relationship with them, and they are the people who have passed us information upon which we've made arrests, as well as supplying information to us when we've made requests."¹²¹² Complaints handling 709 Chapter 7: Conclusion 717 1 Introduction 717 2 Possible causes 719 3 The relevance of the internet 736 4 The press response to this Inquiry 737 PArT G: The PreSS And The POlICe: The relATIOnShIP 741 Chapter 1: Policing with Consent: the role of the press 743 1 Introduction 743 2 The purpose of the relationship and public confidence 745 3 Tensions in the relationship between the media and the police 748 Chapter 2: The history of the relationship: different Approaches 751 1 Metropolitan Police Service: the Commissioners 751 2 Other police forces 756 3 Press departments 763 Chapter 3: Press and the Police: the harm and the response 780 1 Introduction 780 2 The use and abuse of information 780 3 Entertainment: an overview 830 4 The perception of influence 851 5 The problems of friendship 898 6 Calibrating the harm: the views of Commissioners 928 v http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Assessor-Protocol-17-October-2011.pdf http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/231111-S19-restriction-order-HJK.pdf Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 at 586 per Lord Nicholls p49, para 47-90, Professor Baroness Onora O'Neill, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/ Transcript-of-Afternoon-Hearing-16-July-2012.pdf Feldman,D 'Secrecy, Dignity or Autonomy? Views of Privacy as a Civil Liberty', p54, http://clp.oxfordjournals.org/ p52, lines 3-12, Professor Jennifer Hornsby, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/ Transcript-of-Morning-Hearing-16-July-2012.pdf http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Spencer-Feeney.pdf; http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Mike-Gilson.pdf; http:// www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-John-McLellan.pdf; http://www. levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Jonathan-Russell.pdf ibid p5, para 13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Lord-Patten1. pdf p3, para 5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/DCMS-submission_Narrative-on-media- ownership.pdf Great Britain (1949) Op cit, p178 p54, paras 121-124, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of- Stephen-Abell.pdf p52, lines 4-18, DCI Gilmour, ibid pp6-7, para 4.4, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Alexander- Owens1.pdf p43, para 84, ibid p9, lines 19-22, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of-Morning-Hearing-6- February-2012.pdf pp12-13, lines 16-14, Sally Dowler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Morning-Hearing-21-November-2011.pdf pp34-35, lines 17-13, Fiona Fox, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Afternoon-Hearing-24-January-2012.pdf p25, para 53, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-JK-Rowling2. pdf p16, lines 21-25, Colin Myler, ibid p20, lines 6-10, Robert Jay QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Morning-Hearing-9-May-2012.pdf; p7, para 17, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/ Witness-Statement-of-DCI-John-Macdonald.pdf pp25-26, lines 11-14, Charlotte Church, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript- of-Afternoon-Hearing-28-November-20111.pdf p9, lines 3-18, Hugh Whittow, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Morning-Hearing-12-January-2012.pdf p32, ibid p31, lines 21-23, Lord Condon, ibid p4, lines 16-24, Assistant Chief Constable Jerry Kirkby, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Morning-Hearing-27-March-2012.pdf Interim ACPO Guidance for Relationships with the Media, para 3.5, http://www.acpo.police.uk/documents/reports/2 012/201204IntGuiMediaRels.pdf pp30-32, ibid; p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Fourth-Witness-Statement-of- Richard-Thomas-CBE.pdf p54, lines 16-18, Richard Thomas, ibid p50, lines 10-12, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Afternoon-Hearing-9-December-2011.pdf http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Philip-Coppel-QC-redacted.pdf; without reproducing it in full here, his general introduction to the history and substance of the Act is a commendably lucid and concise overview which should recommend itself to the general reader and which I am pleased to be able to adopt for the purposes of this Report: see pp2-12. This was also covered in his oral evidence: pp1-20, Philip Coppel, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of-Morning-Hearing-17-July-2012.pdf pp81-86, lines 17-3, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript- of-Afternoon-Hearing-9-December-2011.pdf Part H, Chapter 5, para 2.72 p11, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-statement-of-Andrew-Neil.pdf pp22-23, lines 25-1, Jack Straw, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Morning-Hearing-16-May-2012.pdf p50, lines 8-24, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Morning-Hearing-14-June-2012.pdf p15, ibid p20, lines 16-19, James Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of- Afternoon-Hearing-24-April-2012.pdf pp3-4, lines 24-2, ibid p12, para 40, ibid p21, para 5.1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Ofcom-Measuring- Media-Plurality1.pdf As I have made clear in Part E Chapter 5, there is an issue about the way in which the relationship between the Management and Standards Committee and the MPS has recently developed. I repeat that I am satisfied that it is not appropriate to elaborate further although the assistance upon which the police have had to depend only serves to make the point that this Chapter identifies This argument subsequently prevailed in the European Court of Human Rights following further litigation relating to Naomi Campbell when the Court ruled that the recovery of success fees at the level sought by lawyers in privacy and defamation cases represents a significant violation of freedom of expression. In that case, the figures were startling: Ms Campbell was awarded £3,500 in damages after the House of Lords ruled her right to privacy had been breached by a front-page story revealing her attendance at Narcotics Anonymous. Her legal costs came to more than £1m, including £288,468 base costs, £279,981.35 in success fees and £26,020 disbursements: see MGN v. United Kingdom (Application 39401/04) p171, para 247, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Stephen- Abell.pdf pp6-7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Sumission-from-Jeremy-Hunt-MP.pdf; p8, para 3.1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Tim-Suter-of-Perspective- Associates.pdf http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Lord-Black-of-Brentwood-Annex-C1.pdf pp6-7, paras 20-21, ibid pp3-7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Michelle-Stanistreet-on- behalf-of-the-National-Union-of-Journalists.pdf p54, lines 1-10, Professor John Horgan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript- of-Morning-Hearing-13-July-20121.pdf para 179, report of Joint Committee on Privacy and Injunctions http://www.publications.parliament.uk/pa/jt201012/ jtselect/jtprivinj/273/273.pdf Part K, Chapter 7, para 4.24 Part K, Chapter 7, para 4.31 See for example, Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24, and Lingens, cited above, §§ 41-42) and recently Centro Europa 7 SRL and Di Stefano v Italy (Application no. 38433/09)Show full note

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¶2.13 It is not, perhaps, surprising that there has been considerable criticism of News International

(NI) for providing such help to the police and, to put the matter colloquially, for "shopping" or "grassing" on their own employees. The contrary view is that the company has been very concerned to demonstrate that whatever has happened at the NoTW (or other titles under their control) has not only been without the authority of the most senior management of the company but also is entirely contrary to the principles on which the company operates. As a result, the company has done all that it can to assist the police where prima facie evidence of criminal behaviour has been identified. The words 'prima facie' are very important because NI has not conceded that criminal offences have been committed but only that police investigation is justifiable.

¶2.14 Thus, the mere fact that there are lengthy investigations of phone hacking (Operation

Weeting) and the bribery of public officials and others (Operation Elveden) is not evidence that it was and always has been open to the police to conduct the type of investigation now underway. Without the active cooperation of NI, it is clear that the extensive investigations would not have been possible: evidence of the earlier (different) approach is clear from what happened when the police sought to investigate in 2005 during Operation Caryatid which is outlined above.13

¶2.15 It must be emphasised that these points are not made to imply that there has been any

breach by a journalist of the data protection legislation in the period since 2006 or, indeed, that the payment of public officials for stories provided in breach of their duty is necessarily more extensive than has been revealed or is suspected as a result of recent disclosures. Equally, however, the absence of complaint is little better than neutral and does not mean that steps should not be taken by newspaper organisations to put into place a regime that provides positive reassurance that the law is not being breached (save only in relation to data protection offences where the public interest justifies it). I am perfectly prepared to accept the evidence, for example, from Associated Newspapers Ltd, that as a result of a specific instruction from the editor-in-chief, no private detective has been engaged by the company since the publication of What Price Privacy Now, but this assertion to the Inquiry cannot take the place of a regular and verifiable audit.

¶2.16 Putting complaint by a victim to the police to one side, the second approach to the detection

of crime is similarly of little value in cases such as might arise in relation to the press. The fact is that it is almost inconceivable that the gathering of intelligence in a covert manner would be considered as either necessary or, in any event, appropriate. Not only is it unlikely that the criminality which could be revealed would be of sufficient gravity to justify such steps but, in addition, it is not clear how such information gathering could be undertaken.

The investigation of crime: gathering evidence 3.1 Assuming that a complaint has been made to the police, the problems facing any investigator

have only just begun not least because of the respect which the law accords to journalists, the fundamental rights of freedom of expression and a free press and the entirely legitimate responsibility of the press to hold power to account. Such is the significance of these important J principles that very real safeguards are built into the law to provide protection.

¶3.2 A detailed analysis of the powers and duties in respect of the search and seizure when that

impacts on the work of journalists is set out in Appendix 4. It is sufficient to emphasise that material acquired or created for the purpose of journalism, held on a confidential basis by a

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person who acquired or created it for that purpose, constitutes excluded material pursuant to ss11(1) and 13 of PACE and other journalistic material constitutes special procedure material (see s14 of the Act). Search for such material is covered by the more restrictive provisions set out in Schedule 1 of the Act, which require the judge called upon to consider an application for production or a warrant to have regard the public interest; this is wide enough to include the importance of the impartiality and independence of the press, the potential stifling of public debate or other relevant factors.14

¶3.3 These protections are not, of course, designed to protect journalists from the consequences

of their own deliberate criminality unconnected with the public interest, but the law certainly explains why DAC Akers expressed herself in the way in which she did in her evidence. One of the results of the legislation is that, in protecting what it is entirely appropriate to protect, there is a risk that behaviour which deserves no protection will not be uncovered. It makes it that much more difficult to obtain evidence to support (or, indeed, to undermine) a complaint, making much more remote the prospect of prosecution even where the true facts, if they were known, would demonstrate that such a prosecution was entirely merited.

¶3.4 These difficulties both in relation to complaint and investigation only serve again to put the

burden on journalists to respect the reasons for their freedoms and not to abuse that protection by invoking it to cover up that which cannot be justified. They also utterly undermine the case that all allegations of criminality can be left to the police to be investigated in exactly the same way that other allegations of crime are investigated. Thus, if there are these protections in law which, I accept, are entirely and fully justifiable, there must be some other way in which the press itself and the journalists who work within it can be held to account in relation to their own conduct.

A failure of policing

¶4.1 Against this background it is necessary to consider the wider point that this Inquiry should

examine the failure of the police to investigate phone hacking, rather than the activities of the press. The argument is that the Mulcaire notes were available to the police for them fully to investigate yet, for years, they did nothing. The detailed discussion of Operation Caryatid appears above15 but this question must be considered not just in the context of that case but as a systemic issue concerned with the balance between what conduct should fall only to those responsible for law enforcement and what conduct should be of concern of any business (and its employees) as to the way in which it goes about what it does. This has to be considered both at an individual but also a corporate level.

