The Rt Hon Gordon Brown MP and his son's illness

¶Introduction

¶5.1 In November 2006 The Sun published private medical information about the son of the then

Chancellor of the Exchequer, the Rt Hon Gordon Brown MP. At the time of publication, Mr Brown's son was four months old, and the story reported his diagnosis of cystic fibrosis.83 The Inquiry heard extensive evidence in relation to this story and, because of the light it throws on a number of aspects of the culture, practices and ethics of the press, it is appropriate to address it in some detail. The factual disputes which arose during the course of the evidence will only be resolved to the extent necessary to illuminate the culture of the press in general.

¶5.2 For example, there is considerable dispute between the then editor of The Sun, Rebekah

Brooks and Mr Brown as to how the story was sourced in the first place. For a number of reasons which will be explained, it is simply not possible to resolve that dispute on the available evidence, and it would have been difficult to do so even had the Inquiry decided to investigate the story in depth and require further evidence to be provided. What is not in dispute is that there was no public interest in the story sufficient to justify publication without the consent of Mr and Mrs Brown.84 The medical information published by the newspaper was private information about a very young child and it therefore deserved the utmost protection. Prior to publication, only a small handful of doctors, other health workers and family members ought to have been, and the Browns would say were, aware of the diagnosis, and it would have been obvious to anyone in possession of the information that it was highly sensitive and not to be disclosed without consent.

¶5.3 In July 2011, at the height of the phone hacking scandal, Mr Brown made further allegations as to how The Sun might have obtained the material for the original 2006 story. The response

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of The Sun to those allegations shares similarities with the response of the Daily Mail to Hugh Grant's evidence to the Inquiry, addressed at Section 6 below.

¶5.4 Furthermore, Mr Brown's evidence to the Inquiry itself generated a hostile reaction in certain

sections of the press. That reaction, and the ultimate resolution of the issue to which it related, is discussed below.

¶The Sun's source 5.5 The article published in The Sun on 13 July 201185 stated that the source of the original story

was a 'shattered dad whose own son has the crippling disease and who wanted to highlight the plight of sufferers'. Although the article contains the categorical denial of this gentleman that he had seen confidential medical records ('all of which is the truth as I shall answer to God'), it is not specific as to how he had come about this information, save to allege that 'he has links with the Brown family'.

¶5.6 Mrs Brooks was asked to explain this lack of specificity when she gave evidence. Her account was as follows:86

''Q. How had he got the information? A. He'd got the information because his own child had cystic fibrosis and he'd got the information, I should say, through a very small – it's not a small charity, but there is a charity aspect to the Cystic Fibrosis Society, and he got it slightly by involvement through there. F Q. What sort of involvement? A. Mr Jay, I'm not going to tell you any more about the source because I don't want to reveal his identity. Q. But you're not. A. Well, I feel uncomfortable answering that because I think it could lead to his identity. You're asking me where information came from and the source, and I think they are matters that I have to respect in a source coming to the newspaper. The main point of this issue is Mr Brown accused the Sun of hacking into his son's medical records to get this story and that wasn't true. LORD JUSTICE LEVESON: It wasn't accurate? A. No, sorry, it wasn't accurate.''

¶5.7 Although the matter was pursued further with her, Mrs Brooks was adamant in her refusal

to breach the confidentiality of the source. Without knowing more of the background circumstances, and exactly how the source had apparently obtained the information from the charity mentioned, the Inquiry is not in a position to judge whether Mrs Brooks' refusal to answer further questions – on the ostensible basis that the source's identity might be disclosed – was justified or not. Further, the possibility that the source, (assuming he existed), obtained this information by unlawful or unethical means has not been overlooked, but here again the Inquiry is in no position to make a finding.

