(10.00 am)
LORD JUSTICE LEVESON
Mr Barr, in the light of further reports in the media, I begun wish to make it clear that suggestions or possibilities that I put to witnesses should not be taken as insight into the proposals that I intend to make. I repeat that if change is required, one of the purposes of this Inquiry is to devise a system or series of proposals that balance the legitimate interests of the free press and the right of free speech on the one hand, and the legitimate interests of affected members of the public on the other. It is critical that whatever comes of this Inquiry works for both. One of the ways of doing that is to try out ideas coming from different directions to test reactions. By asking these questions in public, everyone hears them and all can consider what is worth pursuing and of value, and what has unforeseen consequences that will work against the ultimate public interest. It is in that spirit that suggestions put to witnesses must be considered. I am presently minded to use module four to focus on emerging findings. I hope that I do not have to repeat this clarification yet again. In that context, I have taken on board what a number of editors have said about the operation of the criminal law. I made it clear that I considered it highly unlikely that a proposal coming out of an Inquiry into conduct, practice and ethics of the press, set up after serious criticism of the way in which the press, and in particular of the News of the World, had operated, would lead to a suggestion that the law should be amended to decriminalise such conduct. On the other hand, there is legitimate concern that clarity might be needed in relation to investigations which are undeniably in the public interest and which could lead to breaches of the law. I have always appreciated that the code for crown prosecutes requires the public interest to be considered before any prosecution is undertaken, and in the light of the circumstances, I've caused a notice to be issued to the Director of Public Prosecutions under section 21 of the Inquiries Act 2005 asking for evidence about the approach to public interest when the activities of a journalist are being considered, and for detail as to any present policy or guidance. I have also asked for a draft policy, which can be discussed in evidence. Having said that, whatever view I might ultimately form, I make it clear at this stage, before the DPP responds to my notice, that it will never be a matter for me to issue such a policy. The responsibility for deciding whether to issue guidance, and if so in what form, will remain with the director in the light of such consultations that he thinks are appropriate. I anticipate that Mr Starmer will give evidence on this issue before I conclude module one. This will be in addition to any evidence that he might be asked to provide in relation to module two and the chronology of investigations into the activities at News International. Thank you.
MR BARR
Thank you, sir, and good morning. The witnesses we are going to hear from today are Mark Thompson, the Director General of the BBC, Lord Patten, the chairman of the BBC Trust, Mr Jim Gray, who is the editor of Channel 4 News and Mr John Battle, who is head of compliance at ITN. There are a number of witnesses to be taken as read. From the BBC, these include Greg Dyke, Nicholas Eldred, Robert Peston, Nicholas Robinson and Richard Watson. From ITN: Tom Bradby, Maggie Carver, Gary Gibbon, John Hardy and David Mannion. From Sky: Matthew Hibbert. There is also an agreed summary of the BBC's evidence, which is going to be posted onto the website; that's to say, an agreed summary of their documentary evidence.
LORD JUSTICE LEVESON
Thank you. Thank you very much to all those who have put effort into preparing these statements and summaries. They are all of value. If one took each witness in turn, it would inevitably mean that this Inquiry would take a period of time which would be unsatisfactory.
MR BARR
Indeed, sir. Can I now call Mr Thompson?
LORD JUSTICE LEVESON
Certainly. MR MARK JOHN THOMPSON THOMPSON (sworn) Questions by MR BARR
MR BARR
Mr Thompson, could you give the Inquiry your full name, please?
A. My full name is Mark John Thompson Thompson.
Q. Are the contents of your witness statement true and correct to the best of your knowledge and belief?
A. Yes, they are.
Q. You tell us that you are currently the Director General of the BBC and that you took up your appointment on 22 June 2004. I'd like to ask you a little bit more about your professional background, please. Am I right to understand that your career in journalism started at university when you edited the student newspaper, Isis?
A. That's correct.
Q. And that early interest in journalism developed into a career at the BBC which was interrupted only by a two-year stint as chief executive of Channel 4 between 2002 and 2004?
A. That's correct.
Q. And that while at the BBC, you worked on a number of very well-known programmes watchdog, Breakfast Time, Newsnight, the 9 o'clock News, Panorama before moving into more senior management?
A. Correct.
Q. You've been the head of features, the head of factual programmes, the controller of BBC 2, the director of national and regional broadcasting and the director of television?
A. All true.
Q. You tell us that the BBC is a national public service broadcaster established by royal charter, which is supplemented by a framework agreement between the BBC and the Secretary of State. The charter was last renewed in July 2006 and came into force in January 2007. The BBC exists, you tell us, to serve the public interest, and its main object is a promotion of its public purposes. The BBC operates on television, radio, online and via the world service. You tell us that the sovereign body is the BBC Trust, which is responsible for setting overall strategic direction, and for having oversight of the executive board. In your position, you sit at the head of the executive board, don't you?
A. I do.
Q. And that makes you the editor-in-chief for the BBC?
A. That's correct.
Q. You are, in that position, responsible for service delivery and compliance, including compliance with legal and regulatory obligations?
A. Correct.
Q. The editorial chain of management, if I've understood it correctly, for any particular broadcast runs from the producer up to the divisional director and then up to you as editor-in-chief; is that right?
A. Yes.
Q. In terms of ethical compliance, you secure that at a high level through the use of guidelines, which the BBC is required to produce?
A. Yes.
Q. And they set out the over-arching principles editorially; is that right?
A. They do. It's important to say that the guidelines are founded on the BBC's stated editorial values, which are set out in I think it's section 1.2 of the guidelines, and the detailed guidelines are an outworking from those fundamental values. So the foundation of the entire enterprise is based around the values journalistic and editorial values of the BBC which we lay out and which we believe connect to the public purposes and the principles laid out in the charter.
Q. If you view the guidelines in that two-tier way, they themselves are informed by editorial policy guidance?
A. Yes.
Q. Does that guidance serve to put flesh on the over-arching principles set out in the guidance?
A. Yes, it does.
Q. Can I now pause to ask you some specific questions about editorial policy. Can we start first of all with the policy on sources. Are the policies such that the BBC might broadcast a story from a single confidential source?
A. The BBC does many different kinds of journalism, and different principles and practices can apply to different forms of journalism. In news journalism, it is perfectly possible that, for example, a senior member of a political party speaking about their own opinions in an unattributable way, might itself be a legitimate story for our political editor or political correspondent to report, because the fact that they've said those things, given their role, is intrinsically a story. In the context of, let's say, an investigation, where, again, contentious allegations are to be made, it would be our general our universal preference to have multiple sources of evidence, both potential witness evidence and other forms of evidence, documentary or filmed or recorded evidence. We would generally be very reluctant to rely on a single source for that kind of story.
Q. What sort of checks and safeguards would you expect to be in place if the BBC was going to go ahead with such a source?
A. There would be in a circumstance where this was being proposed by a journalist, proposed by a producer or a correspondent, we would expect them to refer the proposal to do this to a more senior editorial figure, and both of those people to seek advice from our editorial policy guidance team we have a team of people who are led by the director of editorial policy and standards of the BBC, who can advise impartially on these matters and if it was proposed further that the source to be relied upon would remain anonymous, it would be certainly considered reasonable that the journalist's editor should ask for and be told the name of this anonymous source, so you have a second and more senior BBC person weighing up the credibility of the proposed source. But to be honest, it would require a very particular circumstance and a high bar for us to be content in almost all circumstances to proceed on the basis of a single, unattributed source, if we were talking about allegations in the context of an investigation.
LORD JUSTICE LEVESON
Not least because of the libel risk?
A. Well, just so, just so. So there's potential a defamation risk. But to be honest, even more fundamentally than that, the core of the BBC's editorial mission is to deliver the most trustworthy and accurate journalism that we possibly can, and irrespective of although clearly defamation risk is a real one, we want a high level of security about the accuracy of our journalism, and for obvious reasons, relying on a single, unattributable source, unless it is the circumstance I described, is potentially very dangerous. One can imagine circumstances where it might be justified, but it would need a great deal of discussion and analysis involving very senior people in the organisation. In the context of news, for example, I would expect the director of news, who reports directly to me, to be involved in those discussions, and I might well be involved myself.
MR BARR
Moving from the question of sources to privacy, it's clear from the documents which have been provided to the Inquiry that there are occasions on which the BBC will infringe a person's privacy, but according to the documents, only where the public interest outweighs the right to privacy. I'm interested in the way in which that judgment is performed at the BBC, because again, the documents provided show that proportionality is an element of the test as applied in BBC procedures. Could you explain to us how that is done in practice?
A. So the underlying principle here is and the guidelines are very clear that we should respect privacy unless there are very strong public interest reasons for not doing so. Now, the exact way in which it might be proposed that privacy will be in some way intruded upon vary in broadcasting, but a characteristic example might be a proposal to secretly film or secretly record something or someone in the course of an investigation. The first thing to say is this would only be contemplated only be contemplated in the context of a clear and serious public interest story. We define "public interest", and the first thing one would have to be clear about is that there was a genuine public interest, and I mean a rather clear and apparent public interest at stake in the story. There would need to be, again, clear prima facie evidence already gathered that there was some wrongdoing or criminality at work, which could be uncovered and which therefore might potentially, in the proportionality test, argue that secret filming, secret recording might be justified. Further, we would have to be satisfied that there was no other journalistic means that could be used alternatively to achieve the same object of recording and therefore proving the anti-social or criminal behaviour, and we would also want to satisfy ourselves about a number of other matters, including the safety of all of those involved, those who might be filmed and those doing the recording. The process this is a so-called mandatory referral it will be referred to very senior people, to senior editors in the editorial chain of command, and also to the controller of editorial policy. We have a policy of logging every request for such secret filming, whether the request is granted or not. We have a policy against all fishing expeditions and against blanket approvals. Each instance of proposed secret filming has to be separately approved, and we have a form in which the case and the various points in the case around the prima facie evidence, around the likelihood of the filming being likely to demonstrate the anti-social behaviour and so forth and then it's on the basis of that, of weighing up the evidence, the seriousness of the public interest and potentially the gravity of the anti-social or criminal behaviour which it's intended to record and all other factors, and it's on the basis of that the decision is made. In complex cases an investigation, for example, where it's proposed that an undercover researcher might be inserted into an environment. For example, a Panorama from last year about alleged abuse at a care home would be an example of this. At the point where the initial approval is considered and a determination made, we might require and in that case did require a complete protocol to be drawn up about the rules of engagement that would be applied and the safeguards that would be in place before the secret filming took place. Now, all of this is about the decision to sanction secret filming or secret recording. We also have a policy of an entire second layer of decision-making if, later on in the production process, it is further proposed that the material that's been gathered or some of the material that's been gathered should actually be broadcast. So we have one exercise at the point where it's suggested that the filming should be considered and should be approved, and we have a second process of then deciding, once the material's been gathered, whether it remains still strongly in the public interest that it should be broadcast. We would say that secret filming, simply carrying it out, is potentially, obviously, an intrusion of privacy and potentially the privacy of a number of different people, not all of whom may be malfactors in this story but obviously there is a second and potentially much greater point of intrusion when said footage or said audio is then broadcast to millions of people.
Q. When making that second evaluation as to whether the public interest merits overriding privacy and publishing, is the size of the potential audience a factor that's taken into account? I'm thinking here that a programme like the 9 o'clock News is broadcast to an audience of many millions of people. Is that part of the proportionality evaluation or not?
A. No, I don't. I do not believe that is certainly should never be and I don't believe in practice that it is a consideration. We take one of the reasons that we log all requests for secret filming not just those which are approved but all of them is so we have a sense across the BBC of how many requests are being made, because we are determined to ensure that secret filming remains a resource of last resort, that it's done under tightly controlled conditions after being very carefully weighed in advance, and that it never becomes something that is used by producers as a production value, in other words as something to make a programme seem more exciting, more attractive, that it must be done as a piece of evidence-gathering. The most important considerations at the point of broadcast are, firstly, in a sense the most obvious one, which is: has the secret recording actually demonstrated the thing that it was said to demonstrate? In other words, as it were, in terms of material evidence, does it pass that test? And then a set of issues, for example, around the identifies of people who are shown in the footage and whether it's appropriate to either blank some faces out or potentially not to show some material because it might, in ways which would be harmful, identify individuals or expose them to humiliation or whatever.