¶4.2 A number of witnesses were asked whether, at an individual level, the suggestion that all

that had transpired was a failure of policing might seem like blaming the police for their failure to stop motorists speeding, rather than the motorist for speeding in the first place. It is certainly unarguable that there are no small number of offences that are committed when it is believed by their perpetrators that they will not be detected and, in the most part, they are not detected. Perhaps not surprisingly, cars slow down when approaching speed cameras

¶J and speed up after the risk of being caught is passed. Few can drive or walk on the streets

without seeing drivers use mobile telephones notwithstanding the prohibition on doing so. These are, however, individual offences committed by individuals: there is no mechanism to encourage or exhort those individuals to obey the law, other than the risk that an offence will be detected and the offender pursued.

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¶4.3 That is not to say that procedures cannot be put into place that allow the extent to which

individuals are complying with the law to be monitored. Pursuing the motoring analogy (without in any sense suggesting that there is an equivalence between motoring offences and the type of offending with which the Inquiry has been concerned or, indeed, between the privilege of being able to drive and the right to free expression), such measures are required in connection with the use of certain types of heavy goods vehicles. In one sense, the driver of a heavy goods vehicle is individually responsible for observing the speed limits, rest regulations and other obligations placed upon him for reasons of general road safety. Breaching those regulations constitutes an offence but it would obviously seldom realistically be possible for the authorities to follow a driver to ensure compliance. By requiring every such vehicle to be fitted with a tachograph, however, compliance can be monitored and a check made to discover whether the driver is, in fact, complying with his legal obligations.16

¶4.4 It is possible to pursue this analogy a little further by considering the corporate level. Although

employers may have difficulty monitoring the way in which their employees drive company cars not required to have a tachograph, the requirement on employers to ensure that heavy goods vehicles are fitted with a tachograph and that the appropriate records for each vehicle are maintained allows a system of audit for the employer to check on drivers and for the authorities to check on employers. A rogue driver, regularly breaching the regulations, should be discovered; if he is not and, even more so, if there are many such rogue drivers within one organisation, conclusions as to the cultural approach to road safety within that organisation can legitimately be drawn. Moving away from road traffic, it is commonplace for organisations with regulatory obligations to put into place compliance mechanisms intended to promote (if not ensure) proper practice.17 Equally, compliance is encouraged by an organisation if its culture, or the law, requires self-reporting to the regulator in the event that a breach is discovered.18 This approach does no more than reflect that the police (or a regulator) cannot be everywhere all the time and will not be well placed to detect impropriety which is likely to remain hidden, particularly when there is no complainant and, thus, no complaint.

¶4.5 For the press, of course, there is no such regulatory regime and there is no suggestion that

there should be. But the problem remains: what can be done to ensure that the law (and, perhaps, an ethical code) is treated with respect by all and that a culture is maintained to the effect that short cuts to obtaining a good story must not involve conduct which responsible journalists would consider reprehensible? If any journalist truly believes that almost anything goes in pursuit of a story, and that the basis for that story will be protected by the newspaper concerned as a journalistic source which will never be revealed, and, furthermore, this approach works, it is not surprising if a culture to that effect develops and the police will simply never be involved. This culture can, however, be avoided if the editor and newspaper

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insist on a record (capable of being audited by someone should problems arise) which ensures that decisions are made about the ways in which certain types of stories are obtained by reference to identifiable principles and at an appropriate level within the news room. The issue of robust internal governance and the value which might be obtained from such an approach is further discussed in connection with the approach of the civil law analysed below.19

¶4.6 Whether or not there was a failure in policing does not impact on the culture, practices and

ethics of the press, save only to the extent that anyone might have thought that the absence of complaint might have encouraged an atmosphere in which less attention was paid to the legality of what was being done than should have been. To put the same point another way, the question that must be addressed is whether there was a feeling of impunity within newsrooms generally or one or more specific newsrooms in particular.

Police resources

¶5.1 There is a further problem in seeking to cast responsibility for the overall present state of

affairs on the police on the basis that there has simply been a failure of law enforcement. The approach, so far, has proceeded on the basis that police manpower resources are limitless and that if there is a complaint which is sufficiently based in provable fact to justify investigation, that investigation will be undertaken. The safeguards in the Police and Criminal Evidence Act (PACE) 1984 designed to protect journalistic material will be respected and the matter pursued, whether or not that will permit sufficient evidence to be disclosed to convert a complaint into a case which can be put before a prosecutor with sufficient prospect of success to justify commencement of a prosecution. In fact, superimposed on the limitations based upon the unlikelihood of there being a complaint, and the potential legal and other problems that an investigation will have to address, is the fact that police investigative resources are by no means limitless and work has to be prioritised in relation to every aspect of policing. It is therefore inevitable that a decision will have to be taken at an early stage whether the public interest sufficiently requires resources for this type of investigation, perhaps at the expense of investigating other criminal activity or undertaking other types of police work.

¶5.2 In that regard, it is not sufficient to point to the activities of the MPS since January 2011,

when for understandable reasons concerned with their reputation and, in addition, the Crown Prosecution Service, very considerable resources have been devoted to all the evidence initially available from the search of the home of Mulcaire and now supplemented by material from the Management and Standards Committee at News International. The circumstances of these investigations and the prior history is analysed at length20 but these are exceptional. The truth is that in relation to individual specific complaints, the complexity of any investigation, the likely attitude of the relevant newspaper to the provision of evidence and the difficulty of securing sufficient evidence potentially to satisfy the very high burden cast upon prosecutors will almost inevitably mean that a conclusion will be reached that resources are better devoted to other, and arguably more serious, complaints of crime.

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¶5.3 More than a few witnesses made it clear that the police were simply not interested in pursuing

complaints when made. By way of example, Sheryl Gascoigne21 and Sienna Miller22 explained to the Inquiry that complaints about being pursued by the press were not investigated or taken further. In one sense, Mr Gove was absolutely right; the police should be appropriately resourced to investigate crime; unfortunately, until resourced to investigate every complaint while, at the same time, carrying on the very many other duties cast upon the police, priorities will be inevitable. The fact that certain crimes (if crimes they ultimately turn out to be) will be considered a low priority, perhaps because of the inherent risks and complexity in undertaking an investigation into them, (or the very limited prospects that an investigation will be successful) does not, or should not, impact on the propriety or justifiability of them being committed.

Public interest: a defence to crime 6.1 The analysis of the criminal law reveals that the only offence in respect of which there is a

specific defence in law is that contained within s55 of the DPA (namely whether, objectively, the obtaining, disclosing or procuring of personal data was justified as being in the public interest which concept is undefined). As part of the legislative proposal contained within s77-78 of the Criminal Justice and Immigration Act 2008, not yet in force, an increase in the maximum penalty for breach of s55 of the DPA sits alongside a new defence which covers the position where a person acts for special purposes (including journalism) with a view to the publication of journalistic material in the reasonable belief (subjectively held by the journalist) that the obtaining, disclosing or procuring of the data with a view to publication was in the public interest.

¶6.2 It has been suggested that, far from extending the way in which the criminal law operates to

protect victims of journalistic practices that all who have appeared before the Inquiry have condemned, the reach of the criminal law should be reduced by importing a defence to all crime that was committed by a journalist acting in the public interest.23 The example most often given is the story published initially by the Daily Telegraph, which exposed the way in which the expenses system for Members of Parliament had been abused and, in particular, the fact that the Daily Telegraph paid a large sum of money to someone for a disc of all MPs' expenses which, it is said, must have been provided, at the very least, in breach of confidence. The evidence of the then editor, Will Lewis, was that advice was sought at every stage and very great care was taken to ensure that what the Daily Telegraph did was not in breach of the criminal law24 but I recognise that, were that situation to recur today, questions about breach

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of the Bribery Act 2010 could be more difficult to resolve. A more recent example related to the bribery of a court official to remove driving offences from the court record which was exposed in The Sun.25

¶6.3 The argument is that no journalist should be put in peril of being guilty of crime when he

or she is pursuing a story, the publication of which will be in the public interest. The vital significance of the role of the press in holding power to account (and by publishing stories that uncover misconduct about which the public is entitled to know) can only be encouraged by complete protection from the risk of criminal prosecution; there is otherwise insufficient protection for such a journalist who should not have to weigh up the personal risk of criminal prosecution when deciding whether or not to proceed. The importance of the principle is further underlined by the fact that journalists have been prepared to take that risk (particularly in relation to the unwillingness to disclose sources) and that their position has been reflected and recognised (albeit couched with an appropriate exception) by Article 10 of the ECHR in terms that:

"No court may require a person to disclose nor is any person guilty of contempt of court for refusing to disclose the source of information contained in a publication for which he is responsible unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice, or national security or for the prevention of disorder or crime."

¶6.4 This suggestion is far from being a simple extension of the present or proposed defence to a

contravention of s55 of the DPA. Given the different ways (representing different points in the chronology) in which such an offence can be committed, to be effective, the test would have to be satisfied at each stage. Thus, using the present law, it might be possible to procure or obtain personal data on the basis that there is an objectively justifiable basis for concluding that to do so is in the public interest. Disclosing that personal data raises potentially different issues. Take as an example the possibility that a journalist has information that there is a link between a public official (whose private life is of no public interest) and an exposed corrupt agent and that the latter is improperly influencing the former in the performance of his duties. The journalist deceptively obtains details of the telephone records of the public official, discovers that there is no such link but that it is obvious that the public official is having an extra-marital affair. There may be a public interest defence in procuring or obtaining the data in the first place but there is hardly any public interest in then disclosing what has, in fact, been discovered (as opposed to what it was thought, in fact wrongly, might have been discovered).

¶6.5 Other criminal offences, however, are not based around the protection of data but rather bite

at the moment of commission. Assume the same example as above but that the only way to obtain the evidence of a connection was by bribing (or blackmailing) an employee to provide the information, and that doing so produced not the evidence of a corrupt relationship but evidence of the extra-marital affair. With that evidence obtained, subject to potential arguments of privacy in the civil law (which an editor may well be prepared to argue), there

¶J would be nothing to prevent the journalist from publishing the story of the affair.

¶6.6 On the face of it, many journalists might argue that this is entirely justifiable. A story (albeit not

the story sought) has been lawfully obtained and there is no reason based upon its manner of acquisition why it should not be put into the public domain. What it depends on, however, is the information of a link between the official and the corrupt agent. Assuming that the story emerged, how could the proposed defence to an allegation of bribery or blackmail

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ever be tested? The journalist will say (whether honestly or not) that the information came from a reliable source, responsible in the past for much entirely accurate material, whom he is not prepared to name under any circumstances. The effect of a defence in law will be to emasculate almost all prospect of bringing a journalist to task for the way in which a story has been researched, whatever means, at first blush illegal, might have been used.

¶6.7 Neither is a criminal defence necessary. It might be thought that it is only right that both editors

and journalists should think long and hard before embarking on what is criminal conduct in an effort to pursue a story and that it should not be sufficient to rely on an undisclosed source or sources as an all embracing defence. There are, however, other mechanisms to ensure that the law is not brought to bear on journalists (or, indeed, on any one else) in an oppressive or unfair way.