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¶5.8 Mr Brown's evidence was that The Sun's account was incorrect, and that the information as to his son's medical condition had been obtained in circumstances of a breach of confidentiality:87

''In 2006, the Sun claimed that they had a story from a man in the street who happened to be the father of someone who suffered from cystic fibrosis. I never believed that could be correct. At best, he could only have been the middleman, because there were only a few people, medical people, who knew that our son had this condition. In fact, for the first three months that our son was alive, I just have to say to you, we didn't know, because there were tests being done all the time to decide whether this was indeed his condition or not, and only by that time, just before the Sun appeared with this information, had the medical experts told us that there was no other diagnosis that they could give than that this was the case. So only a few people knew this. I have submitted to you a letter from Fife Health Board which makes – the National Health Service in Fife, that is – which makes it clear that they have apologised to us because they now believe it highly likely that there was unauthorised information given by a medical or working member of the NHS staff that allowed the Sun, in the end, through this middleman, to publish this story. Now, whether medical information should ever be hounded out without the authorisation of a parent or of a doctor through the willingness of a parent is one issue that I think it addressed, and I know the Press Complaints Commission code is very clear, that there are only exceptional circumstances in which a child's – or information about a child should be broadcast, and I don't believe that this was one of them."

¶5.9 Mr Brown's oral evidence contained an accurate summary of the contents of the letter from F the Fife NHS Board to which he referred.88

¶5.10 The written closing submissions lodged on behalf of Mrs Brooks urge the Inquiry not to reach

any finding of fact on the source of the story.89 The points are made that not merely was Mrs Brooks entitled to refuse to disclose her source, but also that NI has other documentary material in its possession which could throw light on the matter. I accede to Mrs Brooks' submissions, but not without a degree of reluctance. The letter from the Fife NHS Board does not conclusively prove that Mrs Brooks' account is incorrect: full details of the investigations it carried out are not provided, and the term 'very likely' does not exclude other possibilities. This case study illustrates precisely the sort of difficulties which arise as and when a journalist such as Mrs Brooks invokes the protection for sources vouchsafed by clause 14 of the Editors' Code of Practice.90 Further, it is one of the consequences of the very real protection that the law rightly gives to journalists in relation to sources but it serves to underline the difficulty in holding the press to account (or allowing the press to vindicate itself) if there is a challenge to the propriety of the way in which the information has been obtained. Mrs Brooks' evidence to the Inquiry could well have been accurate; on the other hand, if it had been inaccurate, the means of exploring and demonstrating that proposition is precluded by the terms of clause 14 if not the general law.

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"Our press office was phoned by a journalist from the Sun and said that they had this story about our son's condition and they were going to publish it. I was then contacted. I was engaged in the pre-budget report. I immediately, of course, phoned my wife, Sarah, and we had to make a decision. If this was going to be published, what should happen? We wanted to minimise the damage, to limit the impact of this, and therefore we said that if this story was to be published, then we wanted a statement that went to everyone that was an end to this, and there would be no further statements, no days and days and days of talking about the condition of our son. Unfortunately, this was unacceptable to the Sun newspaper. The editor phoned our press office and said that this was not the way that we should go about this, and to be honest, if we continued to insist that we were going to make a general statement, the Sun wouldn't, in future, give us any chance of advance information on any other story that they would do. It was at that time that the editor of the Sun phoned my wife, whose aim then, having accepted that this was a fait accompli – there was no thought that the Press Complaints Commission could help us on this. I think we were in a different world then. Nobody ever expected that the Press Complaints Commission would act to give us any help on this, and we were presented with a fait accompli, I'm afraid. There F was no question of us giving permission for this. There was no question of implicit or explicit permission. I ask you: if any mother or any father was presented with a choice as to whether a four-month old son's medical condition, your child's medical condition, should be broadcast on the front page of a tabloid newspaper and you had a choice in this matter – I don't think there's any parent in the land would have made the choice that we are told we made, to give explicit permission for that to happen. So there was no question ever of explicit permission."