Q. Thank you. Moving to the question of phone hacking
LORD JUSTICE LEVESON
Before we start that, let me just focus on a couple of things you just said. First of all, the effect of your provisions is to provide an audit trail, which anybody, should they question it, can see.
A. Yes.
LORD JUSTICE LEVESON
One of the concerns that have been expressed is that that's very, very bureaucratic. Do you find it such?
A. Well, the intention is to make proposals to secretly film or secretly record very deliberate, that time should be taken and the evidence should be considered, senior colleagues should be involved in the discussion and that we should note it carefully. Now, manifestly that does indeed lead to forms, meetings, discussions, emails, approvals or rejections, and what is perfectly true is that that essentially adds a certain amount of delays in the process. I mean, we wouldn't if one imagines a kind of hot pursuit, these procedures would not be very satisfactory for kind of flipping from overt filming to secret filming on the fly, as it were, but we think that the in this case, the greater importance is around deliberation and care, because we think that even when there are even when the end, as it were, has got a very strong public interest defence in other words, the broad topic that you're doing has a very clear and strong public interest defence that the means that you are proposing to use, if they stray into areas of intrusion or privacy, have to be considered very carefully, and in the end, although I think it's fair the critics may be right to say that it might sometimes be that it would take us some time and take us quite a lot of effort to work out whether or not we should proceed down the route of secret filming. That is justified because of the greater protection it affords us and affords the people who are touched by our journalism against unwarranted intrusions into their privacy.
LORD JUSTICE LEVESON
Have you found that this system has prevented you pursuing stories which you might otherwise have wished to pursue or broadly do you find that, given that it takes a bit of time to make a programme anyway, there hasn't been that sort of problem?
A. I don't believe that we have missed important stories because of these procedures. It's fair so say that in one or two instances the relatively recent Primark case is an example, where we have not had a clear the Primark film involved a piece of film which was brought to the BBC essentially by a third party and which had been already filmed, so it was an existing piece of film rather than something we decided to go
LORD JUSTICE LEVESON
Yes.
A. I mean, at the very least, the problems with that piece of film, and in particular, as it were, establishing the chain of evidence and provenance of that film proved very damaging to that programme and damaging to the BBC, because in the end it was a piece of film which both we and, more importantly, the BBC Trust concluded could not be relied upon. Indeed, the BBC Trust ended up finding that the balance of probability that the film was not authentic. One of the advantages of the methodologies we use, although in some ways pretty onerous, is that they are very, very good as well, and the way we actually do secret filming is very good at protecting the provenance and the chain of evidence for the material that we gather.
LORD JUSTICE LEVESON
There is always a risk that you could be taken for a ride by somebody else, as indeed some newspapers have been, with false material.
A. Correct. Correct. And so hypothetically, if someone were to bring you a piece of film which look interesting, the first question I would hope that my colleagues would ask themselves is: can we if this looks that might form part of a prima facie case to do your own secret filming, but much better if then we could go and proceed to try and capture the same or similar evidence in our own rather structured, deliberate way.
LORD JUSTICE LEVESON
That allows you to say it's not fishing, but doesn't go further. That's one possibility.
A. The point about fishing is the prima facie evidence has to be solid.
LORD JUSTICE LEVESON
Yes. All right. Yes.
MR BARR
Thank you. Moving to the question of hacking, you tell us that in July of last year, when the hacking scandal broke, you decided to commission a review to see whether the BBC's procedures were robust, and also to go further and to investigate whether, amongst other things, there was any evidence of hacking in the BBC.
A. Yes.
Q. Just to get it out of the way, it's right, isn't it, that the review found no evidence that phones had been hacked by BBC staff?
A. That is correct.
Q. Could I ask you at this stage about why it was that you felt it necessary to commission that review? First of all, was there any evidence to suggest that BBC staff might have hacked phones?
A. No, there was no evidence whatsoever. Nor was there even in a sense I had not heard and have not ever heard a rumour or a whisper or a suggestion that they have.
Q. And yet you decide to commission a review to check whether it has happened or not?
A. Yes.
Q. What was the thinking behind that decision?
A. The thinking was we I took the decision to with colleagues, and after discussions with the chairman of the BBC Trust, to do a review because the BBC is the biggest journalistic organisation in this country. Evidence had come to light of this practice being used by other organisations, at least one other organisation or individuals in that other organisation, and it seemed to me that as part of the BBC's overall desire to assure the highest possible standards of its journalism, it's appropriate to ask the question: is there any evidence that that what we are told has been happening at News of the World has ever been done at the BBC? On the face of it, the character of public service broadcasting and the character of the BBC's editorial mission is different in many respects from that of some newspapers. The kinds of stories we do are different. In matters of privacy, our focus, when there is a debate about intrusions of privacy, are, I think without exception, in a journalistic context, around investigations into matters which I think everyone would accept were of public interest. We don't do extensive you know, we don't do any investigations into people's private lives for their own sake. So there are differences between the way the BBC what the BBC tries to do with its journalism and what was being reported about News of the World. But nonetheless, a series of techniques made possible in recent years by the extraordinary explosion in mobile phones and mobile phone technology and voicemail technology meant that we thought it would be prudent I thought it would be prudent to look closely at whether there was any evidence that any of the things which were being alleged to have happened at News of the World had happened at the BBC.
Q. We heard last week from the chief executive of a newspaper group on the same topic, and she had decided not to commission the sort of investigation that you did, saying that it was no way to run a business when there was no evidence of phone hacking. Can I ask you: looking back with hindsight, would you agree with her and conclude that your review was a waste of time and money or would you maintain that your decision to investigate was necessary and appropriate?
A. I would maintain that it was necessary and appropriate. I would draw your attention to the fact that the BBC is not a business, and it might well be that someone running a media business might take a different view from the view that I took as Director General of the BBC. The BBC is a public service broadcaster. It is committed to be the most trusted, trustworthy source of news in the world, and we want to maintain the highest possible standards in all matters, including matters related to privacy. I think given, in a sense, that moment, which arguably we're still in, of well, at the very least, I think it being underdetermined how widespread some of these issues have been in media, I think it was prudent to look at whether the BBC could, in its journalism and journalistic practice, hold its head up and say, "Actually, we don't do these things", and the great advantage of doing a review, a review which both talked to editors, senior departmental heads and journalists, but also involved a fairly significant, essentially forensic examination of many millions of lines of purchase orders and other forms of accounts in the BBC, was that at the end of that, although of course it is impossible to rule out something emerging at some point in the future, I have a very high level of confidence in saying that these things did not happen at the BBC and that the systems that we have in place to try and defend our editorial values and standards, at least in these matters, seem to have worked very well.
LORD JUSTICE LEVESON
Your review went rather wider. It was not only hacking but blagging, payments to police and public officials, payments to mobile phone companies, payments to private investigators, and the entire range of conduct which has been the subject of recent criticism?
A. And if I may say so, sir, that was the intention of the exercise, to try and look at the entire category of allegation and examine thoroughly whether or not there were issues at the BBC against any of those matters.
MR BARR
Yes. You deal with it starting at page 18 of your witness statement, first of all under the subheading "Phone hacking, computer hacking and blagging".
A. Yes.
Q. Then you move on to "Payments to police and public officials", including politicians. Payments to mobile phone companies were investigated and payments to private investigators. You've been able to give the Inquiry the assurance that you just have about phone hacking, and the same assurances about email hacking follow as well. On blagging and I'm looking now at paragraph 54 of your witness statement your investigation included, didn't it, looking at Operation Motorman?
A. Yes.
Q. And the Information Commissioner's reports which followed. There are two references, you tell us, to the BBC in the reports. One, in fact, relates to the BBC being the subject of an investigation, but the other does
A. Yes, I believe that one was appears in the records as "BBC wine blag", so perhaps an effort by a newspaper to try and find out how much wine the BBC's ordering, but nothing has appeared in any newspaper. We think we were a target in that case.
Q. I won't ask you if we can take you to be a sober organisation. I'll move on to the second half of paragraph 54, where it says: "The other appears to be an occasion in 2001 where a BBC journalist making a current affairs programme asked an investigator to check whether a target of the investigation was on an inward flight to Heathrow." You tell us that you consider this request to have had a strong public interest justification. Can you help us at all with a little bit of background as to what that justification was?
A. Yes, I can. I believe this programme, which, by the way, was an investigation which was not concluded and was never broadcast for quite other reasons this was a programme which was looking at whether paedophiles who had been convicted in the UK might nonetheless and were on the appropriate registers on this country, might nonetheless be able to and indeed were getting jobs where they would have access to or contact with children in other countries, a topic which I regard as having a strong public interest justification. I understand that the programme was trying to track one particular known paedophile and it looks as though it certainly looks like a request was made to the private investigator involved in Operation Motorman this is Mr Whittamore, I think to find out whether this individual was on a particular flight and that was part of the investigation. Now, I think that this is 2001, and I wasn't personally involved in the decision-making. It's quite hard to completely recreate the circumstances in which the decision
Q. Okay, you've told us enough for us to understand.
A. But in my view, both the not just the programme as a whole but the request to try and find out whether this particular paedophile was on the aircraft, I would regard as being justified in the public interest.
Q. Thank you. You move on to tell us about police and the public officials and you say that the review indicated that the BBC had not made any improper payments to police officers. The qualification "improper" I'd like to explore. What would you consider to be a proper payment to a police officer by the BBC?
A. I think occasionally, for example, when police officers appear on Crimewatch in other words, they become on-air contributors sometimes a small payment is made. But we're talking about a very small payment in respect of the kinds of broadcasting activities for which people in other walks of life would get exactly the same level of payment. It's quite rare, but in no sense are when the BBC is considering payments for contributors, are police officers put in some special category or paid more or paid less.
Q. You would agree with me that to obtain confidential information from a police officer by payment would be wrong?
A. Yes.
Q. And improper?
A. Yes, I do.
Q. So far as politicians, you say that there are guidelines which set out the circumstances in which MPs can be paid and that the position is that normally they should be only paid a limited and realistic disturbance fee and/or any reimbursement for expenses. Again, there's a qualification, the use of the word "normally". In what circumstances would the BBC go beyond that?
A. Both with politicians and indeed police officers I mean, the business of turning up to be interviewed, for example, on news and current affairs programmes, which is the overwhelming majority of occasions where politicians would appear on the BBC, that's what's meant by "normally". I understand that occasionally, when a politician or indeed, again, anyone else appears on an entertainment programme on the BBC or a comedy programme on the BBC, they might receive a fee. But crucially, again, in no sense are either politicians or policemen marked out and treated differently because of their professions. This would be, as it were, the standard practice with different kinds of programme at the BBC, and across journalism, the most they would be expected to be paid would be a very small disturbance fee if there had been some disturbance.
Q. Thank you. Moving to private investigators, the BBC does use private investigators and you tell us that it's often to find the whereabouts of people in order to send them a right-of-reply letter
A. If I may just perhaps I think it's worth just stating before I answer by far the most common use of private investigators is actually to provide security and surveillance services as whole for the BBC, often protecting journalists when they're at work. So the great bulk of the use of private investigators and you will see that for an organisation of the BBC's size, we don't use private investigators very much, actually. When they are used, it is generally for surveillance and security. Sometimes it's used for things like serving right of reply letters.
Q. Against that important piece of context, the use of private investigators to find people for a right of reply, is it a big problem for the BBC, tracking down people in order to enable them to exercise a right of reply?