Public interest: the decision to prosecute 7.1 There are a number of mechanisms in place to prevent or inhibit the prosecution of crime

which might be described (in non-technical language) as abusive. These revolve around the decision of the prosecutor to prosecute; the control that any criminal court exercises over abuse of its process; the 'rights' of the jury; and the ultimate discretion of a sentencing judge. It is worth discussing each of these in turn.

¶7.2 Whatever might have been the position previously, in recent times the decision of the

prosecutor to prosecute has always involved the exercise of discretion. On 29 January 1951, the then Attorney General, Sir Hartley Shawcross QC, made a statement to the House of Commons which has been frequently since repeated and adopted by subsequent Attorneys General. He said:26

"It has never been the rule in this country – I hope it never will be – that suspected criminal offences must automatically be the subject of prosecution."

¶7.3 Until this Inquiry, the manifestation of this discretion was only contained within the Code for

Crown Prosecutors, which not only prescribes an evidential test (whether there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge) but also a public interest test which is articulated in this way:27

"A prosecution will usually take place unless the prosecutor is sure that there are public interest factors tending against prosecution which outweigh those tending in favour, or unless the prosecutor is satisfied that the public interest may be properly served, in the first instance, by offering the offender the opportunity to have the matter dealt with by an out-of-court disposal (see section 7). The more serious the offence or the offender's record of criminal behaviour, the more likely it is that a prosecution will be required in the public interest. Assessing the public interest is not simply a matter of adding up the number of factors on each side and seeing which side has the greater number. Each case must J be considered on its own facts and on its own merits. Prosecutors must decide the importance of each public interest factor in the circumstances of each case and go on to make an overall assessment. It is quite possible that one factor alone may outweigh a number of other factors which tend in the opposite direction. Although

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there may be public interest factors tending against prosecution in a particular case, prosecutors should consider whether nonetheless a prosecution should go ahead and for those factors to be put to the court for consideration when sentence is passed."

¶7.4 Not least because of the expressed concern relating to journalists, the Inquiry raised the issue

with the Director of Public Prosecutions, Keir Starmer QC (DPP) and, seeking an analysis of the position, also invited him to consider whether it was appropriate to enunciate a policy in relation to the public interest in the prosecution of journalists.28 His statement recognised the considerable public concern about the allegedly criminal activities of some journalists and saw no difficulty in developing a bespoke policy to give guidance to staff as to the approach to such difficult cases. Thereafter, on 18 April 2012, he published interim guidelines (on which he commenced a consultation exercise) on assessing the public interest in cases affecting the media. He distinguished between the public interest served by freedom of expression and the right to receive and impart information and the separate question of whether a prosecution is in the public interest (being the second stage of the Code test).

¶7.5 That process of consultation concluded and, on 13 September 2012, the DPP issued formal

Guidelines.29 Having reviewed the general principles relating to prosecution, the Guidelines refer to principles of special application in cases affecting the media by reference to Article 10 of the ECHR and decisions such as Sunday Times v UK (No 2)30 in addition to the further guidance to be derived from R v Shayler31 and AG's Reference No 3 of 2003.32 The Guidelines then identify that the appropriate approach is encapsulated by the question whether the public interest served by the conduct in question outweighs the overall criminality.

¶7.6 There is then an outline of the way in which prosecutors should deal with the question by

following a three stage process: that is to say (1) assessing the public interest served by the conduct in question; (2) assessing the overall criminality; and (3) weighing these two considerations. In relation to the public interest served by freedom of expression and the right to receive and impart information (not previously defined in law), examples of conduct capable of serving the public interest are provided which are not intended to be exhaustive but which include the following: "(a) Conduct which is capable of disclosing that a criminal offence has been committed, is being committed, or is likely to be committed. (b) Conduct which is capable of disclosing that a person has failed, is failing, or is likely to fail to comply with any legal obligation to which s/he is subject. (c) Conduct which is capable of disclosing that a miscarriage of justice has occurred, is occurring or is likely to occur. (d) Conduct which is capable of raising or contributing to an important matter of public debate (of which there is no exhaustive definition but examples include public debate about serious impropriety, significant unethical conduct and significant incompetence which affects the public). (e) Conduct which is capable of disclosing that anything falling within any one of

¶J the above is being, or is likely to be, deliberately concealed."

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¶7.7 As to the assessment of overall criminality, the Guidelines require prosecutors to focus on

the conduct in question, the extent of the wrong-doing and the harm caused. They gave as non-exhaustive examples: "(a) The impact on the victim(s) of the conduct in question, including the consequences for the victim(s). (b) Whether the victim was under 18 or in a vulnerable position. (c) The overall loss and damage caused by the conduct in question (d) Whether the conduct was part of a repeated or routine pattern of behaviour of likely to continue. (e) Whether there was any element of corruption in the conduct in question. (f) Whether the conduct in question included the use of threats, harassment or intimidation. (g) The impact on any course of justice, for example whether a criminal investigation or proceedings may have been put in jeopardy. (h) The motivation of the suspect insofar as it can be ascertained (examples might range from malice or financial gain at one extreme to a belief that the conduct would be in the public interest at the other taking into account the information available to the suspect at the time). (i) Whether the public interest in question could equally well have been served by some lawful means having regard to all the circumstances in the particular case."

¶7.8 The Guidelines go on to make the point that the impact on the victim(s) of the conduct in

question is of considerable importance33 and the fact that invasions of privacy can be keenly felt and can cause considerable distress to victims (although "regard must be given to the level of the seriousness of the invasion, whether on the facts there was a reasonable expectation of privacy and whether the conduct in question was proportionate to the public interest claimed to be served"). As for the decision, the Guidelines go on to make two further, very important, points. These are:

"37. Prosecutors are reminded that assessing whether a prosecution is required in the public interest is not an arithmetical exercise involving the addition of the number of factors on each side and then making a decision according to which side has the greater number. Rather, each case must be considered on its own facts and its own merits. It is quite possible that one factor alone may outweigh a number of other factors which tend in the opposite direction. Even where there may be a number of public interest factors which tend against prosecution in a particular case, the prosecutor should consider whether the case should go ahead but with those factors being drawn to the court's attention so that they can be duly considered by the court. 38. Prosecutors should take special care in cases which involve the disclosure of journalists' sources. In approaching such cases, prosecutors are reminded that the European Court of Human Rights has indicated that:³⁴³⁴ s55 of the Data Protection Act 1998 p102, lines 12-21, Professor Christopher Megone, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/ Transcript-of-Morning-Hearing-16-July-2012.pdf Audit Bureau of Circulations, cited in Page, B, The Murdoch Archipelago, p120 pp55-56, lines 16-7, Mark Thompson, ibid; p12, para 34, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/01/Witness-Statement-of-Lord-Patten1.pdf pp18-19, para 48, ibid ibid, p11 pp62-63, lines 10-25, Baroness Buscombe, ibid p65, lines 4-10, Richard Thomas, ibid para 19, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DS-Philip-Williams.pdf http://www.newscorp.com/corp_gov/MSC_faqs.html#05 Anil Danwar, the Guardian, (7th May 2008, London), http://www.guardian.co.uk/politics/2008/may/07/ houseofcommons p2, para 10, ibid p3, para 1.14, Michelle Stanistreet, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/MS-Exhibit-11. pdf p21, lines 13-15, Peter Hill, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Afternoon-Hearing-12-January-2012.pdf pp16-19, lines 14-1, Steve Coogan, ibid; pp3-4, para 13-15, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/11/Witness-Statement-of-Steve-Coogan3.pdf p13, para 49, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Richard- Wallace.pdf p8, ibid p9, para 25, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sir-Paul- Stephenson2.pdf pp9-10, para 25, ibid IPCC Report – 'Corruption in the police service in England and Wales: Second report – a report based on the IPCC's experience from 2008 to 2011, May 2012, p5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/IPCC- Corruption-in-the-Police-2nd-Report.pdf p52, lines 16-19, Richard Thomas, ibid pp1-22, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Exhibit-RJT-49.pdf pp20-21, lines 24-25, Philip Coppel, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of- Morning-Hearing-17-July-2012.pdf pp59-60, lines 24-14, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript- of-Afternoon-Hearing-9-December-2011.pdf Part I, Chapter 5 Campbell, A, 2009, Diaries, Volume 1, p45 p29, lines 8-18, Andy Coulson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Afternoon-Hearing-10-May-2012.pdf p9, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-12.pdf pp11-12, Jonathan Stephens, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Afternoon-Hearing-25-May-2012.pdf p58, lines 8-12, ibid p5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Lord-ODonnell.pdf p37, para 5.93, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Ofcom-Measuring- Media-Plurality1.pdf Goodwin v UK (1996) 22 EHRR 123 paragraph 39; see also Ashworth Hospital Authority v MGN Ltd [2002] 1 WLR Campbell v MGN [2004] UKHL 22 p2, Sir Christopher Meyer, https://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Exhibit-SA- %E2%80%93-D8.pdf p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Covering-Letter-from-Ofcom.pdf p23, para 38, ibid p7, para 3.1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Ofcom.pdf http://www.presscouncil.ie/about-the-press-council/structures-and-funding-.2172.html p2, para 8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Joint-Submission-by-Core-Participant- Victims1.pdf Part K, Chapter 3, para 4.26 Application 22824/04, [2008] ECHR 746Show full note J "Protection of journalistic sources is one of the basic conditions of press freedom … Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public

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watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect of an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest."

¶7.9 When the DPP was giving evidence, it was made clear that it was not for me or for the Inquiry

to enunciate a prosecutions policy and, further, that it was a matter for him to determine whether or not he wished to.35 However, it is clearly important that he has chosen to accept the invitation proffered to him and now gone so far, after consultation, as to issue formal and thus definitive Guidelines.

¶7.10 It is right to pay tribute to this contribution to the criminal justice system, which provides clarity

to the circumstances in which a prosecution might be considered appropriate (and would obviously have excluded any prosecution should one have been considered in relation to the disclosure of MPs' expenses). It is beyond doubt that journalists would prefer guarantees and immunity but, put simply, that would be unjustified and would do nothing to ensure that appropriate standards of behaviour were set, encouraged, supported and enforced, not merely as a matter of criminal law but also editorial practice.

Public interest: other safeguards in the criminal process

¶8.1 Three other protective mechanisms are available for journalists, each of which can be described

shortly. First, although the court has no jurisdiction to interfere with the exercise by the prosecution of its discretion to prosecute,36 it can offer advice to the prosecutor and require instructions to be taken from the prosecuting authority before permitting the prosecution to commence. Furthermore, the court can stay a prosecution as an abuse of the process of the court, either because it represents an abuse of executive power37 or in circumstances which amounted to an 'affront to the public conscience';38 'so great an affront to the integrity of the justice system and therefore the rule of law that the associated prosecution was thereby rendered abusive and ought not to be countenanced by the court' is also sufficient.39 It is not necessary to seek to define how these principles might be applied to the prosecution of a journalist; given the proposed guidelines on prosecution, it is extremely unlikely they will ever arise, but there should be little doubt that the circumstances will be obvious if they did.

¶8.2 The second protective mechanism must be mentioned as a matter of constitutional reality.