¶5.12 Mrs Brooks' account was that the Browns, and Sarah Brown in particular, gave their consent to the publication of the story:92

''A. I think in the period of time of receiving the information and publishing the information, which is – which, by the way, went to all newspapers – all newspapers published it around the same day – I spoke to the Browns. I will have spoken probably to people around them but I definitely had more of a communication with Sarah Brown, as she was my friend, and I probably discussed it with her more. The sequence of events were: Fraser Brown was born in July. I think the information came to the Sun in the late October. I think the Browns' position at the time was very much that they had had the tests confirmed, and as Prime Minister and his wife, they felt that there were many, many people in the UK whose children suffered with cystic fibrosis. They were absolutely committed to making this public and they were also – one of the most overwhelming memories of that time for me was the Browns' insistence

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that when the story was published, that we absolutely highlighted the positives in association with the cystic fibrosis association. Q. The story was published in November, when the child was four months old – I said four years old; that's incorrect – and before, I think, the diagnosis was confirmed. Is that true? A. No. I think – and this is again from my conversations back in 2006 with the Browns and people who advised them – I'm pretty sure we ran the story in the November and the tests were confirmed some time in the October. Q. When you spoke to Mrs Brown – that's your evidence, Mrs Brooks – was it on the basis that: "Look, we've got this story, we're going to run with it, let's see how we can run with it in a way which is least harmful to you", or something like that? A. Absolutely not, and I think that – as you've seen in my witness statement, I was quite friendly with Sarah Brown at the time. Very friendly. She'd been through a hell of a lot already. I think my first thing I would have said to both of them was – would have been a much more considerate and caring response to hearing the news myself. I was very – I was very sad for them. I didn't know much about it and I wanted to find out what had gone on. You have to remember that the – this is 2006. This is only five years later that Mr Brown had ever said anything – that he was in any way concerned about my behaviour, the behaviour of the Sun, how we handled it. Indeed, after 2006, I continued to see them

¶F both regularly. They held a 40th birthday celebration party for me. They attended

my wedding. I have many letters and kind notes. Sarah and I were good friends. And so I felt – hence the story in the Sun in 2012 was quite tough – was that Mr Brown's recollections of that time weren't the same as my own.''

¶5.13 Mrs Brooks' testimony serves to highlight two lacunae in the evidence which renders it difficult

for the Inquiry fully to resolve the stark evidential dispute, or at the very least profound differences of recollection, between these two witnesses. First, Mrs Brooks stated that other newspapers published the story 'around the same day'. It is now clear that those other newspapers published the story on the basis of a press release sent out by the Browns the night before publication in The Sun. Although Mr Brown did not give evidence in relation to this press release, it appears (for reasons set out in more detail below) that the Browns issued the press release once they realised that publication in The Sun was inevitable. Second, the Inquiry did not hear directly from Mrs Brown. To have required her to give evidence would have been a disproportionate step in all the circumstances, and the Inquiry cannot properly speculate as to what assistance, if any, she might have been able to give.

¶5.14 Mrs Brooks' account possesses at least two surprising features. First, the claim that the Browns

were 'absolutely committed to making this public' frankly defies belief: one hardly needs Mr Brown himself to point out that no parent in the land would have wanted information of this nature to be blazoned across the front page of a national newspaper. On the other hand, if the complaint is well founded, the fact that the Browns appeared to have remained friendly with Mrs Brooks after November 2006 is itself somewhat surprising. Mr Brown's explanation, that his wife 'is one of the most forgiving people I know',93 may indeed be correct (and I do not seek for one moment to challenge it), but, in these circumstances, she would have to be. Interestingly, Mr Brown went on immediately to say that 'we had to get on with the job

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of doing what people expect a politician to do, to run a government':94 this itself throws much light on the relationship between the press and politicians, with its implication that the imperative of continuing to 'get on with' NI was abiding.

¶5.15 It is possible to reconcile this apparent conflict of evidence without concluding that any

witness sought deliberately to mislead the Inquiry. Mr Brown's evidence was assuredly right when he said that he and his wife felt that they were being presented with a fait accompli. A journalist, and not Mrs Brooks, had telephoned his press office with the news that The Sun was going to publish this story; or, putting the matter at its lowest, this was the inference which the press office drew. From their own previous experience or knowledge of the culture, practices and ethics of the press, the Browns now perceived that this was now a matter of damage limitation, and they sought to come to an arrangement with The Sun on that basis. Clearly, the Browns did not believe that they could persuade The Sun or its editor to take a different course altogether, otherwise they would have tried to do so. Some of the detail of Mr Brown's account could not be put to Mrs Brooks when she testified, because it simply was not available at that stage. What is clear is that Mrs Brooks telephoned Mrs Brown and each believed at the end of that conversation that a concordat had been reached: Mrs Brown, because she had no option; and Mrs Brooks, because the Browns did not explicitly oppose the publication of the story.