A. It can be. Particularly in the context of consumer programmes, for example. Imagine a consumer programme which has been investigating this might be quite a small feature some relatively small business or a businessman who is alleged to be defrauding or, in some other way, disadvantaging his or her customers, and for whom we have multiple address, multiple business addresses, possibly multiple personal addresses, and where it would be very, very time-consuming for the journalist themselves to try and actually track down the person who is behind these companies across all these different addresses, and in this context, using a private investigator or a firm of private investigators simply to try to find out where's the best place to deliver the right-of-reply letter is something which is sometimes given to them to do. This is typically rather undramatic, though. It's literally trying to go through a number of records and try and work out where is the place where you're most likely to actually get the letter to the person so they have a proper chance to reply to the allegations we're making.
Q. The Inquiry has already heard some evidence about investigative journalists on consumer affairs investigations and the difficulties that might be faced in tracking down those who don't want to be tracked down and exposed, and the difficulties which particularly arise when the target is overseas or using overseas PO Boxes and so on and so forth. Can I ask: what does the BBC do if it simply cannot find the subject of such an investigation? Does it publish or not?
A. The I mean, it depends it depends, obviously, on the character of the allegation, its weight but also its character. If there was a story which we felt was very strongly in the public interest, that the public should know about it, and we had made extensive efforts to try and find the person against whom the allegations were being made and had failed, it is possible, I think, that in those circumstances we would ultimately broadcast, although I would hope that we would broadcast the fact that we had, as yet, been unable to put the allegations to the person and would wish to do so in the future, so if, at some point in the future, the person wanted to come forward, we would still afford them their right of reply to the allegations. But our practice is, wherever we can, to give people a good deal of time to respond to allegations. For a serious investigation, a Panorama, five days would not be untypical, and with complex financial investigations, we might well afford someone ten days to respond to allegations, and although that long period where we we give people to think about and to respond to allegations to some extent can itself compromise our ability to broadcast, we think it's more important that people do get the chance to respond to allegations which are made to them and they get the chance to respond not just immediately, but also having given some thought to the matter.
Q. Before you give up on trying to trace somebody and decide if the public interest is strong enough to broadcast anyway, how hard do you try? How would you describe the threshold that you apply?
A. We take the issue of affording people a chance to reply to allegations very seriously indeed, and that is true even of quite quite short consumer features as well as very large-scale Panoramas about important public figures. One of the reasons that sometimes teams of private investigators are brought in to do this is precisely so that enough effort can be put into that whilst the journalists are carrying on with the primary journalism, the point being that it's very, very unusual for the BBC to use primary investigators for primary journalistic investigation. They're much more likely to be used in support, through security or surveillance, or in this case, through the attempt to find people so that we can deliver right of reply
LORD JUSTICE LEVESON
I understand security. I understand the example you've just given. Just explain, if you could, in what sort of circumstance you might use them for surveillance?
A. Perhaps I can give you an example of a programme which was looking at bail hostels and whether or not offenders were able to re-offend despite the fact that they were meant to be in a bail hostel. This to some extent meant again, the prima facie evidence we had been brought is that they were and they could be seen doing so. In practice, this meant the team working undercover and quite a few individuals being followed, essentially, to see whether or not, when they left the bail hostel what they were up to.
LORD JUSTICE LEVESON
I see.
MR BARR
Taking a short diversion on the question of right of reply and prior notice, in cases where you have decided to intrude on somebody's privacy because the public interest, you think, justifies it, is the subject given the right of reply before publication?
A. Yes. I'm going to make a possibly slightly circular argument. We would only we would only be proposing to broadcast something in such circumstances if we believed that the secret recording, secret filming involved showed something which, in a sense, demanded a reply. In other words, the material in question would contain an allegation to which the individual should respond. So, yes, the answer is in all circumstances where I'm talking principally about secret filming, but I think it would apply to other forms of intrusion of privacy as well we would expect, were the thing to be broadcast, that we would be broadcasting because it was saying something about the person which did require a response. I mentioned a Panorama about abuse in a care home. What essentially the programme ended up with was a series of sequences of film showing pretty serious grave abuse of individuals, and these allegations were indeed put to the company which owned the care home, and indeed shared with the authorities and so forth.
Q. My last question on this little diversion before we return to private investigators more generally: has the BBC had issues with privacy injunctions? It's obviously been a very big issue for the press in recent years.
A. I believe I mean, I think this has only occurred at the BBC in the context of Family Court and child protection issues. I believe that only one there's one incident of an interdict being sought and granted in the Scottish courts, which the BBC did not challenge, in relation to a vulnerable teenager. And in toto, the numbers of privacy complaints which the BBC receives I think has been very low indeed, running at perhaps two or three complaints across the entire output of the BBC per year, with only a very small minority then leading to the BBC making a settlement. To be honest, I think where things have gone wrong in and it's been very rare. It's been, as it were, genuine mistakes, as it were, rather than wilful intrusion of any kind. This is I mean, it's worth perhaps restating simply that the BBC simply doesn't do many of the kinds of story which have proven problematic elsewhere in the media.
Q. Returning, as I promised to do, back to private investigators, at paragraph 59 of your witness statement you tell us that the review shows that private investigators have occasionally been used in the context of investigative journalism to seek to identify the target of an investigation or personal details about them. You give an example. On one occasion, a private investigator was used to discover the details of the owner of a vehicle from a number plate, and then you go on to assert that that was in the public interest. My first question about that is: would you accept that in order to ascertain the details of the owner of a vehicle from a number plate, one has to involve in prima facie illegal conduct because it requires getting confidential information from the DVLA?
A. At the time this programme was some years ago, and I believe at the time the investigation took place, there were many organisations which had access to the DVLA, indeed including many private investigation companies had direct access to the DVLA database and there were many different ways in which this information could be obtained. Perhaps it's also worth saying that, going back to my, as it were, two-stage editorial decision-making again, I wasn't involved myself in the decision-making related to this programme, but there will be a set of considerations initially amongst the programme makers about whether it would be appropriate to try and find out the owner of a car with the relevant registration number. There will be a second, and in this case I think a much more serious matter, if you were deciding to broadcast either the number plate or the name of the individual involved, and that second stage never took place. This circumstance was of a BBC journalist who was following someone who he had good reason to believe was a conspirator in a serious criminal conspiracy, was pursuing the person in by car, lost the trail of the car in front but made a note of the number plate, and was trying to confirm whether the person he'd seen in the car was the conspirator he was tracking. I understand that the it became clear that it was in fact a company car which had nothing to do with the conspirator, and the car and its occupant no further action was taken and nothing was broadcast. Now, I think it is the case that there are many different ways in which the private investigator who was asked to find the name that went with the number plate would have obtained the information. The issue of whether in the end, the public interest in broadcasting such information versus the intrusion of privacy didn't arise and I'm satisfied that the journalist involved, from everything I know, genuinely believed, and with good reason, that he was following someone who was involved in a serious criminal conspiracy.
Q. Was there, as far as you're aware, prima facie evidence to found that belief?
A. Yes. So in other words, it is hard, in retrospect, to be certain, but it seems to me that it's an example where the technique used was justified in the context of the public interest journalism that was involved.
Q. We started this excursion through the review which you commissioned by talking about hacking. Looking through your procedures, we've not been able to find and it's been confirmed, I think, that there is no specific prohibition in the BBC's procedures on phone hacking or the interception of communications; is that right?
A. It is correct. Our view would be that any proposal to do such a thing would clearly, clearly take you into all of the areas which are covered. In other words, I mean, there are extensive guidelines on privacy and any proposal to intrude into privacy. So I believe that the guidelines and the values of the BBC are clearly against it but it's true that because it has not come up in the BBC, historically it was not thought necessary to put a specific prohibition into the guidelines. One of the things I would expect us to do, however, is to look quite closely at the proceedings of this Inquiry and the broader unfolding story about the response to phone hacking, and I think it's certainly possible that, as it were, for the avoidance of doubt, we would judge that in the next edition of the guidelines we should simply say, "None of these things are allowed." I think if you read the guidelines it's quite clear that they're not allowed, but I can certainly see that given what's happened elsewhere that laying it on very, very clearly and saying explicitly that phone hacking and computer hacking are not allowed would be a good idea.
Q. Can I move on to questions of accuracy. It's abundantly plain from your witness statement that the BBC places a very high importance on the question of accuracy, and indeed, as I understand it, places accuracy above speed in its journalistic principles?
A. Yes.
Q. That must pose particular challenges, must it not, in new media, particularly with real-time tweeting and with blogs. Can you help us with how the BBC tries to live up to its very high expectations of truth and accuracy in the new media world?
A. So the first principle is that the public have every right to expect that the standard of accuracy and probity and the other values should be exactly the same in the context of digital media as they are in conventional television and radio broadcasting, and we shouldn't allow the immediacy of the medium to make our editorial decision-making too summary or abbreviated. In practice if I give you will a couple of examples. We users of our website will know that some of our most notable journalists will frequently post what are sometimes called blogs but they're really short reports or short statements on our website. Robert Peston, Nick Robinson, Stephanie Flanders, John Simpson, would all be people who do this from time to time. It's worth saying these are all statements by important BBC journalists appearing under the BBC banner, and they are considered and approved by a senior editor or colleague before they go up on the site. So in other words, we apply the same kind of scrutiny that we would to the, let us say, three or four-minute report that the same correspondent or editor will be providing for the 6 o'clock news on the radio or the 10 o'clock news on the television. That really is the that gives you a sense of what we're trying to do, which is to try and make sure that accuracy on the website is to the same standard as it would be on television and radio. Indeed, it's worth saying that one of the issues for the BBC, and for every news organisation, about the web is that once you put something on the web, it's there forever. Broadcasting is there and at the end of the bulletin for most people it's gone, but people can go back and example the accuracy and impartiality of news stories that were posted by the BBC many years ago, so in some ways because the web has something of the quality of being a permanent record, it's no less demanding in terms of accuracy than television or radio. In some ways, more so.
Q. Can I pick up two things from that answer. First of all, are you finding that those checking systems on your new media broadcasts are proving workable in practice?
A. Yes. I think we are, though I think it's fair to say that we are still the web is in a sufficiently early stage in its development that I think we are still potentially grappling with some new issues. I'll give you one simple example. We would expect, if we use a piece of video or a still photograph which has been provided by a member of the public in our jargon, user-generated content, UGC although it is possible to for either a website or for a radio or television broadcaster to present it in context and to explain it is what it is, it's something we've received, whose provenance we can't guarantee at the same level. You still have to be extraordinarily careful about the use of such material, and yet sometimes such material can be, for a period of time, the only way of covering a certain story. I think of events in some Middle Eastern countries, both now and in the recent past, where sometimes such material if it's a scenario where BBC and other international journalists can't get into the country, such material might be very important in getting some sense of what's going on in the country, and yet, because your journalists weren't on the ground themselves making sure that you are very, very careful about attribution and about the limitation you place and share with the public about how far the material can be relied upon. That's still, I would say, something which we and other broadcasters and newspapers are still working through.
Q. On the duration of how long material should stay on the web once posted on your website, I'd like to explore with you where you see the balance between leaving intrusive material online and the utility of a historic record of what has been published. Does the BBC have any policy on the duration for which material remains on its website?
A. The essential point is that if we believe that something is appropriate to broadcast because the public benefit of broadcasting outweighs any other consideration in a proportionality test, broadly my view would be that that should that that same judgment should, as it were my presumption would be that that should be true indefinitely. I mean, we know that people record TV and radio programmes and keep them themselves, so it may well be that even if something is broadcast on television, there will be a permanent record made of it, and so my broad presumption would be that the material that we broadcast or put on the web should be available indefinitely. Now, there might be particular circumstances in relation to individuals where one might want to take a different view, but it's worth saying that we do not, as a rule, broadcast, in my view, material which is unwarranted in its intrusion into the private lives of individuals. We don't broadcast that material, and so the circumstances in which one is asked to or might want to consider amending a website or taking something down from a website, as it were, for personal privacy reasons are vanishingly small. I can't recall an example of that.