There are examples, littered throughout history, in which juries are properly directed as to the law and, in particular, the ingredients of a specific offence, who then take the view that, irrespective of the law, they are not prepared to convict for what they perceive to be good reasons. The best (and oft-cited) example is the acquittal of Clive Ponting, a senior civil

¶J servant, of offences contrary to s2 of the Official Secrets Act 1911, following his disclosure to Tam Dalyell MP of documents relating to the sinking of the General Belgrano during the

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Falklands War in 1982. No reliance could be placed on the prospect of a jury taking this course in relation to a journalist but no analysis of the position would be accurate without it being mentioned.

¶8.3 The third protective mechanism is, in one sense, the ultimate safeguard. Although (in the

absence of abuse of process) the court cannot prevent a prosecution from being pursued and will conduct the trial entirely in accordance with the law, should a journalist be convicted, a very substantial discretion vests in the judge when it comes to sentence.40 Even in those cases governed by guidelines issued by the Sentencing Council (which every court 'must follow'), the ultimate discretion is preserved by the words 'unless the court is satisfied that it would be contrary to the interests of justice to do so': see s125(1) of the Coroners and Justice Act 2009.

¶8.4 Thus, if a prosecution has been pursued which the judge concludes did not correctly balance

the extent to which the public interest served by the conduct in question outweighed the overall criminality, it is open to him or her to reflect that fact in the sentence passed. At one end of the spectrum is an order of absolute discharge, prescribed by s12(1) of the Powers of Criminal Courts (Sentencing) Act 2000 in these terms: "Where a court is of the opinion, having regard to the circumstances including the nature of the offence and the character of the offender, that it is inexpedient to inflict punishment, the court may make an order discharging him absolutely."

¶8.5 The effect of such an order is that the conviction is "deemed not to be a conviction for any

purpose other than the purposes of the proceedings in which the order is made" and "shall be disregarded for the purposes of any enactment which imposes … or requires the imposition of any … disqualification or disability" on the convicted person: see s14(1) and (3) of the 2000 Act.

¶8.6 The argument that has been advanced is that, by this stage, the journalist has had to undergo

the indignity of prosecution and trial and that the decision of the judge that it is inexpedient to inflict punishment, doubtless because of the view that the judge takes of the prosecution, is of little comfort. This is a form of special pleading. The fact is that the journalist will have chosen deliberately to break the law in pursuit of a story. That should not be an everyday occurrence and it should be common place that no such decision is taken without the authority of the newspaper which employs him or her and then only following a careful consideration of the material that justifies it. If the journalist is freelance, it will be extremely wise for any such decision to be documented and the evidence base for it made clear.

¶8.7 In those circumstances, the decision of an independent prosecutor should not be feared or

considered an unnecessary interference with the freedom of the press: it is a check on the exercise of that freedom which ensures that it is not being abused. There are then potential checks on the prosecutor's decision, ultimately, by the court should a prosecution ensue and reach the stage of sentence. Provided appropriate attention is paid to the importance of a free press and the duty of the press to hold power to account, there is no reason why journalists should not be subject to exactly the same checks and balances that every other member of society has to endure should they seek to exercise some right or privilege. J

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The future

¶9.1 In the circumstances, save in relation to the modification of the defence and the increase

in the maximum penalty for an offence under s55 of the Data Protection Act 1988 (which requires an order from the Secretary of State implementing the provisions of s77-78 of the Criminal Justice and Immigration Act 2008),41 I do not recommend that any change is necessary to the substantive criminal law.

On the basis that the provisions of s77-78 of the Criminal Justice and Immigration Act 2008 are brought into effect, so that increased sentencing powers are available for breaches of s55 of the Data Protection Act 1998, I also recommend that the Secretary of State for Justice use the power vested in him by s124(1)(a)(i) of the Coroners and Justice Act 2009 to invite the Sentencing Council of England and Wales to prepare guidelines in relation to data protection offences (including computer misuse). With the new statutory maximum and the lack of precedent, it is important that courts recognise the gravity of this type of offending and are also provided with guidance regarding the implications should circumstances arise when it becomes necessary to consider the commission of this type of offence by a journalist.

¶9.2 The value of involving the Sentencing Council is obvious. Before producing a guideline, the

Council is required to consult on a draft and include within that consultation process "such other persons as the Council considers appropriate":42 only then is a guideline promulgated. It is inconceivable that the Council would not consider it appropriate to consult the Information Commissioner, the media and any other interested parties on the appropriate categories of the offence, the range of sentence for each category and both the aggravating and mitigating circumstances.

¶9.3 Turning to the procedural criminal law, in submissions concerned with recommendations

for a new more effective policy and the future conduct of relations between the police and the press, the Deputy Commissioner, Craig Mackey, has identified three issues of particular significance. Each of these is concerned with the operation of the PACE. The first concerns what he describes as the 'camouflage of apparent co-operation,' which itself can defeat an application for a production order because of the requirement in the access conditions, set out in para 2(b) of Schedule 1 to PACE, that 'other methods' of obtaining the material have failed or have not been tried because it appeared that they were bound to fail. The second relates to the extreme difficulty of obtaining journalistic material by means of a production order. The third concerns the absence of a statutory exclusion from journalistic material of items held with the intention of furthering a criminal purpose: that situation is to be contrasted with the fact that 'criminal purpose' material is excluded from legal professional privilege by s10(2) of PACE. I shall deal with them in turn.

¶9.4 As to the first proposition, DC Mackey points to the evidence of non-cooperation that surrounded the attempt to search the NoTW building and what he described as 'the veneer J of apparent co-operation' which followed.43 On that basis, it is argued that the police would

not be able to satisfy the access conditions contained in para 2(b) because the company and its solicitors would always be able to point to assertions of willingness to assist, whatever was happening in fact. He submits that para 2(b) should simply be repealed.

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¶9.5 This proposition contains within it a far reaching challenge to the checks and balances that are

built into PACE and, for my part, I am not convinced that it would be appropriate to infer from this particular investigation a wider problem concerning obtaining material in circumstances such as obtained here: even if that is the case, it is not evidenced.

¶9.6 The second concern relates to the definition of journalistic material. The phrase is defined

by s13(2) PACE as 'in the possession of a person who acquired or created it for the purposes of journalism'. That phrase – the purposes of journalism – is not defined in the Act but has been given a narrow meaning in the context of the Freedom of Information Act 2000.44 I see no reason why there should be a different construction of the phrase in the context of PACE.

¶9.7 The third concern relates to the question whether journalistic material continues to fall

within the scope of excluded material (so as to fall within the scope of the second set of access conditions in Schedule 1 of PACE) if it has been created or acquired in furtherance of a crime. Mr Mackey poses the question: if there was iniquity such as crime or fraud did the duty of confidence ever arise? If not, then the journalistic material will not be held under an undertaking, restriction or obligation of confidence as required by s11(3) of PACE.

¶9.8 Mr Mackey's submission is advanced in this way:45

"The concept of confidentiality is subject to limiting principles, one of which is that the public interest in protecting confidences may be outweighed by some other countervailing public interest which favours disclosure, such as that a person cannot be the confidant of a crime or fraud (see Lord Goff in AG v. Guardian Newspapers (No. 2) [1990] 1 AC 109 at 282-3). However, the case law concerning the 'defence of iniquity' deals with whether a contractual duty of confidence can be enforced (see e.g. Gartside v. Outram (1857)²⁶²⁶ p59, line 23 et seq, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of-Morning-Hearing- 11-June-2012.pdf As a fundamental constitutional principle, the rule of law is now recognised in statute: see s 1 of the Constitutional Reform Act 2005 p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Professor-Christopher- Megone.pdf ibid p3, para 8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Mark-Thompson. pdf p13, paras 31-33, ibid Frost, C, Journalism Ethics and Regulation, p217 pp185-186, paras 254-261, 280.2, ibid p13, lines 5-8, ibid p12, para 16, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DS-Philip- Williams.pdf; Vodafone referred to voicemail telephone numbers as unique voicemail numbers (UVNs) whilst O2 referred to them as direct dial numbers (DDNs). Rather than use one or more acronyms, they will be referred to generically as unique voicemail access numbers p10, para 36, ibid http://www.publications.parliament.uk/pa/cm200809/cmhansrd/cm090511/debtext/90511-0003.htm p6, paras 23-24, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Sheryl- Gascoigne.pdf p1, para 1.1, Michelle Stanistreet, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/MS-Exhibit-11. pdf Part F, Chapter 6 pp65-66, lines 12-2, ibid p2, para 5.1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Susan- Panuccio.pdf p4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Dr-Rob-Mawby.pdf pp3, 76, lines 9-21, 7-13, Lord Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of- Morning-Hearing-7-March-2012.pdf p8, para 28, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Jeremy-Lawton. pdf Part G Chapter 3 Section 11 p97, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-Morning- Hearing-9-December-2011.pdf; pp50-51, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/12/Transcript-of-Afternoon-Hearing-9-December-2011.pdf p4, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Second-Witness-Statement-of-Richard- Thomas-CBE1.pdf; p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Third-Witness-Statement-of- Richard-Thomas-CBE1.pdf page 4-5, ibid p69, lines 6-15, Richard Thomas, ibid p4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Second-Witness-Statement-of-Alastair- Campbell.pdf p10, Alastair Campbell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Afternoon-Hearing-14-May-2012.pdf; pp69-70, Harriet Harman, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/06/Transcript-of-Afternoon-Hearing-12-June-2012.pdf; p8, Lord Mandelson, http://www.levesoninquiry. org.uk/wp-content/uploads/2012/05/Transcript-of-Afternoon-Hearing-21-May-20121.pdf p99, lines 19-23, David Cameron, ibid p37-38, ibid pp63-64, lines 22-2, ibid pp8-9, lines 15-13, Lord Patten, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Afternoon-Hearing-23-January-2012.pdf pp76-77, lines 25-2, Claire Enders, ibid HC Hansard, Debates, 29 January 1951, vol 483, col 681 [1997] QB 586 pp6-7, paras 39 and 40, ibid p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Max-Mosley.pdf; pp3-4, para 6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Media-Regulation-Round-Table.pdf K p4, para 4, ibid pp23-24, lines 23-11, Lord Black, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of- K Morning-Hearing-9-July-2012.pdf p6, para 7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Submission-by-working-group-led-by- Lord-Prescott.pdf p76, lines 13-22, Professor John Horgan, ibid pp51-73, Michael Gove, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-Afternoon- Hearing-29-May-2012.pdf Part K, Chapter 7, para 5.5 Von Hannover, cited above, para 65; Hachette Filipacchi Associés (ICI PARIS), cited above, para 40; and MGN Limited, cited above, para 143Show full note LJ Ch (NS) 113, Initial Services v. Putterill [1968] QB 396, at 410). There is no direct authority on whether confidentiality under the PACE statutory decision still applies, where it is in the context of criminal behaviour. A caveat was expressly introduced into s10(2) of PACE, dealing with legal professional privilege [to the effect that Items held with the intention of furthering a criminal purpose are not items subject to legal privilege]. However, no such caveat was introduced into sll of PACE dealing with journalistic material held in confidence."