¶5.16 Mrs Brooks is to be criticised in two interconnected respects, but only to the extent necessary

to address the culture, practices and ethics of the press. I do not find (as Mrs Brooks asserted) that the Browns were absolutely committed to making the fact of their four month old son's illness public, nor do I accept that their press release the night before publication evidences that fact. However, it should be made clear that I am not thereby holding that Mrs Brooks F deliberately misled the Inquiry. Mrs Brown is highly unlikely to have said anything expressly along the lines that she was "absolutely committed" to making the fact of their son's illness public, and insofar as Mrs Brooks drew that inference from Mrs Brown's acquiescence or failure to remonstrate, she is guilty of a degree of blinkeredness if not self persuasion. Had she stopped to place herself in Mrs Brown's situation, she would have begun to understand the predicament in which she had been placed. In all the circumstances, Mrs Brooks should have asked a series of direct questions of Mrs Brown to satisfy herself that consent was fully and freely given, and should have given her the express option of vetoing publication.

¶5.17 In the result, the Browns managed the revelation of the information via their own press

release, the story was subsequently published in a way which placed the Brown family in a sympathetic light, and The Sun had its front page. The Browns had been presented with Hobson's choice, and they took the line of least resistance. In that way they avoided both the risk of The Sun publishing an account to which they had not contributed, and the possible political fallout with NI which might have ensued had they strenuously objected.

¶5.18 The fact that Mrs Brooks might well not have published this story in The Sun had the Browns

expressly asked her not to do so does not reflect badly on her, but speaks volumes for the culture, practices and ethics of the press. In this particular instance, she held all the reins of power, and the Browns held none; to the extent that they felt that could not even ask Mrs Brooks to back off.

¶5.19 Further, this form of fait accompli is a familiar one to this Inquiry. The Brown's evidence

strikes concordant notes with the evidence of witnesses such as Ms Diamond and the singer, Charlotte Church, to name but two.

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¶False smear

¶5.20 The article published in The Sun on 13 July 201195 commenced with this sentence:

'The Sun today exposes the allegation that we hacked into Mr Brown's medical records as FALSE and a smear'.

¶5.21 Unsurprisingly, given that similar language had been used by another newspaper in November

2011 and this was still fresh in the Inquiry's mind,96 I pursued a line of questioning with Mrs Brooks on this matter:97

''LORD JUSTICE LEVESON: Now, my question. Would you look, please, at the first line of the Sun article: "The Sun today exposes the allegation that we hacked into Gordon Brown's family medical records as false and a smear." My concern is whether it's fair to describe that as – it may be incorrect, but as "false and a smear". A. In the general point, I can absolutely see what you're saying, sir, is correct, but this was not – this was a particular journey that the Sun had been involved in since the beginning of the information coming into the Sun newsroom and what happened after that and subsequent to that. LORD JUSTICE LEVESON: But if he never knew how you got it, all you can say – and you're entitled to say, "He's just got it wrong." A. He came to the wrong assumption in 2011.

¶F LORD JUSTICE LEVESON: And that's absolutely fair. So the issue is whether it's part

of the culture of the press that actually attack is the best form of defence. So people don't just get it wrong; it's "false", in capitals, and "a smear". Do you see the point I'm making? A. I do see the point you're making, but, sir, the context of that article was written after Gordon Brown had – first of all, I think his first appearance in Parliament since he stepped down as Prime Minister was to come to the House and speak incredibly critically and, in some cases, made wrong assumptions through his testimony to the House, and then the second thing he did, he then went on, I think, the BBC – I can't remember – to do an interview with another wrong assumption that the Sun had got the story from [the child's] medical records, and I think combining the two, if you like, attacks from Mr Brown that had never ever been raised by him in any shape or form with any of us at News International or Mr Murdoch – he never once mentioned press ethics or practices in his – in our entire relationship – that the Sun felt that it was a smear, that he was doing it five years later for a particular reason, and I think that's why they wrote the story that they did. Now, I was chief executive at the time. I didn't write the story but I'm defending their right to write the story like that. LORD JUSTICE LEVESON: All right. You've provided an answer, but actually what you've demonstrated is that the Sun believed – and they may be right or wrong, I don't know – that Mr Brown had added two and two and two and got 27, whereas in fact, if you took each one of the incidents on their own, it may have been he may have

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made a mistake, he may be wrong to reach the conclusion – that's all fair enough, entirely proper, but it goes a bit further than that. A. I accept that this story does, but if you imagine for the Sun, the Sun – and I know I keep mentioning this, but the Sun has a trust with its readership.''