Q. I'm going to move now to what I'll call broadly compliance, the systems in place to ensure that the standards you've told us about are in fact maintained. You tell us that there is an editorial standards board which reports to the executive, and its job is to monitor and review compliance systems, and also to act to key themes arising from complaints. In addition to that, you say that there are contractual safeguards which are written into contracts with third-party suppliers of content, and you also tell us about training through the BBC Academy, and a further layer of assurance in the Safeguarding Trust. We'll come to the genesis of that trust in a moment, but my present question is: could you explain to us a little bit about how that works?
A. Certainly. If I can to put it in its context, we have a chain of command which makes editorial decisions and where the monitoring of standards, the discussion of problems, the mistakes that we've made and possible suggestions about changes to the guidelines takes place in that vertical stack. Indeed, at the top of it is the executive board of the BBC. There's the BBC Trust with its oversight role as well but on the executive side, the executive board will take, once a quarter, an overall compliance report, which will include editorial compliance and notification of any significant editorial lapses. Below that, in the most senior management board, again, we will look regularly at a list of the most sensitive or editorially difficult programmes that are under production, to consider those. We also, as you say, have the editorial standards boards. So we have that vertical system, as it were, as a chain of command. We have a parallel advisory system, which is the director of editorial policy and standards, David Jordan, and alongside them, programme legal advice, who are there, at one remove directly from programme-making, to advise editorial decision-makers from myself down to the most junior researchers and to help them reach the right decisions. We have, as you say, through the BBC Academy, extensive training and indeed mandatory training for any journalist who first arrives at the BBC and so forth, and we also make, contractually, everyone in the BBC regularly sign up to their responsibility to live up to the editorial guidelines. But Safeguarding Trust was in addition to those formal structures arising at a level discussed out of some particular editorial lapses at the BBC, Safeguarding Trust was an attempt to, in a sense, spark a conversation about values and about behaviours which went beyond the formal guidelines and which involved seminars which essentially every programme maker in the BBC had to attend I attended one like everyone else in which a series of quite interesting editorial dilemmas were there to be discussed and debated, and the attempt was to try, as we do with, in particular, our College of Journalism learning, not simply to set up a set of rules but rather to try and encourage people to discuss and debate the kinds of editorial play-off, absolutely the play-off between issues of intrusion and versus, in a sense, the public's right to know about certain things or issues about how far artifice in programming in factual programming can go, so that, in a sense, you're trying, at a cultural level, to make sure that people are alive not just to the rules we already know about but to the kind of dilemmas which may arise and which you would hope they would then use their good judgment to solve.
LORD JUSTICE LEVESON
The word that you've used there is the key, isn't it? It's the culture.
A. Yes.
LORD JUSTICE LEVESON
Are you simply trying to decide what your culture is or to shift it in a way that you believe is the right way for it to go? Because changing culture, as I've listened to the events of the last few months, seems to me an extremely difficult problem.
A. Yes. I don't think the BBC needs to change its journalistic culture, which I think over decades the core of the culture is incredibly strong, and it's very open and dispitatious in a good way. In other words, most of these topics get argued about a lot and the most junior members of staff will come up to me and argue about decisions I've taken or it's a very open, lively culture. There are issues there are absolutely issues, though, about an environment where, unlike the BBC 50 years ago, there's a significant amount of production which is made by third parties, by independent producers and others. It's a culture where there's a higher use of freelancers across the industry than there used to be and you cannot, without taking slightly more deliberate steps, ensure that everyone, as it were, automatically knows what our culture is. So it's more about trying to reinforce a really strong culture than it is about trying to change the culture. In other words, I think the probity, the integrity and the conviction of our journalists is I think is not to be questioned. It's trying to maintain that, and in particular to accept also that, in a sense, new technologies and new ways of making programmes presents us with new problems.
LORD JUSTICE LEVESON
Yes. I wasn't
A. Phone hacking is a relatively recent possibility in the
LORD JUSTICE LEVESON
I wasn't suggesting that there was some great problem which you felt suddenly you had to address, but, really, tilting to deal with new problems is exactly what I had in mind.
A. Yes.
LORD JUSTICE LEVESON
As the world evolves.
A. Yes.
LORD JUSTICE LEVESON
And technology evolves and the way of news-gathering evolves and the way in which you gather your information, as you've just said, that's precisely what I'm actually asking about. Yes.
MR BARR
The Safeguarding Trust initiative, has it in practice proved useful, do you think?
A. I believe so. It's complicated because in a journalistic culture, the levels of scepticism are normally fantastically high and the benefit of any proposed new compulsory seminar is chewed over energetically by all concerned. And suggesting such a thing, by the way, is not always the way of winning a popularity contest. I believe
LORD JUSTICE LEVESON
Grandmothers and eggs.
A. And of course, the challenge an organisation like the BBC faces is we are trying to deliver an incredibly consistent, high level of accuracy, impartiality and fairness. I mean, 99.999 per cent, which means that you are trying to get behaviours across the entire organisation to a certain level, and there is a danger that you worry about half a per cent, one per cent, a tenth of one per cent of behaviours at one end of the organisation, and indeed, there are a lot of journalists in the organisation who could teach me a thing or two about journalistic standards. In other words, there is a danger you patronise your rock solid core by raising questions which are real questions, maybe, for some of the people at the edges of behaviour. That's quite hard. Trying to get that balance right is hard.
LORD JUSTICE LEVESON
The trouble is, if you get it wrong, then you're going to get it wrong in a very, very public way, and you don't need me to identify the examples where at least there's been a perception that you've got things wrong.
A. That's exactly my point, that we're trying to get an error rate in editorial decision-making which is vanishingly small, because a single lapse, which might be, frankly, not even noticed or certainly passed over quickly by another organisation, will be a very big issue for the BBC. Though I have to say, in my view, that's the flipside of the extraordinary levels of trust and support the public place in the BBC. So we have a lot to live up to and that is why we would rather err on the side of slightly too much in the way of training and debate about editorial standards than slightly too little.
MR BARR
The final limb of your compliance system that I'd like to explore is the complaints system.
A. Yes.
Q. I'm going to attempt something which is not entirely easy, which it is a simple exposition of your complaints system.
A. I hope to be able to help you, but go ahead.
Q. Am I right that your complaints framework is set by the BBC Trust?
A. Correct.
Q. Complaints in the first instance are dealt with by the BBC?
A. Yes.
Q. Save, if it's fairness or privacy, where there is an option to go to Ofcom?
A. Correct.
Q. The BBC Trust provides an appellate role from decisions of the BBC?
A. Yes.
Q. And there are some matters at appellate level which can be dealt with either by the Trust or by Ofcom?
A. Yes.
Q. And there is an agreement between the BBC Trust and Ofcom about the operation of the system whereby they try and stay out of each other's way? Does that
A. It all sounds horribly familiar, yes.
Q. succinctly set out the position?
A. Yes.
Q. And there is a complaints monitoring board which keeps an eye on the complaints and the complaints system?
A. Yes.
Q. The present system has been the subject of some criticism for being overly complicated and too slow, hasn't it? That criticism has come from, amongst other places, the House of Lords. It may be more a question for Lord Patten in due course, but is it the intention of the BBC to simplify the complaints procedure?
A. Yes. Yes, it is. I think Lord Patten will, I'm sure, be able to talk about that. Just a couple of points from me. Firstly, the overwhelming majority of complaints that the BBC receives are dealt with very swiftly at the first instance. The BBC receives well over a million contacts from the public every year, of which only a relatively small proportion are complaints, but that still adds up to something like 240,000 complaints a year, of which the overwhelming majority are responded to very quickly. We have a target of responding in ten days. I think we're currently at 93, 94 per cent of that target, and in, again, the overwhelming majority of cases, the complaint is satisfactorily dealt with at that stage. Where I think people then feel that we that the system currently can be slow there is two further stages. If, at the first instance, the complainant is not happy, we then have on the management side something called the editorial complaints unit, which can investigate and reach a finding on whether the complaint is justified or not. That deals with the complaints which have not been satisfactorily, to the satisfaction of the complainant, dealt with in the first stage. If, after that stage, a complainant is still not happy, they can proceed either to the BBC Trust or, in the case of certain kinds of editorial issue, on to Ofcom, but by this point, I think with the Trust we're talking about just over 100 complaints going to the Trust out of a pile which began with 240,000, of which I think the Trust hears about 40, in a recent year, of which, perhaps, six or seven are complaints which are upheld at appeal. So, in a sense, part of the issue with the complaint process is it's dealing with a very, very large number of complaints, but also seeking to give very careful consideration in successive stages, including an appellate stage, to the complaints where, in a sense, the complainant believes they're the most serious and the ones which are most complex and difficult to resolve.
Q. How successful is your complaints system at keeping the BBC out of court?
A. The answer is that the BBC is is I think, given the scale of its operations and in particular the hundreds of thousands of hours of broadcasted journalism, factual material, is not in court very much, but it's worth saying that not every complaint in fact, the overwhelming majority of complaints are not of the kind that's likely to lead to court anyway. "You moved my favourite programme because the tennis overran" is a complaint, and it's a serious complaint from someone who's been disappointed because in another act of proportionality, some scheduler has decided that sticking with the Murray match was more important than showing programme X, which could be shown on BBC 2. So a very, very large number of complaints to the BBC are not of a kind which could be litigated later in a defamation proceeding or something like that. Those kinds of complaints, serious complaints about lack of accuracy, lack of impartiality, lack of fairness and so forth, are a tiny minority of the whole.
Q. Can you give me some idea and I'm not trying to put you on the spot for a precise statistic, but how many broadly successful defamation actions are there against the BBC?
A. Well, if we work backwards, I don't believe that we've lost a defamation action in court for a decade, but there are some defamation actions which we have chosen to settle over the years. That's certainly the case.
Q. What sort of frequency?
A. Well, we're talking about probably middle single figure actions being begun each year, not all of which would reach a conclusion.
Q. Probable.
A. Four, five, six a year, sort of thing.
Q. Moving now to some of the problems that there have been, you've described very extensive systems but as we all know, that has not prevented some difficulties emerging. Perhaps the most high profile in recent years was the fallout from the Hutton report and the Neil report which the BBC commissioned in response to it. That was a problem which essentially emerged from the treatment of sources and checking, wasn't it?
A. Yes.
Q. What did the BBC do about that?
A. Well, we the Neil report was very wide-ranging and led to many changes in the organisation, certainly more explicit guidelines on the validating of information from sources and the strong desirability of multiply sourcing stories which involve serious allegations, paragraphs in the guidelines which broaden the requirement to consider the public interest and make the consideration of the public interest more explicit, as well as an understanding of the need for precise to use your language prior notification or right of reply when serious allegations are going to be made. But more broadly, the Neil report also led to the foundation of the College of Journalism, to improve and broaden journalistic training, including training about journalistic standards and ethics inside the BBC, and in some ways that Neil report is the foundation of a greatly strengthened approach to not just compliance but to the maintenance of high journalistic standards, and rather as I referred to in the context of Safeguarding Trust, also an explicit desire on the BBC's part to use journalistic best practice and our most outstanding practitioners to engage all of their colleagues in the debate. If you go on the College of Journalism website, much of which is available to the public, you'll see that the character of it is to share dilemmas and to debate and discuss ethical issues in the context of real examples of stories and so forth. So in many ways, out of the Neil report and therefore in the aftermath of Hutton, a fundamental kind of reenergising of the approach we took to training, and finally there were significant changes and improvements made to the complaints process as a result of what had happened as well.