¶9.9 The point is then made that similar provisions to Schedule 1 PACE are contained in Schedule 5

of the Terrorism Act 2005, which uses the same definitions of 'items subject to legal privilege', 'excluded material' and 'special procedure material' as in PACE. A simpler set of access conditions provides grounds on which an application for a production order could be granted under that Act even in relation to journalistic material (although one of the conditions is that it is in the public interest having regard to the benefit likely to accrue to a terrorist investigation if the material is obtained).46 The submission goes on (at para 3.6):

¶J

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"Parliament has therefore expressly allowed applications to be made for excluded material (including journalistic material obtained in confidence) in terrorism cases, and added a 'public interest' condition (similar to paragraph 2(c) of Sch.1 to PACE) under which the court can take into account, amongst other factors, whether the journalist or media corporation was involved in any criminal activity. Yet Parliament did not include any such provisions in PACE. It is arguable, therefore, that Parliament did not intend the courts to override the PACE definition of journalistic material held in confidence simply by saying it is not held in confidence where it is not in the public interest."

¶9.10 It is certainly remarkable that Parliament might have provided greater protection for

journalistic material than in relation to legal professional privilege as a matter of general law. Even more so that it would provide less protection for the material where the public interest is served in relation to a terrorist investigation than might be the case if that material has been created or acquired in furtherance of crime. Although the circumstances in which the provision might bite will hopefully be very rare, I see force in the submission that s11(3) PACE should be amended by providing that journalistic material is only held in confidence for the PACE provisions if it is held, or has continuously been held since it was first acquired or created, subject to an enforceable or lawful undertaking, restriction or obligation.47

¶9.11 I am very conscious that I have received submissions only from the MPS on this topic and

that there is potential room for argument that any amendment to PACE will have far wider ramifications of which I have not been apprised and go beyond the limited goals that DC Mackey seeks to achieve. Before any conclusion can be reached on any of these issues, appropriate consultation will be essential.

In the circumstances, without pre-judging any conclusion, I recommend that the Home Office should consider and, if necessary, consult upon (a) whether paragraph 2(b) of Schedule 1 to the Police and Criminal Evidence Act 1984 should be repealed; (b) whether PACE should be amended to provide a definition of the phrase "for the purposes of journalism" in s13(2); and (c) whether s11(3) of PACE should be amended by providing that journalistic material is only held in confidence for the PACE provisions if it is held or has continuously been held since it was first acquired or created subject to an enforceable or lawful undertaking, restriction or obligation.

¶J

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Chapter 3 The Civil Law

Introduction 1.1 Appendix 4 describes the current law and identifies the flexibility that has allowed the common

law to develop incrementally and in keeping with social developments and the principles enunciated in general terms by the European Convention on Human Rights. How otherwise could the law seek to deal with concepts which have only emerged in recent years, such as the explosion of communication on the internet, blogs which have the same (or greater) reach as traditional newspapers and the social media such as Facebook? The line drawn between personal and public space has to be re-evaluated in the light of the challenges that have been posed and it would be foolish to expect that change will not continue so that the challenges of next year will be different yet again to those faced today.

¶1.2 A very good example of the way in which the law has had to re-evaluate its approach can

be found in the developments relating to injunctive relief. Until the rise of the internet, with servers based out of the jurisdiction of the UK court but providing material to anyone with access to an online computer, and the additional changes consequent on social media, if the court prohibited the publication of any material, whether based on privacy, confidence or in any other circumstances, the law of contempt (for breach of the injunction) operated to ensure compliance. Attempts to ensure sufficient secrecy to provide effective relief led to what became known as super-injunctions, which in turn led to other difficulties.1

¶1.3 This Chapter is not intended to repeat the analysis of the way in which the substantive law

has developed but rather to deal with the problems facing those who seek to enforce their rights. It concerns the complexity of the process of civil law and the availability (or otherwise) of funding for that purpose. Again, it is not intended as a definitive analysis of civil law procedure; it is to provide a sufficient landscape of the problems faced by claimants, the dilemmas faced by defendants and the (perfectly legitimate) attempts of each to confront them. The present position of the substantive law will then briefly be considered.

Civil proceedings: the present risk of litigation 2.1 For those without the experience, it might be thought an easy matter to start civil proceedings

and, in some contexts, it is. In a myriad number of different circumstances, it is possible to do so on the internet. By way of example only, if a consumer wishes to pursue a retailer in relation to defective goods, if a tradesman wants to recover the amount that he is owed for work done and materials supplied, or if a landlord wants to commence proceedings for possession because of non payment of rent (or for other breaches of the tenancy), it is comparatively straightforward to access the court system and use a process called Money Claims On-line (MCOL) or Possession Claims On-line (PCOL) to do so. If the claim is not defended, obtaining J a judgment is equally straightforward, although rather more is involved when it comes to enforcement.

¶Appendix 4 and the Report of the Committee on Super-Injunctions chaired by Lord Neuberger MR: http://www. judiciary.gov.uk/Resources/JCO/Documents/Reports/super-injunction-report-20052011.pdf

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¶2.2 It goes further. The system encourages self help because, in a large number of cases, there is

no provision for public funding to assist those who wish to pursue remedies for breach of their contractual or other rights. Legal aid used to provide that assistance but, to a large extent, because of its cost, it is no longer available. Citizen Advice Bureaus will advise members of the public as to what they can do to enforce their rights (or resist attempts by others to pursue them); other organisations in the third sector do likewise. How that should happen, who should do what, and how it is to be funded are part of the wide debate that surrounds access to justice.

¶2.3 Where a claim is disputed, it is allocated to the type of trial associated with its value and/or

its complexity. For small claims, such as consumer disputes or debt up to £5,000, the case will almost invariably be heard in the county court using the small claims procedure that is available. This jurisdiction leads to a hearing that will be conducted by a District Judge on an informal basis; in most cases, either one or both parties will be unrepresented and will look to the judge to conduct the proceedings in such a way as respects the rights of both parties and apply the law (which, in this type of case, is usually but not invariably straightforward). The judge will reach a decision and so provide the parties with the resolution of their dispute.

¶2.4 In the context of this Inquiry, this straightforward means of obtaining access to justice is of

very limited assistance because actions in defamation can only be commenced in the High Court;2 it is unusual for such claims to be remitted to the county court and even more unlikely that they will ever be considered suitable for the small claims procedure. Quite apart from the specific provision in relation to defamation, however, the real problem is that there are a large number of types of claim that are too complicated for self help. Many (particularly in the area of media law) require legal help and even ingenuity to pursue.3 Lawyers then become essential. Those of sufficient personal wealth can afford to fund legal advice and representation. Those who are not, cannot. For them a different mechanism to provide access to justice was provided in the form of the conditional fee agreement (CFA). By this arrangement, solicitors can act for a client on the basis that they work on the principle "No Win, No Fee". In other words, solicitors approached by a potential client without funds make an assessment of the prospects of success in the case: if they consider that the prospects are good enough, they could offer this type of agreement, knowing full well that the law will recognise the agreement and, should their client succeed, allow them to obtain an order that the defendant in the litigation obtain an uplift (up to 100%) of the actual costs incurred (which will have to have been agreed by the defendant or assessed by the court). This uplift represents money that they would not earn from a fee-paying client but is intended to compensate for those cases which they take on but lose, when they forgo all the costs that they have incurred.

¶2.5 There is an additional complication. Litigation in this country normally operates on the

principle that the winner recovers his or her costs from the loser. If, for example, a member of the public sues a newspaper and wins, he or she can expect that the newspaper is good for the money and can pay the costs that the court orders to be paid; if the solicitors are working on a CFA, this will include the uplift. On the other hand, should the newspaper win, an order for costs will equally be likely to follow against the member of the public who may not have

¶J s15(2) of the County Courts Act 1984. The High Court can transfer proceedings to the county court pursuant to s40(2)

¶of the Act

¶A good example of this legal ingenuity provided one of the sparks that has generated this Inquiry. In an attempt to learn whether she had been a victim of phone hacking, in July 2009, Sienna Miller issued proceedings against the MPS seeking disclosure of any material in its possession that provided evidence that she could use to deploy against NI:

¶see http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Sienna-Miller.pdf. Her lawyers placed reliance on the decision in Norwich Pharmacal Co v. Customs and Excise Commissioners [1974] AC 133, obtained the order and the evidence. Many others have since followed suit.

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access to money and whose home or other assets would be at risk. To address that problem, the concept of after the event insurance (ATE) was introduced.

¶2.6 Everybody understands the protection that insurance provides. In the usual case, a premium

is paid on the basis that if the insured event arises during the period of the insurance, a specified sum will be paid. Life insurance operates on the basis that an identified lump sum will be paid during the currency of the contract if the person who is the subject of the insurance dies. Travel insurance can insure against the risk of cancellation, baggage being lost in transit, medical expenses being incurred or a host of other risks. ATE is different. The event has occurred before the insurance is taken out. This insurance, however, is to cover the risk of failure of the litigation that arises out of the event. The premium is calculated by the underwriters, based on the risk that the litigation will fail and the amount at risk (the costs that would be ordered to be paid to the winning side) for which insurance is sought.

¶2.7 ATE insurance has another benefit. As the law presently stands (although this is about to

change), the premium itself is fully recoverable as part of the costs of the action so that if the beneficiary of the policy succeeds, not only are the solicitors' costs (including the uplift of up to 100%) recovered but the premium for the ATE insurance is also recoverable. Furthermore, the premium can itself be conditional, in which circumstance it will only be payable if the action itself succeeds. On that basis, if the action fails so that the providers of the ATE insurance have to meet costs up to the insured limit, the solicitors will not recover their costs and the ATE insurers will not recover the premium (notwithstanding that they have had to pay out on the insurance). All this comes at a cost. Insurers will calculate the premium at an appropriate level so that recoveries in the successful cases compensate the loss of premium (and the costs paid) in the unsuccessful proceedings. It will be no surprise, therefore, that premiums have been high.

¶2.8 The consequence has been a massive increase in the costs of litigation for defendants who

lose and, thus, the cost of premiums for employers insuring against employees and public liability claims for those requiring road traffic insurance and many others. It has also increased the cost for those who self-insure, in which group newspaper titles are likely to be included. It resulted in lobbying the Government to change the rules, not only generally but specifically in relation to defamation. As a result, the Ministry of Justice issued a consultation paper on "Controlling costs in defamation proceedings";4 having reviewed the responses it decided to invite the Civil Procedure Rule Committee (CPRC) to consider draft rules to implement a number of measures to control costs in publication proceedings.