¶5.22 Ultimately, the issue for Mrs Brooks was the reputation of The Sun in the eyes of its readers.

This struck another chord, in that in a different context (the pursuit of campaigns) Mrs Brooks stated that all that The Sun did was to reflect the viewpoint of its readers. In other words, editors and journalists are mere reflectors of public opinion rather than the drivers of it, and the readers are always the pre-eminent concern. Mrs Brooks discountenanced the suggestion that by criticising Mr Brown in this way the paper was unnecessarily raising the temperature and indulging in an exercise in 'aggressive defence'; she could understand the point that was being put to her, but could not begin to see the issue from Mr Brown's perspective, instead preferring to defend the paper's right to publish this type of story.

¶5.23 The parallels with the 'mendacious smear' story98 and other evidence referred to below,99 are obvious.

¶The aftermath of Mr Brown's evidence to the Inquiry 5.24 On 25 June 2012 Linklaters on behalf of NI wrote to the Inquiry drawing its attention to an article in The Sunday Post (a newspaper published in Dundee) on 17 June which stated:

'The Sunday Post heard about the baby's condition weeks before they [sic] were F published in The Sun. We contacted the Browns, and they told us that they did not want to comment. We respected their privacy, and didn't print the story. Remember that not all newspapers are the same.'

¶5.25 Rather than draw attention to the way in which The Sunday Post sought to distance itself

from the conduct of The Sun newspaper, as well as to the fact that the Brown family's 'no comment' is hardly consistent with Mrs Brooks' evidence that they were absolutely committed to broadcasting their son's condition, the point Linklaters made was that Mr Brown's evidence to the effect that 'there were only a few people, medical people, who knew that our son had this condition' must be incorrect. Linklaters asked the Inquiry to obtain further evidence from The Sunday Post and Mr Brown relating to this issue.

¶5.26 On 28 June 2012 The Times published a short piece which reported on Linklaters' request to

the Inquiry, and referred to Mr Brown's claim that The Sun had 'illegally obtained information from his son's medical records'.

¶5.27 However, on Wednesday 2 July The Times felt constrained to publish an apology in these terms:

'The Sunday Post has now explained it did not know that the baby had, or was being tested for, cystic fibrosis. And we accept that Mr Brown's evidence to the Leveson Inquiry was not as we described it: he told the Inquiry that he had been told by the Fife Health Board it was 'highly likely' that the information about his son's condition originated from an NHS staff member. We are happy to clarify the position and apologise to the Brown family.'

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¶5.28 Although the Inquiry accepts the explanation given in the third witness statement of Pia

Sarma, editorial legal director at the Times Newspapers Limited, dated 3 September 2012 that facts set out in the article in The Times dated 28 June 2012 were themselves obtained from information supplied by The Sunday Post, it is clear that the author of that article had misread Mr Brown's evidence to this Inquiry. Others have suggested that on this occasion The Times demonstrated a lack of objectivity borne out of its desire to protect another NI title: this is certainly a possible inference, but would require more specific evidence to substantiate.