Q. Despite all of those changes following 2004, very serious ethical problems emerged in 2007, didn't they?
A. Yes. It must be said I mean, this is not by way of exculpation, because they were extremely serious, but they were an entirely different part of the operations and involved people who were not, as it were, part of that core BBC journalism machine. So if you like, if the work post-2004 was to try and ensure that the training, compliance, guidelines, structure and the editorial chain of command was really strong in news after what had happened, our next issues were about a series of examples when principally competitions competitions and public voting, various kinds of interaction with the public on various programmes had been done in ways which were not acceptable by way of fairness and transparency with the public. These were not examples where there had been any individual pecuniary gained by the individuals involved, and there was no suggestion of corruption in the instance of the BBC that's not necessarily true of other broadcasters but we certainly let the public down by simply not running some of the competitions that we were running with the public in a fair and transparent way.
Q. Deceiving them, to be blunt?
A. The effect of some of this was to deceive them.
Q. What did you do about that?
A. Well, I mean, in a sense, if problem one was happened in the heart of journalism and news and current affairs, problem two took place in entertainment. We also simultaneously, or nearly simultaneously, had a problem with a promotional video of a documentary made by an independent producer about the Queen, which was in this not as broadcast but in this promotional video was had been cut in a misleading way. These two incidents together made us think that especially in those parts of the BBC which were beyond the news and current affairs core, although there were some it was entirely appropriate that people in news and current affairs should be involved as well, we did need to have a you know, to sit down and have a proper conversation about our values, our standards, and start talking about where boundaries in various kinds of programming existed. That's what Safeguarding Trust was designed to do. But in particular, in relation to competitions. Again, we significantly strengthened the editorial management and control of competitions and we set up a special unit in the BBC with the specific job of guiding and advising programme makers and, where necessary, providing the technical expertise to facilitate competitions and votes so that we could be certain that every single competition and vote would go through that system, would be properly controlled again, we would know what was going on so we could stop any recurrence of the problems we discovered with those competitions. I think it's fair to say that since we put those controls in place, as yet, we've not had any recurrence of those problems.
Q. You spoke publicly and frankly about those difficulties on television. How important did you think it was for you, as Director General, to make that public statement?
A. I think it's fundamental to my duty in this role. I think my job is to to not just to sit on top of a management machine and try and optimise it for editorial compliance that's, you know, in a sense, part of what one has to do to try and get the right result but also to take responsibility for what the BBC broadcast and also to take personal responsibility for occasions when we have fallen short of our high standards. I believe that as quickly as possible when you're clear that you or someone who's been working with you has made a mistake, as quickly as possible you should tell the public directly that you recognise that the BBC has made mistakes and that we are sorry for letting them down and that we will do everything in our power to make sure that that kind of mistake doesn't happen again, and that was absolutely the spirit of the way we responded both to the competitions and to the Queen documentary.
Q. Sadly that wasn't the end of difficulties of an ethical kind, because the next year, 2008, there was a problem with Messrs Brand and Ross behaving in an unacceptable manner. Had they undergone the Safeguarding Trust training or not?
A. To be honest, I don't know the answer to that question but we can certainly find out and write to you with the answer to it.
Q. Thank you.
A. But the Brand/Ross incident again certainly a very serious lapse of editorial judgment but essentially of a different character. This is there have been, for decades, lively debates about the boundaries of comedy and taste in cutting-edge comedy, about how far can you go, and certainly that was a programme which went, in my view, far, far, far beyond the line it wasn't close to the line; it was far beyond the line and it exposed two issues which we've talked about extensively in public: firstly, simply, a serious lapse of judgment not just by the people directly involved in the programme but by some very senior decision-makers in the BBC, and secondly, a weakness in the way in which programme compliance was taking place, certainly in that part of the BBC. In other words, that we were going through a process which appeared to give us comfort around the compliance of the programme, but manifestly, given that this programme had got through that system and still got onto the air, those systems were insufficiently secure, and so we needed specifically to tighten up the way in which we ensured that programmes "compliance" is a rather grand word. It meant that somebody senior and responsible would listen to or watch a programme and judge that it lived within the reasonable expectations of the public around taste and decency before it was transmitted.
MR BARR
Thank you. Sir, would now be a convenient moment for a short break?
LORD JUSTICE LEVESON
Certainly. We will have just a few minutes to allow the shorthand writer to recover. Thank you, seven minutes. (11.32 am) (A short break) (11.42 am)
MR BARR
Mr Thompson, before I move to the next topic, was there anything else you wanted to say about your response to the problems in 2008?
A. I talked about the principal response, which was to look hard at the way in which compliance took place and the need to make some changes in editorial leadership. We also introduced some measures to deal with conflict of interest. Where an independent producer was owned by a prominent star and some sense of in this case, the producer had been seconded from the BBC into the independent producer the producer who made this programme had gone to work for this indie which was controlled by one of the artists and we wondered whether that conflict should be addressed and it has been. We also added a new guideline about intimidation and humiliation to the guidelines. So there were a number of ways which, again, we tried to respond to what had happened to make sure that that kind of incident wouldn't happen again.
Q. Thank you. My next topic is about your relationship with the print media in general, in particular the tabloids. It's right, isn't it, that the BBC sometimes will pick up and follow a scoop which has been broken by the tabloid media?
A. Yes.
Q. And they, for various reasons, not least that they're not fettered by a duty to be impartial, have more editorial freedom than you do?
A. Yes, that's true, but what I want to say is that the judgment of whether or not we should pursue a story and the extent to which I'm using the term slightly more broadly now it is in the public interest and in line with the BBC's own editorial priorities that we should pursue the story, has to be judged on its own merits. The fact that something has been put into the public domain does not in and of itself mean that the BBC should pursue the story. If I can give you an example. If you watch the way we review the papers or listen to it on the Today programme or on breakfast, you will note, when we can, that we try quite hard not to feature in detail personal allegations which are made on the front pages or inside newspapers if there is no wider public interest argument for doing so. So in other words, there are plenty of stories which appear in print which we do not pursue. There are, however and it's manifestly an area for quite difficult and fine judgments there are occasions where the tabloid newspapers will deliver scoops which are manifestly very much in the public interest and should be pursued and represent outstanding journalism. There are also some difficult cases where a story which has perhaps begun or feels as if it's begun as an essentially a story about private individuals, be they celebrities or not, acquires a status as part of a broader public or national debate, and where our judgment will be it would be wrong not to report on that wider story.
Q. Do you think that the decision to put accuracy over speed, which the BBC has adopted, could be successfully adopted by the print media or is that simply unrealistic?
A. I'm not sure, to be honest, it quite reflects the challenges that the print media face now. To be honest, on speed, print is, just because of its character, frequently being beaten by the Internet, by you mentioned tweets, and by 24-hour continuous news on television and radio. I think that the so, in other words, the I'm not sure that and particularly the kinds of stories which involve intrusions into privacy and those kinds of investigation are not normally time critical, and what I think, whether they're a broadcaster or a newspaper which is developing, I think they're more interested in exclusivity and having ownership of the story and being seen to have had the story first, not because they've been in a race but because they've investigated it exclusively and they are able to reveal that story as theirs. So I don't think speed of itself, in the kinds of journalistic practices we're talking about, is quite the issue that you say it is, but certainly for the BBC, we would rather be right than first, if we have I mean, frankly, where we can, we'd like to be right and first, but if we have to choose, we'd rather be right than first.
Q. You've described some very extensive systems to us this morning but it is also right to accept the BBC is a very large organisation, isn't it?
A. It's a gigantic organisation and also an organisation where systematic quantitative and qualitative research with the British public suggests that the public have got uniquely high expectations of the BBC. In other words, that the standard to which the BBC is held by the public is higher than for any other medium. It's unreasonable, I think, to suggest that every single other media outlet in the UK can or practically could operate in the same way the BBC does.
Q. You've anticipated my next question with that. Moving on then to your relations, first of all with the police. Do you have professional conduct with people at commissioner or chief constable level?
A. I occasionally see senior police officers but it is occasional. I might have, in my course of time as Director General, had lunch once, possibly twice, with the Metropolitan Police Commissioner. I sometimes bump into other senior police officers when I go and visit one of our regional headquarters and meet some of our local stakeholders and partners, but these are not frequent or extensive contacts.
Q. You're describing much less frequent contact than some newspaper editors have described. What's your view as to the reason for that discrepancy?
A. I can't, to be honest, speak for them, but I can speak for myself, which is that one of the things I try and do and my senior colleagues try and do is to remain an impartial organisation with relatively arm's length relationships and businesslike relationships with all different parts of British society, including the British establishment, and that goes for the police and politicians as well.
Q. That does take me to my next topic, which is politicians. You have described contact with politicians over investigations by the BBC of FIFA. Could you help us with the sort of influencing that was attempted when the BBC was investigating the FIFA scandal?
A. I think the important point I want to the begin with: everyone is entitled to have an opinion and everywhere is entitled to express their opinion. In particular, in matters to do with the BBC, I feel they're entitled to express to me, whether it's someone I bump into in the supermarket or whether it's a senior politician, and I have never, while Director General or indeed before then, in my view, been put under what I would describe as unreasonable or improper pressure. But the investigation into FIFA was controversial because it was proposed and indeed we did broadcast the investigation in the week when FIFA was deciding which country would stage the 2018 2022 but 2018 World Cup. England was one of the candidates for the 2018 World Cup, and it was felt by some, including some senior politicians, that it might adversely affect England's chances of winning the World Cup in 2018 if this programme was to go ahead as scheduled. My response to them which I have to say, nobody, in a sense, then came back or tried to overturn or overrule my response was: I believe that we were right to pursue the investigation and I thought it would be wrong to adjust the scheduling or the character of the programme in any way, and I wanted to stand behind Panorama's absolute right to do that investigation and to broadcast it as scheduled, which is what we did.
Q. If I'm understanding you rightly, pressure of that sort from a politician or a request from a politician of that sort you would regard as proper and something to be expected?
A. I think anyone can ask the question and find out whether you've kind of thought about these dimensions, but I mean the point I always make on these occasions is a straightforward one, which is that we our job and the way we serve our audience and serve this country is by telling the truth in our journalism, and we need to press on, frankly, regardless of other political or other considerations.
Q. Could you help me now? You had two years as chief executive with Channel 4. Was there any significant cultural or ethical difference between Channel 4 and the BBC when it came to broadcasting standards?
A. In terms of accuracy, fairness, impartiality and so forth in the journalism of Channel 4 News and other journalism on Channel 4, I would say no. I was very impressed by the editorial culture I found there, and I believe that Channel 4 is has done much distinguished investigative work over the years and certainly from my time there and from everything I know about Channel 4 since, has remained a well-run and editorially tightly managed enterprise, which, as I believe about the BBC as well, nonetheless manages to do very brave and groundbreaking journalism. In areas of factual programming, particularly factual entertainment programming, comedy and drama, it's probably true to say that the public have slightly different expectations of Channel 4 than they do of the BBC in terms of the edginess and strength of some of the old Channel 4 shows. That's part of Channel 4's remit, in a sense, is to be not the BBC, to be particularly in certain areas of comedy.
Q. It's just the ethics that I'm interested in.
A. Ethics, I would say a very similar environment.
Q. Thank you. The final thing I'd like to do is look at the future. I'd like to do that by examining a speech you made in, I think, September of last year at the International Press Institute's annual world congress in Taiwan. It's at tab 12 of the bundle. In that speech, you expressed some concerns about the future of investigative journalism. You dealt with a number of the pressures on investigative journalists. The first one I'd like to pick up on is the economic pressures.
A. Yes.
Q. Here you recognise that there are economic pressures now, but you went on to point out that there are a number of newspaper titles which use investigative journalism as a way of securing competitive differentiation in the marketplace, and you named the Sunday Times, the Independent and the Guardian in that regard.