¶2.9 As a result, amendments to the Civil Procedure Rules and associated directions were

introduced in all civil proceedings. The first change was to require notice of ATE insurance to be given to the other party with the letter before claim or within seven days of taking out insurance. Second, additional information was required to be given as to whether premiums are staged and, if so, the stage at which increased premiums become payable along with the level of insurance cover. Furthermore, in relation to publication proceedings only, the Rules introduced a period during which, if the defendant admitted liability and made an offer leading to a settlement, the defendant would not be liable for the ATE insurance premium.5 J

¶2.10 Running parallel with these changes, however, there was significant concern about costs generally so that a far wider scale review was undertaken by Lord Justice Jackson. He http://webarchive.nationalarchives.gov.uk/+/http://www.justice.gov.uk/consultations/controlling-costs-in- defamation-proceedings.htm 5 http://www.parliament.uk/deposits/depositedpapers/2010/DEP2010-1241.pdf

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provided a preliminary report in May 2009;6 such was the significance of defamation and related proceedings (such as privacy) which generally involved the media that the topics were considered separately. Jackson LJ started by making the point that the monetary return by way of damages in actions of this type may not be substantial7 but that a claimant could attach great value to winning his claim because the judgment itself will provide vindication. This is an important point for two reasons. First, it emphasises the social objective of providing a mechanism for protection of reputation and personal privacy which is not easily protected simply by money. Second, it underlines that it would not be appropriate to require the same degree of proportionality in relation to costs as, for example, in a commercial dispute.

¶2.11 Another aspect of this type of litigation concerns what both claimants and defendants

describe as aggressive litigating. Representatives of the press point to the observations of Lord Hoffmann in Campbell v MGN Ltd8 referring to "the conduct of the case by the claimant's solicitors in a way which not only runs up substantial costs but requires the defendants to do so as well", so that with the risk of a success fee "the defendant is faced with an arms race which makes it particularly unfair for the claimant afterwards to justify his conduct of the litigation on the ground that the defendant's own costs were equally high". Paul Dacre made a similar point, criticising lawyers for running "relatively straight-forward" cases on CFAs for "as long as possible"9 although, as Jackson LJ observes, if "relatively straight-forward" means that the claimant is bound to win, the change in the rules will assist by accruing cost benefit to early admission. Jackson LJ also noted that three claimant firms laid the blame at the door of media defendants effectively (and positively asserted by one) for dragging litigation out. This has some echo in the evidence heard by the Inquiry regarding what has been described as defensive attack.10 In the context of this issue, however, it does not matter who is responsible.

¶2.12 Jackson LJ produced a final report in December 200911 and again returned to defamation

and related claims. He noted the argument that libel law imposed excessive restrictions on free speech, with the further point advanced in an opinion of Lord Pannick QC and Anthony Hudson that the present system of costs recovery imposed a disproportionate regime such that it "cannot be convincingly be established that it is necessary and proportionate to a legitimate aim" rendering compliance with Article 10 of the ECHR arguable.12 The first point was countered by the submission that it is always open to publish on the basis of what can be proved to be true and that there is no public interest in misinformation. While accepting that

¶Vol 1 is at http://www.judiciary.gov.uk/NR/rdonlyres/D2C93C92-1CA6-48FC-86BD-99DDF4796377/0/jacksonvol1low.

¶pdf and vol 2 at http://www.judiciary.gov.uk/NR/rdonlyres/642936FA-292D-4432-8CF2-B2A44C7FC4FB/0/ jacksonvol2low.pdf

¶Jackson LJ noted the 'notional' ceiling on general damages awarded in defamation in the region of £215,000 to

¶£250,000 (see Gur v. Avrupa Newspaper Ltd [2008] EWCA Civ 594; Tierney v News Group Newspapers Ltd [2006] EWHC

¶3275 para 10. In the final report he explained that the reason for this apparent limit is that "it is abhorrent if a claimant with serious personal injuries is treated less generously by the courts than a defamation claimant who (although distressed) remains fit and well"

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success fees and ATE premiums should cease to be recoverable, Jackson LJ was concerned to put other measures in place to ensure access to justice for claimants.

¶2.13 The special measures that he recommended were an increase in the general level of damages

for defamation and breach of privacy by 10% (in line with his recommendation in relation to damages for personal injuries) with effect from the date that CFA success fees cease to be recoverable. The second is that the success fee (in the future to be paid by the claimant out of damages rather than the defendant) would be subject to negotiation but "x% of base costs, subject to a cap, the cap being y% of damages". He goes on to observe:13

"The claimants in these cases (unlike personal injury claimants) do not need to devote any part of their damages to future care. Their main remedy … is vindication by the judgment of the court or the statement in court after settlement. I see no reason why such claimants should not be prepared to pay a substantial proportion of the damages to their lawyers as success fees."

¶2.14 The principal recommendation concerned the mechanism for achieving the intended social

objective of protecting claimants from adverse costs orders, on the basis that the paradigm libel case concerns an individual of moderate means and a well resourced media organisation. Jackson LJ therefore suggested qualified one way costs shifting for defamation and privacy cases, as similarly proposed for personal injury and judicial review so that the new provision of the Civil Procedure Rules (which would not require primary legislation) should provide:

"Costs ordered against the claimant in any claim for defamation or breach of privacy shall not exceed the amount (if any) which is a reasonable one for him to pay having regard to all the circumstances including: the financial resources of all parties to the proceedings; and their conduct in connection with the dispute to which the proceedings relate."

¶2.15 The broad recommendations made by Jackson LJ were accepted by the Government but the

concept of qualified one way costs shifting in relation to defamation and breach of privacy has not, as yet, been adopted. Before elaborating on the effect of that, it is necessary to identify the changes that have been made by legislation contained within Part 2 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

¶2.16 As enacted, s44 of the Act (amending s58 and s58A of the Courts and Legal Services Act 1990,

which concerns the regulation of CFAs and the recoverability of success fees) will mean that a success fee under a CFA will no longer be recovered from a losing party although, subject to further regulation as to calculation and as to cap, the lawyers conducting proceedings under a CFA will be able to recover the fee from a client. Save in circumstances irrelevant to the type of litigation connected to the press, s46 of the Act abolishes the right to recover the ATE insurance premium.

¶2.17 These provisions (due to come into force on 1 April 2013) undoubtedly remove the concern

expressed by the European Court of Human Rights in MGN v United Kingdom. They will also J dramatically affect the balance of the relationship between those who wish to complain about press conduct and the press.

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Litigation against the press

¶3.1 In order to understand the true impact of these changes to the law, it is necessary to go back

in time to the period when legal aid (that is to say, state support) was available to fund civil litigation. This was subject to the means of the applicant and sufficiently authoritative legal advice that there was a more than 50% prospect of success or, to put the test another way, that advice would be given to a man of moderate means that the prospects of success were sufficiently good to justify the costs risks of undertaking the litigation. For millions of people, legal aid was a lifeline and permitted access to justice for those who could never otherwise have afforded to pursue a remedy for breach of their rights. The further, additional, benefit of legal aid was that it acted as a shield as well as a sword.

¶3.2 Thus, not only did legal aid fund the legal costs of the assisted person, but (save in certain

limited cases) it prevented the court from making an adverse order for costs against that assisted person should he or she lose the case. In other words, for those whose means were such that they were not required to make any contribution to their own legal costs, a successful defendant would be unable to recover its costs. In the main, this impacted on insurance companies but the consequences were well known and built into the risk assessment and, doubtless, the premium.

¶3.3 In the same way that there was an exception to the way in which proceedings in defamation

could be commenced, there was a further exception in relation to legal aid: put simply, whatever the means of the individual, legal aid was simply not available to pursue litigation based on the torts of libel and slander. This was before the days when CFA agreements were lawful, with the result that only the very rich or, at least, those who could afford or were prepared to take the risk of a substantial costs liability of losing an action were able to litigate. Power was very much in the hands of the press who (by way of comparison with most potential litigants) were well able to afford to litigate; they had in-house lawyers who were very familiar with the law and more than capable of advancing the case of the relevant title forcefully and with authority. Except where a litigant was so wealthy that the risk was simply not a factor, that power was real and must have caused very many who felt aggrieved (whether justifiably or not) by defamatory statements to refrain from seeking to pursue any remedy.

¶3.4 In the same context, it must be borne in mind that even if a claim succeeded, damages for

defamation were large (usually then determined by a jury); it depended on what view the particular (inevitably inexperienced) jury took of the defamatory statement. In most cases, slander (or spoken defamation) required proof of actual financial damage although in libel (written or broadcast defamation), no financial damage is required. Thus, although a very substantial sum might be awarded as damages, it was by no means guaranteed.

¶3.5 CFAs changed the landscape entirely. Then, all who felt aggrieved at the way in which they

had been treated by the press could seek legal advice and the operation of the libel laws (with the defendant having to prove the defence of justification or the circumstances of qualified

¶J privilege) created a climate in which redress was far more likely to be attainable and the

power which had been with the press now moved to those who wished to sue. If a lawyer was sufficiently confident of the claim, proceedings could be threatened and then commenced on a CFA and the risk to the defendant was enormous. However modest any damages might be, the potential costs bill if the claimant succeeded, increased by 100% for the success fee and then further increased by the cost of the ATE insurance premium, was potentially prohibitive. The press felt driven to settle not only because the editor was prepared to accept that a mistake had been made or did not feel confident about the story that had been written but

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because, even if he or she did feel confident, the cost of losing was entirely out of proportion to the issue at stake.

¶3.6 This analysis is reinforced by the fact that defamation damages (now much more the province

of judges, with juries being confined to few cases) have become easier to assess and (in order not to outstrip damages for personal injuries) were unlikely to be particularly substantial. Aggravated damages have always been modest and exemplary damages (intended to be punitive) were awarded in defamation only where it is established that the defendant's conduct has been calculated to make a profit which might well exceed the compensation payable.14 Furthermore, in relation to privacy, the sum of £60,000 awarded to Max Mosley has been by far the largest award. In relation to his claim for exemplary damages, Mr Justice Eady adopted a restricted approach, deciding that it was not clear that misuse of private information was a tort to which the possibility of exemplary damages should necessarily extend: he considered it a matter for Parliament or, at the very least, the Supreme Court.15 Thus, the largest sum in play in connection with many claims in defamation and privacy claims is undoubtedly the costs.16

¶3.7 The change of the law enacted by Part 2 of the Legal Aid, Sentencing and Punishment of

Offenders Act 2012 will again alter the balance between those who complain about the press and the press itself. If damages for invasion of privacy are comparatively modest and there is no prospect of recovering either the uplift on costs that has previously been a feature of the CFA or the premium for ATE insurance, the economics of litigation move against those who would otherwise challenge the press in favour of the press. Neither has this point been lost on the Core Participant Victims, who have complained about their treatment at the hands of the press: many have given evidence to the effect that they have only been able to pursue a remedy against the News of the World (NoTW) because of the existence of the CFA regime and that without it, they would have been left without the wherewithal to pursue a claim for damages at all.17

¶3.8 Privacy claims and claims of the type that have been pursued against the NoTW are not

necessarily straightforward and, in the absence of appropriate legal assistance, there is no question of an equality of arms between those who claim to have been victimised and the press. The wealthy will be able to pursue a remedy in court; there will be less incentive for lawyers to take up the cases of those who are not because the potential uplift in costs now payable out of the damages is likely to be comparatively modest. Further, on the basis that the premium for ATE insurance will not be recoverable, it will be much more expensive to litigate with protection against an adverse order for costs and, in the absence of such protection, the risk of financial disaster may be real. On the other hand, it is not difficult to understand

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the very real dangers of a system which loads costs so heavily against defendants, such that it is never economic to contest a claim and always (almost irrespective of the merits) more sensible to compromise at an early stage. The consequent and real risk to freedom of expression (recognised in MGN Ltd v United Kingdom) is obvious.