¶5.29 Considering the episode as a whole, the treatment of Mr and Mrs Brown by NI left much to

be desired. It cannot be equated with the treatment experienced by the McCanns, Dowlers or Mr Jefferies, but, as a whole, the experience of the Browns provides a fine example of a number of aspects of unsatisfactory and/or unethical press practices further examined below.100

Hugh Grant and 'the mendacious smear'

¶6.1 Hugh Grant was one of the first witnesses to give evidence before the Inquiry in November

At paragraph 11 of his first witness statement he referred to an article published in the Mail on Sunday on 18 February 2007.101 The article speculated that the cause of the breakdown of Mr Grant's long term relationship with Jemima Khan was a series of late- night phone calls with a 'glamorous young Cambridge-educated film executive from Warner Brothers' with a 'plummy-voice'. The article continued:

¶F 'a source revealed last night...Hugh was always disappearing for meetings and

whenever he was on the phone to this woman, Jemima would hear her plummy laughter. She would always call Hugh on his mobile, but Hugh would tell Jemima the woman was calling to discuss the movie. Then he'd switch his phone off. Jemima has been very upset about it...'

¶6.2 This article was defamatory of Mr Grant, and he successfully brought proceedings for libel

against the publishers. According to his first witness statement,102 the woman in question was an assistant to an executive at a film company associated with Warners. She was middle-aged, happily married, and never had been a girlfriend of Mr Grant. She left voicemail messages on Mr Grant's phone, and these were 'plummy-voiced and sometimes jokey'.

¶6.3 Mr Grant had not suggested in the libel action that Associated Newspapers Ltd (ANL) may

have hacked into his mobile phone. At that stage his only concern was likely to have been his cause of action in the tort of defamation, and, in 2007, the issue of phone hacking had not achieved the level of prominence that it was subsequently to acquire. Paragraph 11 of Mr Grant's first witness statement concluded with this sentence:103

'We know from Paul Dacre's assertions that the Mail papers have never based stories on intercepted phone messages, so the source of the story remains a great mystery'

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¶6.4 Although Mr Grant was of course not directly accusing the Mail papers of hacking into

his phone, that he was lightly hinting at such a possibility was not lost on the Inquiry. It is worthwhile setting out the relevant part of Mr Grant's oral evidence in full:104

''Q. Are you suggesting there that the story must have come from phone hacking? A. Well, what I say in this paragraph is that the Mail on Sunday ran an article in February 2007 saying that my relationship with my then girlfriend, Jemima Khan, was on the rocks because of my persistent late-night flirtatious phonecalls with a plummy- voiced studio executive from Warner Brothers, and it was a bizarre story, completely untrue, that I sued for libel over and won and damages were awarded, a statement was made in open court. But thinking about how they could possibly come up with such a bizarre left-field story, I realised that although there was no plummy-voiced studio executive from Warner Brothers with whom I'd had any kind of relationship, flirtatious or otherwise, there was a great friend of mine in Los Angeles who runs a production company which is associated with Warner Brothers and whose assistant is a charming married middle-aged lady, English, who, as happens in Hollywood, is the person who rings you. The executive never rings you. It's always their assistant: "Hi, we have Jack Bealy(?) on the phone for you." And this is what she used to do. She used to call and she used to leave messages and because she was a nice English girl in LA, sometimes when we spoke, we'd have a chat about English stuff, Marmite or whatever. So she would leave charming, jokey messages saying, "Please call this studio executive back", and she has a voice that could only be described as plummy. So I cannot for the life of me think of any conceivable source for this story in the Mail on Sunday except those voice messages on my mobile telephone. F Q. You haven't alleged that before, have you, in the public domain? A. No, but when I was preparing this statement and going through all my old trials and tribulations with the press, I looked at that one again and thought that is weird, and then the penny dropped. Q. I think the highest it can be put is, frankly, it's a piece of speculation on your part, isn't it, in relation to this? A. Yes, you could – yes, speculation, okay, but I would love to know – I mean, I think Mr Caplan, who represents Associated, was saying earlier today that he'd like to put in a supplementary statement and – you know, referring to the things I say today. Well, I'd love to hear what the Daily Mail's or the Sunday Mail's explanation for that article is, what that source was, if it wasn't phone hacking.''

¶6.5 Taking Mr Grant's evidence as a whole, it is reasonable to conclude that he freely accepted

Counsel's suggestion that he was speculating as to the source of the article, yet was seeking an explanation from ANL as to the circumstances in which the article came to be published in the Mail on Sunday. This conclusion is entirely supported by paragraph 17 of Mr Grant's second supplementary witness statement, where he said this:105

'Nevertheless I accepted entirely that this was of course speculation on my part as only the newspaper has the documents or evidence on which the story was prepared. I never saw any in the legal proceedings.'