A. Yes.
Q. Do you regard the economic pressures on the industry at the moment as a real threat to ethics or not?
A. I think to be honest, that's a slightly different question.
Q. Yes?
A. I mean, I believe that we've seen a period where I think Fleet Street and I think this is true of mid-market and tabloid Fleet Street as well as broadsheet Fleet Street has actually done some outstanding investigative work. I mean, this has been a period of, I think, great strength in investigation in investigative journalism for newspapers, something which shouldn't get lost in this broader debate. It's not clear to me, and it's fairly straightforwardly, I am a broadcaster and that's my experience, and I have not worked in newspapers. It's not clear to me why necessarily the economic pressures on newspapers would go directly to ethics. I can see that they might go to the amount of resource, the amount of time, the amount of journalistic time that might be available for investigative journalism. I don't see intrinsically why the economics should necessarily mean that ethical standards will be reduced. Some people, I know, have claimed that economic pressures led to, in quotes, shortcuts being taken, but I can't I've not witnessed that and can't give you any evidence about it.
Q. Moving on to the next pressure you identify, which is the Internet. You conclude on that subject that: "The explosion of digital media has, if anything, strengthened the argument for a cadre for professionally trained journalists to sift and make sense of it [I think that's true of news generally]. How else can the public satisfy themselves that what they are reading or looking at is an important fact and not unsubstantiated gossip or a random element in someone's delusional conspiracy theory." That's against the background of accepting that some scoops are, these days, broken first on the Internet by bloggers.
A. Yes. You'll note that in that paragraph I talk about the decision of Wikileaks and Julian Assange to bring a basket load of very well-known newspapers around the world to sift through and, in various ways, validate the material that was there. I think that more broadly I would say that actually the saliency of rather traditional news brands, including the BBC's, on the Internet is very striking, the extent to which, rather than, in a sense, a wave of new brands arriving, that some of the most best-known brands in global traditional media loom very large on new media. There are some new ones but the New York Times, the Guardian internationally and the BBC are all rather traditional brands who are widely trusted in an Internet context, partly, I think, because of the sense of security that people get when they go to those websites.
Q. You strongly make the case for the strength of a reputable and regulated source of news on the Internet. Can I ask you: do you think that there is a need for regulation of news bloggers, or perhaps at least some of the more professional of them, in the future or are you content to see something of a Wild West continue?
A. On the Internet?
Q. Yes.
A. This is a I mean, I think one has to be realistic about I mean, whether there might be some, as it were, desired need or not, about the practicalities of what's going on on the Internet, and it seems to me to you know, as it were, to attempt to apply the same level of control and supervision of the global Internet that one might seek to apply to a public broadcaster or cluster of public broadcasters in the UK is simply impossible. I guess that the question is: is there a line that you can draw, maybe more than one line, inside the Internet, which has both conceptual credibility and also is practicality drawable? Is it possible to say that the extensions of broadcasters and newspapers, both international and domestic, which aspire to professional news, aspire to editorial control in other media, can be regarded as a subset of the Internet, beyond which you may accept that it's the Basic Law of defamation and of child protection and so forth which will apply and nothing more than that, or do you want to be more ambitious? I think it's the practical issues in trying to be much more ambitious than that would be insuperable, but it's a matter I guess the Inquiry is going to look at.
LORD JUSTICE LEVESON
Yes. But your view of the problem is important, because it's something you've lived with sore some time.
A. And I'm it seems to me that the Internet conveys many different kinds of content. At one extreme, you have and you've heard me say this it conveys BBC content, which I would hope we would deliver to the same standard as we do in television and radio, ie to really quite a high standard of and with any amount of oversight and beyond that. At the other end, you have things on the Internet which have the status essentially of individual letters or correspondence, at which, it seems to me, the idea of a full third degree wouldn't be appropriate, even if it was practical.
LORD JUSTICE LEVESON
No, the question is
A. The issue is where you go in the middle.
LORD JUSTICE LEVESON
where you could draw a line between what is chat but digitally
A. Yes.
LORD JUSTICE LEVESON
and what is effectively a business. So if you're making money out of a website or whatever, does that justify a different regime
A. Yes.
LORD JUSTICE LEVESON
than if you're simply privately blogging or tweeting or commenting on Facebook.
A. Yes, and two other factors one might look at is reach. In a sense, just how big an impact would something on a particular website have? If something's only going to be read by one other person, if that, it's very different than if it's going to be read by millions of people. And I think there's something about credibility. A damaging allegation made under a very credible banner might do much greater harm, if untrue or unfair or an intrusion of privacy, than one which was, again, somewhere in the kind of wild darkness of the Internet and with no credibility behind it. That, I think, does seem to point to me to a division where you're talking about significant enterprises with significant reach and some level of aspiration to be credible.
LORD JUSTICE LEVESON
Yes. The only distinction that I've been able to think about and I'd be grateful if you have any further thoughts on it is where it's being run as a business. We know that some people in public life have blogs, which are just their own thoughts, which have an enormous reach.
A. Yes.
LORD JUSTICE LEVESON
My reaction is: however wide the reach of that individual, it's probably beyond the level at which anybody should be thinking about whether there is some supervening control.
A. I understand the point. I suppose my point is almost the other way around, that there might be some businesses on the Internet which are so small that attempting to bring them into the net of regulation would be difficult, if not impossible.
LORD JUSTICE LEVESON
I agree.
A. And it may be that in addition to your test of "is it a business", you might need "of sufficient scale", measured by reach or influence or some such.
LORD JUSTICE LEVESON
Whether you can do it or not or how you do it, I don't know.
A. Nor do I.
LORD JUSTICE LEVESON
I'm very conscious that it is another player in the room which has to be thought about.
A. No, very much so, and I think in particular it would be perverse not just for the BBC but perverse, I think, for any notable media brand in the UK, to say, "We'll be restrained in this medium, in print or on television or on radio, but because of the character of the Internet, things that we would never dream of bringing to the public's attention over here, we can over here." So I think for very large media enterprises unfortunately, there's no escape from the fact that wherever you do it, in some way the same ethical standards and principles should apply.
LORD JUSTICE LEVESON
Some of the complaint I've received is that: "What we can't do in print, somebody else can do on the Internet", and the discussion about injunctions has been a very good example of that.
A. All I would say in response to that is that you have to be quite careful, I think, about exploring exactly where competitive advantage might lie there. If somebody else it goes to your point about business. If somebody else is, as it were, monetising the story on the Internet, an "exclusive" which is unregulated and on which they're making money which otherwise might have been made by a media player in print or in broadcast, I take the point. But if it's simply out there not being monetised, it's not obvious that the competitive advantage is lost.
LORD JUSTICE LEVESON
I take the point, which is why I sought to draw the distinction that I did.
MR BARR
Can I move now to page 6 of your speech, where you look to the future under the heading "An agenda for reform"? You set out some basic principles at the start of this section. In the third paragraph under the heading, you say: "I'm not suggesting that journalism without a clear public interest justification should be banned, by the way. In a free society, newspapers and others should have the right to publish whatever they want without prior restraint, although they must also face the consequences, legal and otherwise." Can I understand where you're coming from? Are you there referring only stories with a public interest justification or are you asserting that the newspapers should always be able to publish just what they want, as long as they are prepared to accept the consequences later?
A. I think I'm suggesting the second of those two. In other words, that we haven't talked in great detail about the public interest, but I accept that there are some stories which fit under a public interest justification. There are other stories which, you know, in the old cliche, the public might be interested in but don't fit under a public interest, that arguably the paper should still be able to publish and bring to the public's attention. They might be completely harmless and everybody might be happy, or they might be stories which provoked other kinds of challenge.
Q. I'd like to explore that assertion then, because if the press are to be free to publish whatever they like without restraint, doesn't that leave the potential for them to do enormous damage to people which can't properly be repaired afterwards?
A. I believe that the dangers involved in prior restraint to freedom of expression and, I mean, what lies behind freedom of expression, the freedom of the public to hear what they want to hear, and anything they want to hear, are so great that although I take the point about privacy, I'm not persuaded that prior restraint is a safe course to go down.
Q. But doesn't it leave the newspaper owner, the person who's able to buy his ink by the barrel, free to destroy and target his enemies?
A. I think it depends on what post-publication redress looks like and in particular, whether the incentives for the not just the newspaper but for the media provider are such that the dangers of post-publication redress are so severe that they think twice. It's not obvious to me that the only way of solving the problem is by introducing prior restraint.
Q. You're not
A. And I think the business of how you get who is to decide and how is it to be decided is likely to be troublesome.
LORD JUSTICE LEVESON
One of the ideas that we've discussed and I repeat they're ideas only is that in a type of privacy invasion story, there should be a facility for a publisher to go to some body it doesn't matter what you call it or how you define it for these purposes and use the validation of not prior notifying, and therefore risking prior restraint, within any subsequent civil proceedings, and failure to go and get some sort of recognition of the validity of the judgment could equally be taken into account in subsequent civil proceedings as justifying some form of exemplary or aggravated award.
A. I think I understand the idea. I think there is a question about whether we can be certain you've heard me talking about the BBC and our requirement for prima facie evidence, and indeed for a very strong public interest defence. Are we certain are we always certain that revelations which turn out to have very considerable public interest, it turns out, whether that is always known about enough in advance for the kind of procedure you're talking about?
LORD JUSTICE LEVESON
At the end of the day, that would be something that somebody would be able to take into account. The truth is that at the moment of publication, the publisher knows what he knows and knows only what he knows. He doesn't know what might ultimately come out of it.
A. Yes.
LORD JUSTICE LEVESON
If there's some uncovenanted consequence somewhere down the track, then so be it, but I'm not convinced that that possible subsequent justification should affect the way in which you could go about it. I'm not saying "must"; I'm not saying I necessarily agree.
A. I understand.
LORD JUSTICE LEVESON
I'm merely trying to find a way to balance the powerful complaint, and it's particularly in relation to privacy
A. Yes.
LORD JUSTICE LEVESON
that once it's out there, it's out there forever, and you can never ever put the genie back in the bottle. You can't unreport something that's in the public domain and therefore, although I take the point you make about the danger of requiring prior notification, I am seeking to find a way of actually making the point that you yourself made, namely to make it sufficiently risky for a publisher not to notify that he has to be very careful about the information he has, otherwise the risks are that much greater.
A. I understand.
LORD JUSTICE LEVESON
All right.
MR BARR
You're not trying to suggest, are you, that newspapers shouldn't behave ethically and have their own ethical codes to ensure
A. Not at all, not at all. Not at all. And, moreover, I think they should be it seems to me that all media players should be held to account for the decisions they make in the context of their ethics and standards.
Q. You go on to tell us that you favour two systems, one for broadcasters and one for the print media, and you explain that you are against statutory regulation. Can I explore that in more detail? Are you against any sort of legislation at all within a future statutory scheme, or do you see a place for legislation as a backstop measure?
A. Certainly I think that the statutory approach is clearly possible in principle. Indeed, the BBC exists under a quasi-statutory system and Channel 4 straightforwardly under a statutory system. I say I doubt the path will be as practical and fruitful as effective self-regulation. Now, I think it's fair to say that one of the things that I've been struck by, by looking at and reading reports of evidence to this Inquiry, is a number of troublesome issues with the context of self-regulation, of which one obvious example is the issue of membership. If it's an industry body which you can
LORD JUSTICE LEVESON
I'm interested you consider that troublesome. I certainly do.
A. And the moment that you, in the argument, end up believing that compulsion is necessary, that it's important that people are members of the club, if the club is to be a complete solution. I would accept it's hard to see how that can be done without some kind of statutory framework. But it's possible to imagine, I think, a scenario where you have an industry-led body
LORD JUSTICE LEVESON
Oh
A. whereby, you know, there might be a statutory solution for refuseniks. It could be a new statutory regulator. It could be we already have in broadcasting Ofcom. You could have a statutory alternative into which, as it were, refuseniks end up automatically if they're not part of the industry-led body. So it's possible to imagine
LORD JUSTICE LEVESON
The only problem with that is then you have parallel systems. But I've not suggested statutory regulation in any way in relation to content.
A. Yes.
LORD JUSTICE LEVESON
I'm merely seeking to provide the muscle I think Mr Harding spoke about it, and I think Mr Dacre's talked about the "teeth" to make decisions that stick.