¶3.9 In recommending qualified one way costs shifting in defamation and privacy cases, Jackson LJ

sought to find a balance between what might be described as the very substantial financial windfall of the CFA/ATE system on the one hand and the undeniable impact on access to justice by those without substantial means on the other. The recommendation has not found favour with the Government although it has emerged during the course of discussions about the draft Defamation Bill, now proceeding before Parliament. Thus, the Joint Committee on the Draft Defamation Bill18 observed (at para 89):

"We are concerned that defamation law will become even less accessible to the ordinary citizen because the Government does not plan to apply to defamation all Lord Justice Jackson's proposals that protect access to justice. For example, in respect of personal injury claims, there will be a cap on the amount that can be charged by lawyers as a success fee of 25% of the damages awarded. This cap does not apply to other civil claims, leaving the existing costs associated with 100% success fees in place. The Government's proposal to increase by 10% the level of general damages payable in civil cases is designed to go some way towards helping parties to pay for their own costs and to meet any success fee if they win. There is also the argument that parties are likely to take greater care over incurring costs when they are paying the costs themselves. However, we do not believe that the 10% increase in damages will be enough to make a difference, given that the average level of damages in defamation cases is no more than £40,000, and costs tend to be in measured in hundreds of thousands when a case goes to court. The mechanism recommended by Lord Justice Jackson to protect the less well-off—known as "Qualified One Way Costs Shifting" (QOCS)—will also not be available in defamation cases under the Government's proposals. This mechanism ensures that a claimant does not risk paying the costs of the defendant if the claim fails, unless they can afford to do so or have themselves acted unreasonably during proceedings. We consider that the application of this form of protection to defamation cases, as recommended by Lord Justice Jackson, may go some way to towards addressing the financial inequality that often exists. It is outside our remit to explore the impact of the Government's separate proposals on civil litigation costs reform in detail. Nonetheless we are sufficiently concerned about them to ask the Government to reconsider the implementation of the Jackson Report in respect of defamation actions, with a view to protecting further the interests of those without substantial financial means." [The emphasis is that of the Joint Committee.]

¶3.10 The response of the Government summarised the argument and recited that conclusion but

was not prepared, at this stage, to revisit the issue. It said:19 "74. The current CFA regime with recoverable success fees and ATE insurance has

¶J led to high costs across all areas of civil litigation, but there have been particular

concerns in defamation and privacy cases. These high and disproportionate costs hinder access to justice and can lead to a 'chilling effect' on journalism, and academic and scientific debate. The European Court of Human Rights judgment in January 2011 in MGN v the UK (the Naomi Campbell privacy case) found the existing CFA arrangements on recoverability in that particular case to be contrary to Article 10

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(freedom of expression) of the Convention. Changes to the existing CFA regime are therefore necessary. 75. The Government is aware of concerns around access to justice and the ability of those with modest means to pursue claims against often powerful media organisations. However, we do not believe that it is necessary to make any special provision in relation to the costs of privacy or defamation proceedings. As the Committee recognises, these claimants will benefit from a 10% increase in the general damages. The Government will continue to monitor the position following the implementation of the CFA reforms and the other reforms to the law and procedure for defamation claims which are being taken forward."

¶3.11 The Court of Appeal has taken the lead in relation to the increase in damages. On 26 July

2012, in Simmons v Castle,20 the occasion of an application to approve a settlement in a personal injury appeal was used by a court comprising the Lord Chief Justice, the Master of the Rolls and the Vice President of the Court of Appeal (Civil Division) to increase general damages in tort (that is to say, in relation to non pecuniary loss) by 10% from current levels with effect from 1 April 2013. A further judgment adjusted the way in which the increase will be implemented to take account of the legislative change to CFA arrangements.21

¶3.12 The problem with this approach, on its own, is that it fails to take account of one aspect of

the converse of the point recognised by Jackson LJ. He said (undoubtedly accurately) that a claimant would attach great value to winning his claim because the judgment would be vindication. In the case of defamation, that vindication is the public demonstration of success in the action, thereby neutralising the slander or libel. In the case of privacy, however, that which was private is no longer so and, irrespective of the condemnation that might flow from a judgment, what was placed in the public domain cannot be erased (even if some references can be removed from the internet). A modest increase in damages (themselves usually modest) will provide little encouragement to a claimant otherwise anxious to seek what might be entirely justifiable redress.

¶3.13 In the absence of some mechanism for cost free, expeditious access to justice, in my view,

the failure to adopt the proposals suggested by Jackson LJ in relation to costs shifting will put access to justice in this type of case in real jeopardy, turning the clock back to the time when, in reality, only the very wealthy could pursue claims such as these. I recognise (as did Jackson LJ) that most personal injury litigation succeeds with the result that qualified one way costs shifting in place of recoverable but expensive ATE insurance is just as likely to cost insurers less and, furthermore, that the same cannot necessarily be said for defamation and privacy cases. An arbitral arm of a new regulator could provide such a mechanism which would benefit the public and equally be cost effective for the press;22 if such a scheme is not adopted, however, I have no doubt that the requirements of access to justice for all should prevail and that the proposals of Jackson LJ should be accepted: I return to this recommendation at the end of this Chapter.

¶J

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The substantive civil law

¶4.1 The Inquiry has not provided a vehicle for detailed consideration of the substantive laws of

defamation and privacy. As to defamation, Parliament is presently debating the Defamation Bill, which has already been the subject of pre-legislative scrutiny at a level and with an expertise that I would not hope to emulate. In the circumstances, I do not consider it to be valuable either to go over that ground or to postulate what might be the effect of any legislation eventually enacted.

¶4.2 It might have been possible to review the law of privacy23 and there have been suggestions

that a statutory enunciation of such a tort could be of value. Again, how it might be formulated and its possible extent has not been the subject of detailed evidence. In any event, the way in which the common law has addressed these issues has allowed flexibility of approach and a sensible enunciation of the relevant factors to be taken into account when balancing the competing issues in fact sensitive cases. I pay tribute to the work of the judges who have contributed to the jurisprudence in this area with clarity and care. It does not appear that legislative intervention will do other than generate further litigation as attempts are made to discover the extent to which the new framework matches the developing law.24 It goes without saying that any code will have to follow the law and that decisions of any regulator will have to follow the code: that is as far as it is necessary to go.

¶4.3 I take the same view in respect of a statutory definition of the concept of the public interest.

Depending on the circumstances, different situations will invoke different aspects of the public interest and the relevant considerations will be fact sensitive and of variable significance. As time passes and different social culture and customs develop, so the test will have to adjust. Whereas a regulator should be able to identify the public interest in the context of the press (as the Editors' Code of Conduct seeks to do), the ability to adapt is important. Again, in line with the view expressed by the Joint Committee on Privacy and Injunctions, I endorse the view that the incremental approach of the courts to this concept is to be preferred and I do not recommend a statutory definition.25

Damages

¶5.1 There is rather more to say on the subject of damages because of the need to treat as

commensurate awards for non pecuniary loss in defamation and breach of privacy with similar awards (reflecting pain, suffering and loss of amenity) in claims for personal injury. In an attempt to ensure that balance is maintained, in John v MGN Ltd26 Sir Thomas Bingham MR (as he then was) put the matter in this way:27

"There is force in the argument that to permit reference in libel cases to conventional levels of award in personal injury cases is simply to admit yet another incommensurable into the field of consideration. … The conventional compensatory scales in personal injury cases must be taken to represent fair compensation in such cases unless

¶J and until those scales are amended by the courts or by Parliament. It is in our view offensive to public opinion, and rightly so, that a defamation plaintiff should recover

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damages for injury to reputation greater, perhaps by a significant factor, than if the same plaintiff had been rendered a helpless cripple or an insensate vegetable."

¶5.2 Because of the primacy of the verdict of a jury, the assessment of damages in defamation

could vary widely. Following Sutcliffe v Pressdram Ltd,28 trial judges were recommended to draw the attention of juries to the purchasing power of the award they were minded to make and the income it would produce and John marked the time from which the Court expressed the view that judges and counsel should be free to draw the attention of the jury to comparisons. Furthermore, in the light of the effect of s8 of the Courts and Legal Services Act 199029 the Court of Appeal is now far more willing to substitute its own view for that of the jury.30 As a result, more actions in defamation are now tried by judge alone (and the presumption in favour of jury trial is to be reversed by clause 8 of the Defamation Bill).

¶5.3 Considering the circumstances, it is not perhaps surprising that awards for breach of privacy

or breach of confidence have generally been comparatively modest. As already pointed out, the sum awarded to Mr Mosley (£60,000) being by far the largest31 although there have been other substantial awards: in an action both for libel and breach of confidence, for the latter (which concerned the disclosure of confidential harmful information), £30,000 was awarded. This would have been £40,000 but for the double counting for distress which was part of a further £50,000 awarded for libel.32

¶5.4 Other examples are somewhat lower. They include £5,000 awarded for the publication of

photographs taken of a ten year old girl without the prior consent or knowledge of her parents or guardians: the child was shunned after friends saw her face on the front of a pamphlet setting out the Borough's Aids strategy.33 £3,500 (including £1,000 by way of aggravated damages) was awarded to Naomi Campbell following the publication of her photograph leaving Narcotics Anonymous;34 £3,750 was awarded each to Michael Douglas and Catherine Zeta-Jones in connection with breach of confidence following the publication of covert wedding photographs;35 £5,000 awarded to Loreen McKennitt, from a former friend for violating the duty of confidence.36

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¶5.5 I say at once that I do not consider it a coincidence that these last awards have been to those

who could be described as 'celebrities': given the likely damages, it is only those who can afford it who have been able to bring such actions; CFAs might have assisted (as they have in the phone hacking litigation) but once, that source of funding is no longer available, the limited amount of money at stake and the high costs risks create a formidable obstacle for most, almost however egregious the breach of privacy or confidence might be. In saying this, I do not ignore the fact that many of these 'celebrities' chose to avail themselves of the CFA regime.

¶5.6 In the context of an award of the size which has been awarded in cases of the type discussed,

an increase of 10% will have little effect and will do almost nothing to ameliorate the impact of the loss of a CFA. In any event, although I recognise that damages for breach of privacy and confidence must be fixed with an eye on the equivalence of damages for pain, suffering and loss of amenity in personal injury cases, I am not satisfied that the assessment is presently pitched at the right level. I put the point in that way because neither do I consider that it is appropriate for the Inquiry, examining a wide range of issues, to undertake a fundamental re-appraisal of damages in this area or make recommendations in relation to change. Rather,

it seems more sensible to pick up the suggestion that the damages should also be available for breaches of data protection principles (referable to the duration, extent and gravity of the contravention)37 and to recommend a review of damages generally available in this area, whether the cause of action is breach of data protection or privacy or breach of confidence or other media related torts.