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¶6.6 Mr Grant's evidence attracted a lot of media publicity, not least because he had covered a

range of issues and this has been the first day of the evidence sessions of the Inquiry. Paul Dacre, the editor-in-chief of all the ANL titles and the editor of the Daily Mail, heard a report of Mr Grant's evidence on the 16:00hrs radio news. Again, it is worthwhile setting out the whole of the relevant section of his oral evidence to the Inquiry:106

''A. Can I explain the circumstances of that? I was off that day on an outside appointment. Not off; out of the office on an outside appointment, and I was driving back and the 4 o'clock news came on the BBC and the headline was as followed: "Another major newspaper group has been dragged into the phone hacking scandal. Actor Hugh Grant has accused the Mail on Sunday – Associated Newspapers' Mail on Sunday of hacking phones." It was a terrible smear on a company I love. We had to do something about it. I discussed with the Mail on Sunday's editor what our response was. A long convoluted press statement was being prepared. I was deeply aware – and he was deeply aware – that you had to rebut such a damaging, damaging allegation, and we agreed on the form of words: "It was a mendacious smear." Let me explain why I feel it was a mendacious smear. You will have read – you have already interviewed our legal director on this for a considerable amount of time. Our witness statements have made clear that Associated is not involved in phone hacking and we've denied phone hacking in this instance, anyway, specifically.''

¶6.7 The 'form of words' which Mr Dacre was referring to appeared on page 11 of the Daily Mail published on the day after Mr Grant testified, that is to say on 22 November 2011. It read:

¶F 'The Mail on Sunday utterly refutes Hugh Grant's claim that they got any story as

a result of phone hacking. In fact, in the case of the story Mr Grant refers to, the information came from a freelance journalist who had been told by a source who was regularly speaking to Jemima Khan. Mr Grant's allegations are mendacious smears driven by his hatred of the media.'

¶6.8 The Inquiry is only concerned for present purposes with the final sentence of this extract from

the Daily Mail and the reference to 'mendacious smears'. Unsurprisingly, the protagonists to this dispute were concerned to seek to persuade the Inquiry to investigate whether or not Mr Grant had been the victim of voicemail hacking. Dealing with the rebuttal, Mr Grant submitted a witness statement from Ms Khan which emphatically contradicted the suggestion that she had been speaking to a source: she said that the first she knew any "plummy-voiced" woman calling Mr Grant, or anything similar, was when she read it in the Mail on Sunday.107

¶6.9 ANL, on the other hand, placed before the Inquiry material which sought to indicate that Mr

Grant's speculations were both illogical and without evidential basis.108 Although the Inquiry tested Liz Hartley, the head of editorial legal services at ANL, on her supplemental statement and permitted some limited cross examination of Mr Dacre by Mr Sherborne, it is unnecessary for this evidence to be analysed in this Report. For reasons discussed below, I do not accept the propositions advanced by ANL but it is very important also to make it clear that neither do I conclude that the Mail on Sunday or any journalist employed by it knowingly used material

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for this story which had been sourced by phone hacking: equally to be fair, Mr Sherborne on behalf of Mr Grant did not contend that I should.

¶6.10 Given the specific nature of the Inquiry's concern, further questions were asked of Mr Dacre

in order to establish whether he knew exactly what Mr Grant had claimed in evidence before the Mail's rebuttal went out. Mr Dacre said this:109