A. Yes.
LORD JUSTICE LEVESON
How you staff it would have to be independently organised. It would have to have an enormous press input. It would have to have a public input.
A. Yes.
LORD JUSTICE LEVESON
But beyond that, I'm simply listening. But I think what Mr Barr was interested to know, and I'm certainly interested to know, is whether self-regulation can exist, what is effectively self-regulation
A. Yes.
LORD JUSTICE LEVESON
can exist within a framework that means that it bites everyone.
A. Yes.
LORD JUSTICE LEVESON
In other words, you can't simply say, "Well, I don't want to be a member of the club."
A. Yes. I say in the speech that the self-regulatory body would have to be given the power to conduct unfettered investigations into complaints and in cases of serious complaints
LORD JUSTICE LEVESON
I would love to know how you can do that without some sort of framework.
A. Well
LORD JUSTICE LEVESON
Because I'm just not sure about the contractual ability to say, "You can impose a fine", or: "You can investigate."
A. Yes.
LORD JUSTICE LEVESON
And if the relevant newspaper or whatever says, "Well, I'm not prepared to give you my emails", what do you then do? Are there civil proceedings for an injunction to require them? I mean, it's that sort of issue, and I appreciate that this is nuts and bolts, but that's what lawyers tend to think of, in terms.
A. It seems to me that you have a choice, probably, therefore, about some level of direct statutory framework for the can we still call it self-regulatory body itself? Or you can countenance some form of parallel structure, where you have it certainly wouldn't have to be Ofcom, but let's take Ofcom. Ofcom has already, in broadcasting, the power to conduct investigations, to impose sanctions and so forth. Is it not possible to imagine a self-regulatory body which has the power to refer serious cases to a second body?
LORD JUSTICE LEVESON
Of course. Of course it is. But the risk of that is that if there's going to be a fine or some sort of penalty imposed, and that has to be your secondary body, then I would anticipate some of those who are very enthusiastic about self-regulation would say, "Hang on, it's this extra person who is now imposing the penalty because we couldn't", and therefore although you still have your press standards body, which is entirely self-regulatory, that becomes a little bit of a cloak, because ultimately, if they want to do anything, they have to hand it on to somebody else. But if you have a framework which means they can do it, they can investigate and they have the power to do this, that or the other, then you never get to
A. Absolutely, but in your second case, it's then become a statutory body in all but name, hasn't it, itself?
LORD JUSTICE LEVESON
Well, I'm not sure.
A. With all those additional powers and the compulsion for people to join it.
LORD JUSTICE LEVESON
But then the question arises: who is doing it? Who is deciding it? And the membership of it could be very, very different. People tend to think not serving editors any more, and I'm not trying to identify who but it could be members of the industry.
A. If you look at the membership of the BBC Trust and of Ofcom, you'll find distinguished ex-editors and journalists who are used in these complaints and appellate processes in exactly that way. But these are clearly statutory or quasi-statutory bodies. In other words, the fact that you have some industry representatives on the body doesn't itself make it a in my view, a self-regulatory body as such.
LORD JUSTICE LEVESON
No, I understand that, and the whole thing has to be thought out, but the thing you have in relation to the Trust is you have a charter, you have a whole structure in place, and the Trust is part of the BBC.
A. Yes.
LORD JUSTICE LEVESON
In other words, its decisions bite
A. Yes.
LORD JUSTICE LEVESON
because the charter of the BBC says its decision bite.
A. Yes.
LORD JUSTICE LEVESON
Unless somebody says the decisions of whatever body you set up bite, then they don't necessarily bite, absent consent.
A. No, indeed.
LORD JUSTICE LEVESON
That's the issue.
A. But isn't it another challenge that, in a sense, the BBC, which reaches 95, 97 per cent of the British population every week and hundreds of millions of people around the world is paid for by the public. It's an important point we haven't raised yet. The money we spend in a sense, there is a very good reason why there's a kind of not just one belt and braces but a number of braces and so forth, to make sure this entire system is accountable and that findings and sanctions and so forth do bite, and crucially, there's transparency with the public about each stage of it, including apologies, corrections, complaints and so forth. That would be a very onerous system to
LORD JUSTICE LEVESON
I'm not for a moment suggesting that one could impose upon the press the type of system that operates in relation to the broadcast media, although, interestingly, of course, you are competing with them online in just the same way, whether somebody goes to the BBC or the Times online or the Daily Mail online or whatever. But you couldn't do that for all the reasons you mentioned. At least, that's my present view, I say immediately.
A. And it would be undesirable. I think it is quite valuable, in terms of plurality of media in this country, that the press are not as regulated and constrained as a broadcast media whose power is more and whose reach is broader and more immediate and therefore whose influence is potentially
LORD JUSTICE LEVESON
I agree with that as well. I want to ask some questions about plurality in a moment, but perhaps we'll come to that.
MR BARR
My penultimate question for you, Mr Thompson, picks up on what you have to say about the coverage of the hacking scandal at the top of page 7 of your speech, where you describe it as a betrayal of journalism that the industry didn't report on itself, at least without some prominent exceptions, until the story became simply too big to ignore. Isn't that silence on such a big story eloquent of the need for tighter regulation in whatever form that might take?
A. Firstly, I think it's troubling. Regulation might be part of the solution, though I'd say to you that it seems to me there are quite interesting questions about corporate governance and about organisational culture there as well, which regulation on its own probably wouldn't solve. But I want to say more broadly that since I gave this speech, I think that coverage of this story and its ramifications has been very widespread in the print media and some excellent journalism has been done across newspapers on the story, and I think in a way, for everyone who is covering the story and the BBC is covering it itself I think the most important thing at the moment is to keep the coverage as accurate and as dispassionate as possible, given that so many of the fundamental questions of fact are still, to some extent, underdetermined. One of the reasons this Inquiry is important is because I don't think we know yet enough of the underlying facts and basic questions. How widespread were some of these practices across Fleet Street I don't think we have answers to yet.
LORD JUSTICE LEVESON
You appreciate, of course, that in part one of this Inquiry I can't deal with that. This is very much the Polo with a hole in the middle.
A. Which is why, in a sense, I think proper dispassionate I think there has been a danger of somehow that the whole process gives the sense that all newspaper journalism or all tabloid newspaper journalism is bad or dishonest, and that simply isn't the case, and I think that trying to keep objectivity about the range of journalism and about the quality of much of our newspaper journalism is an important part of the story as well.
MR BARR
That's a concern which the Inquiry is astute to.
LORD JUSTICE LEVESON
Mr Thompson, if I've said that once a day during the course of the last few months, that's the minimum.
A. Yes.
LORD JUSTICE LEVESON
Of course we are talking about what is, in volume terms, a small issue, but in public perception and importance, really, I believe, very important.
A. Indeed.
MR BARR
My final question is: is there anything else about future regulation that you would like to say to the chairman?
A. I think the only point I would make is back to plurality, really, which is that I think that this country, in the end, has benefited from having a range of media which are funded differently, constituted differently, have different objectives, and it's a system which, to some extent, is potentially reinforcing of itself. When the BBC was in a real crisis during the Hutton affair, and there was a appeared to be a stand-off between the BBC and the British government, one of the things that, in a sense, made that stand-off possible for the public to understand and to engage with was the fact that we had a we have an incredibly lively, varied press, who were able to freely report on it and although of course I understand it's not for a second the intention of and would not be the intention of the Inquiry to somehow put every bit of British media into one basket, those issues about the protection of plurality, so that we don't end up with a system which can, at some moment in the future, be controlled, whether by a particular political party or by a kind of moment of moral panic, and where the range of information and debate available to the public is reduced that is very important, whatever the precise solution which has to be arrived it in terms of reform of the regulation.
LORD JUSTICE LEVESON
I agree with your basic proposition entirely, but let me just move on. Before I forget, I am going to go back to the evidence you just gave a moment ago about the possibility that that if somebody didn't join the club, there could be some statutory solution. That would require the club to be defined in a statute, wouldn't it?
A. Yes.
LORD JUSTICE LEVESON
Because
A. Yes, it would.
LORD JUSTICE LEVESON
otherwise you could have six clubs and you could say, "I'm not a member of that club, but I'm a member of this club."
A. Yes.
LORD JUSTICE LEVESON
So even in that example and that might be a solution, I'm looking for anything that could work then that still would require some descriptor.
A. Yes, it would, and then perhaps the debate then moves to, you know, how light a statutory framework can be, I guess, to allow a body which essentially has been co-designed by the industry and will be run with the significant participation of the industry.
LORD JUSTICE LEVESON
I agree. And it could generate a kite mark, and if the body were given the power to require evidence or to impose financial penalties, actually you've created the type of organisation that is what I've been talking about. The only difference is and it's an interesting difference that still you wouldn't have to be in it but if you didn't, there's something rather less pleasant around the corner. Well, that's worth thinking about.
A. It might be the hell has got no occupants as well.
LORD JUSTICE LEVESON
That's true. Let me just pick up a number of other points. I wanted to come back to public interest, which you said we've not really talked about. There are a number of descriptions of public interest in a number of the pieces of paper that you very helpfully provided but I'm actually going to go, rather than to the paper that the BBC has produced, back to your speech, because there is something in your speech which I would just like to ask you about.
A. Yes.
LORD JUSTICE LEVESON
What you say in your speech is: "They are all people for whom the public interest is not some infinitely elastic concept to justify any intrusion or journalistic malpractice, but it means something precise." Here you're talking about some of your investigative reporters.
A. Yes.
LORD JUSTICE LEVESON
But I apprehend you may be talking about yourself as well. "The civic benefit, not just in terms of the public's right to know but also, at least in principle, in terms of better policies and laws and better conduct by public and commercial bodies alike, may be derived by exposing the kinds of serious wrongdoing, deception, hypocrisy and unjustified secrecy that go beyond the private to have real and significant public ramifications." It's that phrase that I just wanted to ask you about, "to go beyond the private to the have real and significant public ramifications". Would that be for you a fair description of the public interest?
A. Well, it was indeed a summary that I and I think it is. I mean, you will see a more there's this prosaic list in our guidelines mentioned in my witness statement. But yes, I think that summary is
LORD JUSTICE LEVESON
Now, here's my question: do you believe that that concept is or should be different for a public broadcaster to an independent broadcaster to the press generally? In other words, are you setting for yourself, in this descriptor, what you believe, as a journalist with a lifetime's experience of the business, is a higher standard than should apply, first of all, if one takes the public nature of broadcasting out to another broadcaster, and then to the press?
A. No, I think I'm not saying that. I think I'm saying that that is my definition of the public interest, which I would expect, in a sense, to apply to all instances where the public interest is cited. However, I might well go on to say that I would expect a public broadcaster like the BBC to have a particular focus on ensuring its journalism met the public interest and had a public interest justification, whether it was an investigation or not, much more than I would, I don't know, a gossip magazine. In other words, it's perfectly possible to conduct journalism which does not meet that high bar. I'm sceptical about whether you should then be able to use that high bar to justify what you've done unless you can justify it. So, in other words, I think that what varies across the landscape is not what the public interest is but to what extent the missions of different media organisations are about focusing on it, keeping almost exclusively to it almost everything the BBC does in journalism I would hope would meet a public interest test or whether it's a media organisation which sometimes might use a public interest defence but sometimes might be doing something which is closer to offering journalistic entertainment to the public, which must be defending on its own merits or demerits.
LORD JUSTICE LEVESON
And if nobody's harmed by it, it may not matter.
A. Yes.
LORD JUSTICE LEVESON
I understand that point. But if one goes to one of the types of stories that has been the subject of well, actually one could talk about each of the stories that those who have given evidence to the Inquiry have spoken about. Whether it's intrusion into a footballer's sexual activities or into the background of somebody who's suspected of crime, the test, if it involves an invasion of privacy or the like it's quite difficult for me to see why it should be different.