¶5.7 Although guidelines for damages in personal injury cases are available,38 there are none for

privacy or breach of confidence; judges only have the examples of awards that have been made at first instance or considered by the Court of Appeal. Rather than being dependent on a single view, a broader approach should be taken. The Civil Justice Council (CJC) was set up and established by s6 of the Civil Procedure Act 1997 and includes members of the judiciary, the professions, the civil service, consumer affairs bodies, lay advice and those able to represent the interests of particular litigants. Its functions include keeping the civil justice system under review, considering how to make it more accessible, fair and efficient, advising the Lord Chancellor and the judiciary on the development of the civil justice system and referring proposals for change to the Lord Chancellor and the Civil Procedure Rule Committee (CPRC).39

In the circumstances, I recommend that the Civil Justice Council consider the level of damages in privacy, breach of confidence and data protection cases, being prepared to take evidence (from the Information Commissioner, the media and others) and thereafter to make recommendations on the appropriate level of damages for distress in such cases. How the matter is then taken forward will ultimately be for the courts to determine.40

¶5.8 Aggravated damages are primarily awarded to compensate for injury to pride and dignity, J and the consequence of humiliation, and can include a penal element: this type of award is

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¶Chapter 3 | The Civil Law

the subject of detailed consideration in the Report of the Law Commission on Aggravated, Exemplary and Restitutionary Damages.41

This report, as long ago as September 1997, recommended that legislation should provide that this head of damages should only be awarded to compensate for mental distress and should have no punitive element. I do not seek to improve on the analysis contained in that report and recommend that it be adopted: on its own, however, it will not make a significant difference to the overall award.

¶The question of exemplary damages is different and is itself worthy of consideration.

¶5.9 I recognise that the law in relation to the award of exemplary damages is by no means

straightforward, having been considered in three cases in the House of Lords and one case in the Supreme Court in less than 50 years.42 An award can be made in only two categories at common law (oppressive, arbitrary or unconstitutional action by the servants of Government and cases in which the defendant's unlawful conduct has been calculated by him to make a profit for himself, which may well exceed the compensation payable to the claimant) and, third, where expressly authorised by statute. In one sense, it is appropriate to argue that the type of invasion of privacy and defamation involved in many of the circumstances which have been examined during the course of the Inquiry have been pursued specifically to make a profit (by maintaining of developing sales of the paper or encouraging readership rendering the publication more attractive for advertisers). On the other hand, I recognise the understandable reluctance of judges to extend this somewhat anomalous punitive jurisdiction without a clear basis in law for doing so.

¶5.10 Again, this topic was the subject of the Report by the Law Commission which recommended

that exemplary damages should be retained (although re-titled as punitive damages).43 It recommended that such damages should only be awarded where, in committing a wrong, the defendant 'deliberately and outrageously disregarded the [claimant's] rights'. Moreover, it should be capable of being awarded for any tort (including breach of confidence) and would be available if the judge considers that other remedies will be inadequate to punish the defendant for his conduct; for these purposes, the court may regard deterring the defendant and others from similar conduct as an object of punishment.

¶5.11 In that regard, it seems to me entirely appropriate that, when considering the question of

exemplary damages, the court should be entitled to consider membership of a regulatory body as being relevant to the willingness to comply with standards (whether or not there was a failure to comply in relation to the subject matter of the action). In addition, the demonstration of good internal governance in relation to an appropriate audit by the editor as to the origin of stories should also be material. Equally, but on the other hand, a refusal to participate in a regulatory body might itself be evidence of a deliberate decision to stand outside any approved regulatory regime which itself could go towards the demonstration of outrageous disregard, as could the absence or failure of any adequate procedures for internal governance. J

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¶PART J | Aspects of Regulation: The Law and the Press Complaints Commission

¶5.12 Although it is tempting to analyse the comparative jurisprudence, the matter is fully

discussed by the Law Commission and I see no value in repeating the argument. In that regard, I recognise that the Law Commission Report equally deals with other difficult issues44 which it is unnecessary for me to address. Having said that, to my mind, the basic principle is straightforward. The commercial benefit from publishing material obtained in breach of rights to privacy or confidence is likely greatly to exceed the basic award of damages (even if increased by the award of aggravated damages) and constitutes no real deterrent. In common with the Joint Committee on Privacy and Injunctions, I have no doubt that the court should be able to award exemplary damages in privacy cases45 and, I would add, breach of confidence and similar media torts.

In the circumstances, in line with the conclusion in the Report of the Law Commission on Aggravated, Exemplary and Restitutionary Damages, I recommend that exemplary damages (whether so described or renamed as punitive damages) should be available in actions for breach of privacy, breach of confidence and similar media torts as well as for libel and slander. Voluntary participation in a regulatory regime contained in or recognised by statute and good internal governance in relation to the sourcing of stories should be relevant to the decisions reached in relation to such damages.

Costs

¶6.1 The impact over the years of different funding arrangements and costs regimes to litigation

in this area is described above. Although the Government has made clear its concerns around access to justice and the ability of those with modest means to pursue claims against often powerful media organisations, the recommendations made by Jackson LJ for one way qualified costs shifting have not, to date, found favour. As the Joint Committee observed, access to justice must be maintained for all citizens seeking to protect their right to privacy.46

¶6.2 In the light of the very real difficulties facing those seeking access to justice, I have no doubt

that a regulator needs to provide a speedy, effective and costs-free regime which provides a mechanism for those who complain that their rights have been infringed to be able seek redress. This is equally in the interests of the press who, although an increased number of complaints might be made, will equally be able to hold up the system as a model of dispute resolution which is much cheaper (and less time consuming) than litigation through the courts. It would need to be staffed by experienced media lawyers but there are retired High Court judges and others very experienced in this area of law who are more than capable of taking on what could be an inquisitorial jurisdiction efficiently to resolve all but those which both parties agree (or the judge determines) need court process. One such proposal is discussed as part of the regulatory regime later in the Report.47

¶6.3 The purpose of this part of the Report is not to analyse the way in which such an arbitral system

might operate but to consider how the law could recognise its existence and encourage its use. The mechanism for doing so is in relation to costs. Thus, Part 44.3 of the Civil Procedure

¶J Rules 1998 (as amended) specifically provides the court with a discretion as to whether costs should be payable by one party to another, the amount of those costs and when they are to

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be paid; it identifies the general rule that the unsuccessful party will be ordered to pay the costs of the successful party but specifically provides a discretion to make a different order. Included within all the circumstances to which the court must have regard is the conduct of the parties48 and the concept of conduct includes "conduct before, as well as during, the proceedings".49 In that context, it is important to bear in mind the overriding objective of the Civil Procedure Rules to enable the court to deal with cases justly.50

¶6.4 There is no doubt that if a party to litigation turns down the opportunity to participate in

ADR (particularly if encouraged by the court), costs consequences may follow. Thus, in Halsey v Milton Keynes General NHS Trust; Steel v Joy,51 the court considered the consequences of failure to participate in mediation as a form of alternative dispute resolution. It recognised that unreasonable refusal to agree to ADR could properly be reflected in adverse orders for costs and identified the relevant factors to be taken into account. In those cases, mediation was intended to encourage parties to reach an agreement on a sensible resolution of their dispute; arbitration (as here proposed) provides an alternative to a trial and is intended to be speedy, effective and without the cost implications of litigation in court. It results in a solution that is imposed by a judgment. The case for recognising the value of this form of dispute resolution (and the consequential saving of costs) is, therefore, much stronger and entirely consistent with the overriding objective of the Civil Procedure Rules.

¶6.5 This analysis provides ample precedent for the use of the powers of the court to encourage

appropriate alternatives to litigation and there could be no better method for resolving a dispute with the press than by utilising a specialist tribunal, set up specifically for the purpose; it should be staffed by experts in media law who understood both the law and the practices of the press and so could cut through procedural complexity and resolve the issues speedily, cheaply and effectively.

¶6.6 It is obviously important that, before taking into account the availability of the remedy, the

court would have to be satisfied that a mechanism for dispute resolution set up by one of the parties (in this case the publisher), is fair: it would not be sufficient if the alternative was an ad hoc arrangement in which nobody was representing the interests of the claimant. For that reason, I consider it very important that the arbitral system should be one part of a regulator which is recognised as being truly independent of the press and independent of any other interests which might affect its ability to be seen to be fair. An ad hoc arrangement (or even a settled scheme for one publisher) would be too dependent on the goodwill of those who made the arrangement or the publisher who set up the scheme to guarantee that independence.

¶6.7 If an arbitral mechanism was set up through the regulator, however, I see no reason why the

courts should not embrace it as an extremely sensible method of pursuing the overriding objective in civil cases. In those circumstances, costs consequences could flow both ways. Thus, if the relevant media entity was regulated and thus able to utilise the availability of the arbitration service, it would be strongly arguable that a claimant who did not avail himself of that cheap and effective method of resolving his dispute but, instead, insisted on full blown High Court litigation, should be deprived of any costs even if he is successful: that might J

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also be a powerful incentive for a publisher to join the regulator, particularly if concerned that an extremely wealthy claimant might otherwise seek to overwhelm the publisher with expensive litigation out of all proportion to what was at stake.

¶6.8 Equally, however, if a publisher did not join the regulator, with the result that the specialist

arbitral system was not available to a claimant wishing to pursue a remedy (particularly if of limited means and, thus, unable otherwise to obtain access to justice), I see no reason why the court should not be able to deprive even the successful publisher of costs that would not have been incurred had the alternative arbitration been available. I go further and suggest that, in a case legitimately brought and potentially borderline, the court would even retain the discretion to order the successful publisher to meet the costs of an unsuccessful claimant (although I recognise that this would not be the case if the court was dealing with vexatious or utterly misconceived litigation). Ultimately, the discretion of the court would govern all these issues, but I see only advantage in supporting an arbitral system that could be seen to have been independently set up and operated by a regulator, albeit itself set up by the press but managed and run independently of it.

¶6.9 It is obviously important that there should not be an ever-running argument about the adequacy of the arbitral mechanism.

In the circumstances, I recommend that the Civil Procedure Rules should be amended to require the court, when considering the appropriate order for costs at the conclusion of proceedings, to take into account the availability of an arbitral system set up by an independent regulator itself recognised by law.52 The purpose of this recommendation is to provide an important incentive for every publisher to join the new system and encourage those who complain that their rights have been infringed to use it as a speedy, effective and comparatively inexpensive method of resolving disputes.

¶6.10 It is obviously necessary to consider the alternative, that is to say, what would happen if

there was no identifiably independent regulator that could be recognised by the courts as providing an acceptable alternative mechanism for the resolution of disputes. It is here that I share the very real concern expressed by the Joint Committee in relation to access to justice. The prospect of returning to a system whereby only the very rich could pursue defamation, breaches of privacy and confidence or other claims in tort against publishers because of the potential costs consequences would, in my view, be a seriously retrograde step in our attempts to provide justice for all. In my view, it is simply not acceptable. The very least that could be done is to revert to the scheme proposed by Jackson LJ.

In the absence of the provision of an alternative mechanism for dispute resolution, available through an independent regulator without cost to the complainant, together with an adjustment to the Civil Procedure Rule to require or permit the court to take account of the availability of cost free arbitration as an alternative to court proceedings when considering orders for costs at the conclusion of

defamation, privacy, breach of confidence and similar media related litigation as proposed by Lord Justice Jackson.

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