''LORD JUSTICE LEVESON: But did you ask precisely what Mr Grant had said? A. Yes, of course. I had that because I was in liaison with the office. LORD JUSTICE LEVESON: So you knew that the headline did not reflect what he'd said? A. Yes, but that – the damage was being done and I'm glad to say that once we got our statement out, we had a much, much more balanced reporting of it by the BBC and other media. But if that had been allowed to stand, it would have been devastating for our reputation. MR JAY: I just wonder, Mr Dacre, whether you didn't shoot from the hip a little but too fast on this occasion. A. Not at all. It needed rebutting instantly. This is how modern communications work. It is my view that Mr Grant made that statement on the opening day of the court – Hacked Off, the organisation backed by the Media Standards Trust, attempted to hijack your Inquiry with that highly calculated attempt to wound my company, and I - Q. I'm not altogether clear, Mr Dacre, whether you're saying that Mr Grant perjured himself. That's what "mendacious smears" might suggest. F A. I'm not going to go into that area. I've tried to tell you the context of why we had to rebut this. I mean, let me say as clearly and as slowly as I can: I have never placed a story in the Daily Mail as a result of phone hacking that I knew came from phone hacking. I know of no cases of phone hacking. Having conducted a major internal enquiry, I'm as confident as I can be that there's no phone hacking on the Daily Mail. I don't make that statement lightly, and no editor, the editor of the Guardian or the Independent, could say otherwise. I'm prepared to make this – I will withdraw that statement if Mr Grant withdraws his statements that the Daily Mail and the Mail on Sunday were involved in phone hacking. Q. I'm not sure I'm in a position to broker a deal between you, but can I just ask this, Mr Dacre: why didn't you come back, as it were, in the measured way you're coming to this Inquiry and then just say – A. I've tried to explain – sorry. Q. And then say at the end: "In the circumstances, Mr Grant is incorrect." A. Because then it would have been too late.''

¶6.11 As I have already indicated, I make it clear that I accept Mr Dacre's evidence that he never

placed a story in the Daily Mail (or permitted one to be placed) which he knew came from phone hacking. That said, he did not engage with Counsel's question that the use of the term 'mendacious smears' might amount to an allegation that Mr Grant had committed perjury. The various written submissions of ANL maintained that the adjective 'mendacious' possesses

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¶PART F | The Culture, Practices and Ethics of the Press: the Press and the Public

a number of possible meanings, and argued that the term taken in context and properly understood in law amounts to nothing more than 'honest comment'. In my judgment, however, reading the article in the manner in which I have been invited, the Daily Mail was accusing Mr Grant of lying. Mr Grant would only be lying if, in speculating as he did, he did not believe that his evidence had any foundation.

¶6.12 However, equally in my judgment, in making that accusation the Daily Mail was increasing the

temperature and went too far. The 'plummy-voiced' executive, apart from apparently being young, glamorous and Cambridge educated, was described in the article in the Mail on Sunday in particular by reference to the quality of her voice, as apparently discerned by someone hearing it on Mr Grant's mobile phone. Mr Grant knew that a lady with a voice which could reasonably be described in this way had left voicemail messages. From his own perspective, he also knew that the claim made in the article that he discussed this lady's phone calls with Ms Khan was incorrect (at the time he gave his evidence, he did not have Ms Khan's witness statement which further contradicted one important evidential plank on which the article was founded). He also knew that the lady in question was, with respect to her, middle aged rather than 'young', and he might well have believed that the references to her glamour and being Cambridge educated were poetic licence on the part of the newspaper. It follows, viewing the matter solely from Mr Grant's perspective, that there was some basis for his concern (which in answer to a leading question he accepted was speculation) that an individual had listened to the contents of his voicemails. This person was, of course, not necessarily the 'source' referred to in the article, but could equally easily have been someone who had spoken to the source about the story without identifying how the information became available.

¶F 6.13 Mr Dacre accepted that his principal objective shortly after 16:00hrs on 21 November

2011 was to get out a strongly worded denial which would safeguard the reputation of his newspapers. However, in so doing he acted precipitately, in particular in failing to ascertain exactly what Mr Grant had said when he testified. His explanation that further inquiry along those lines would have meant that the response of the Mail titles would have been 'too late' does not justify the aggressive line which was adopted in defence of its position. A response which defended the Mail's position in regard to phone hacking and stating words to the effect that Mr Grant's speculation was just wrong, while robustly defending the Mail's position, would have achieved the same outcome without the accusation of perjury.

¶6.14 Of course, Mr Dacre was perfectly entitled to decide what he wanted to put in the paper

for which he had ultimate editorial control. He is entitled to challenge my view (as he has in robust and trenchant terms). As far as I am concerned, however, the point of this case study is that it is a good example of the phenomenon of 'aggressive defence' identified above.110