A. Well, the second I think, if I may say so, there's a difference between a proposed investigation into the private life, sex life, of a footballer as such, and the investigation into someone who might be responsible for a crime. I would say that the exposure of a single crime meets my test of I mean, in a sense, any crime potentially certainly the reason we have public law courts is
LORD JUSTICE LEVESON
Yes, I accept that, I accept that.
A. So the second one I think potentially you could make the case. The first one, unless there was some other circumstance and there might be another circumstance. We've known sometimes controversies about whether footballers in prominent positions in the national squad at that point it becomes a matter of legitimate public debate.
LORD JUSTICE LEVESON
You see, it's always going to be fact-sensitive.
A. Yes.
LORD JUSTICE LEVESON
And the best example is the Ferdinand litigation, where it was because he'd become captain that actually played an important roam in the decision-making of Mr Justice Nicholl.
A. Yes.
LORD JUSTICE LEVESON
I just wanted to ask you about that, because "real and significant public ramifications" seems to me to be quite a useful phrase which it may appear in other places, but I saw it for the first time, I think, in your speech. The next thing I want to ask you about is before I do, is there anything else that you feel that you can add on the question of public interest? The next thing I want to ask you about is plurality. I'm sure you're right when you're talking about the press but one of the criticisms that might be addressed to the BBC is the extent to which the reach of the BBC is undermining plurality within the press, and in particular in regional and local newspapers, where the BBC has now, as it were, grown roots into local and regional news in a way that is still developing but may be said to be undermining the viability of local newspapers. I'm sure that's a topic upon which you have thoughts.
A. A big topic, and perhaps best dealt with in summary now, but at whatever length you wish. Firstly, the BBC's local and regional programming services have not grown extensively in recent years at all. We have a system of local radio stations which we began to build out in the 1960s and were completed in the 1970s. We have regional television services, essentially dropping a half hour programme at 6.30 and bulletins around the day, which have been going, again, for 50 years, 60 years, and we have relatively modest websites associated with roughly the same geographical areas as our local radio stations. Slightly different arrangements in the other nations. I think what has happened is two things have happened: firstly, the economics of local and regional newspapers have deteriorated for reasons which are quite other than the BBC.
LORD JUSTICE LEVESON
Yes, I understand. Advertising and recruitment
A. Classified advertising and so forth. Secondly, arguably ITV's relative investment in both in local and regional journalism but also more broadly in production outside London has diminished, and the BBC, not in journalism but in certain kinds of network production, has slightly increased its proportion of spend. I don't think any of that, to be honest, adds up to a crisis of plurality, nor is it obvious that people are substituting a decision to buy a newspaper or look on the local news website by using a BBC service instead. Broadly, heavier use of BBC websites is correlated with heavier use of other websites at every level: local, regional, national. In other words, the more people are interested in the news, the more they tend to use these kinds of sites. So I have yet to see any evidence of a kind of tangible kind that there's a substitution effect; in other words, that the use of the BBC is adversely affecting either the economics or even the usage of local and regional media, and broadly, when it's asserted, it's asserted without any data to demonstrate it. More broadly, I would say about the BBC that the BBC plays quite an important there's no question that the BBC is a very, very influential provider of news and journalism to the UK. We've talked about network news. We provide about just under a quarter of the minutes broadcast of journalism, network journalism, and we represent over 70 per cent of the consumption, which suggests something about the public's appetite for and trust in the BBC, that consumption is so much greater than the share. But the very important role the BBC plays is, in programmes like Question Time and any questions, and in our many phone-ins in other words, discussion programmes is actually being a platform in which different opinions and different voices are heard. One of the advantages of being an impartial broadcaster is that we tend to want to include opinions of every kind in our programmes, which is sometimes not true of the print press and sometimes, in a sense, the range of voices is narrower in newspapers. So I would see overall the BBC, at national and international level but also regionally and locally, as quite a strong supporter of plurality in the system. But to go back to my previous point, I think a system where the only kind of media available came from the BBC, or even from the public broadcasters, would be impoverished compared to what we have today, and I think that the pungency of the opinions and the cut and thrust of our newspapers is an incredibly valuable part of plurality in this country.
LORD JUSTICE LEVESON
Yes. The problem is how to support local newspapers and how to do something that makes it and how to make sure that one doesn't do something that makes it more difficult, rather than easier for them to thrive.
A. Indeed, and certainly I think a straightforward question about the cost to a local newspaper of any proposed regulatory solution is a significant question.
LORD JUSTICE LEVESON
Now you're becoming an advocate again, Mr Thompson. One further question: do you believe that there has been any limitations on your editorial discretion consequent upon the presence of Ofcom?
A. Could you help me by just describe what you mean by "limitation"?
LORD JUSTICE LEVESON
Yes. Many people have said it would be terrible to have any sort of system that had a statute anywhere near the regulation of the press because it would destroy freedom of expression, the free press, and really quite grandiloquent statements of a world that nobody wants. I've just wondered whether you, who do live in a world regulated by the state and I appreciate you're a public broadcaster and you have all the other comforts of that position, but I just want to know whether this argument is being overstated.
A. I think the answer the essential answer is no, but it's worth saying that both the BBC Trust, the charter, the BBC guidelines and Ofcom are all configured absolutely by people trying strenuously hard to achieve what I think you're trying to achieve in the context of the press, which is an appropriate balance between creativity, risk-taking, originality, courageous journalism and proper controls in the context of public broadcasting. But I think if you simply took the Ofcom code now and threw it over to the press, I think it would be very constraining of the press. So I think in a way, I think it's horses for courses, and we have a system in broadcasting, grown up over decades, which is configured with a particular vision of public broadcasting in mind. Not just in my mind, but in the mind of the regulators.
LORD JUSTICE LEVESON
Yes. I wasn't actually thinking of simply saying, "This is all very easy, just make them all subject to Ofcom." At least, I'm not presently thinking that.
A. But I think the objection it's not I'm essentially, frankly, a bystander to this debate, but the objection to
LORD JUSTICE LEVESON
Yes, I wonder how impartial a bystander.
A. I hope, particularly in our coverage
LORD JUSTICE LEVESON
Oh no, in coverage, certainly, but
A. Because of one's our position as a big media player in this, we of course are very interested in the broad issues of regulation of the media, which is why it's reasonable indeed, our charter specifically allows us to express opinions on these matters. My point is simply, I think, that the objection to a statutory framework or a statutory constitution or a statutory body is not that it's impossible to lay out an appropriate code for the press, because in a sense that's what a self-regulatory body would have to do anyway. It's more to do with whether or not the independence of the press from government and from other powerful interests could be guaranteed in the long-term in a framework which, at any point, Parliament could change.
LORD JUSTICE LEVESON
Yes. Well, that brings me on to the way in which the freedom and the independence of the judiciary are maintained and preserved by a statutory provision. Any attempt to change the detail would effectively impact on that statutory provision, but there it is.
A. It's worth saying in the context of the BBC that certainly historically the BBC has argued against a statutory foundation, preferring instead the idea of royal charters given over 10-year periods, precisely to stop the risk of political changes to its constitution in mid-flight, as it were.
LORD JUSTICE LEVESON
Yes, but we'd never be changing the constitution of any of the press; we'd only ever
A. No, the danger I absolutely agree. The theoretical danger is at some point if in the middle of a particular political moment, where it's felt that the press need to be gripped, Parliament decides to change the rules of how it's regulated in mid-flight.
LORD JUSTICE LEVESON
The answer to that may be and I wouldn't want you to think that I'm fighting for a solution I already have, because, as I said, I haven't, but the fact is that if that situation arose, there would be nothing to stop Parliament passing an Act tomorrow anyway.
A. That's true.
LORD JUSTICE LEVESON
Mr Thompson, thank you very, very much indeed.
A. Okay.
MR BARR
Sir, the next witness is Lord Patten. CHRISTOPHER FRANCIS PATTEN, LORD PATTEN OF BARNES (sworn) Questions by Mr Barr
MR BARR
Lord Patten, could you tell the Inquiry your full name, please?
A. Christopher Francis Lord Patten of Barnes.
Q. Are the contents of your witness statement true and correct to the best of your knowledge and belief?
A. They are.
Q. Lord Patten, you are presently the chairman of the BBC Trust. You come to that office with the background of a successful career in politics. It's right, isn't it, that amongst other things you were Secretary of State for the Environment, the chancellor of the Duchy of Lancaster and the chairman of the Conservative party?
A. Correct.
Q. Thereafter, you were the governor of Hong Kong until the handover of power?
A. Correct.
Q. You were the European Commissioner for external relations?
A. Yes.
Q. And more recently, you have had a career as chancellor of the University of Newcastle and then, presently, the chancellor of the University of Oxford?
A. Correct.
Q. You assumed the role of chairman of the BBC Trust on 1 May 2011 and are therefore something of a newcomer to the broadcasting media. I'd like to take advantage of that fresh pair of eyes to ask you your views about what you found when you assumed office. First of all, could I ask you about the arrangements between the Trust and the BBC executive? We heard them outlined in Mr Thompson's evidence. Are you satisfied that the arrangements for an independent sovereign body and a separate executive are effective and appropriate at the BBC?
A. Yes. They emerged from the implosion of a former system of governance in the wake of the Hutton Inquiry and imbroglio. I think they work in a satisfactory way. The Trust has the strategic authority. It sets out the policies and guidelines which the executive should pursue. It deals with complaints, it deals with the editorial guidelines, vetting those, and I think is properly conscious of the distinction between its own responsibilities and the responsibilities of the Director General, as the editor-in-chief. I would never ever seek to interfere with one of his editorial decisions. I wouldn't, for example, ever ask to see a BBC programme, at least not in conceivable circumstances, before it was broadcast, if the Director General had decided it was worth broadcasting. So I think there's a real distinction but I do think we can provide a robust system of government. It may not be perfect but I'm rather impatient of endless debates about institutional architecture, having spent five years of my life at the European Commission.
Q. I shall try not to question you on that theme for too much longer. You chair a trust which has a vice-chairman and ten ordinary members, including a member from England, Scotland, Wales and Northern Ireland respectively.
A. That's correct, and with a range of experiences, and perhaps, particularly germane to the discussion which I've listened to this morning, the member for England, who chairs our editorial standards committee, has a long experience in journalism of getting on for 30 years, I think 29 years. He was the editor of a Metropolitan evening paper which itself had an investigations unit, has done work with the Press Complaints Commission and is therefore extremely professionally well informed about the issues she and her committee have to deal with.
Q. Amongst the powers of the trust are to point the chairman of the executive board; is that right?
A. That's right.
Q. We've heard some of the other powers that you've had. When you assumed office, you commissioned a governance review, didn't you?
A. That's right.
Q. If I've understood it correctly, essentially two main themes emerge from that. One was that the complaints system was capable of improvement; is that right?
A. That's truly right.
Q. And is something being done about that?
A. Yes. I noticed that you had an interest in the complaints procedure. Perhaps I can just sketch out again briefly what it consists of. There are actually three parts. The first part is dealt with by the executive's information department and, if necessary, by the programme itself, and about 240,000 people, as the Director General said, use that procedure. Those who aren't satisfied by it can go to a second procedure, which I think only involves about 200 when I say "only about", it is 257 people at the last count whose complaint is looked at by the complaints unit. Then, if they're not satisfied, about 57 in the latest count appeals are taken by the Trust where there are matters of substance which the Trust believe may not have been adequately dealt with, and I think the problem has been that the system is very complicated for people to understand, so I wanted there to be greater clarity about how it should work and more simplicity in that sense, and I also thought that it was very important for us to be faster, if we could, and quicker, and I hoped that the appointment of of an editorial of a chief of editorial complaints, of corrections, will help to deal with that.
LORD JUSTICE LEVESON
Am I right in saying that it only gets to the final stage, to the Trust, with the permission of the Trust?
A. That's correct. But
LORD JUSTICE LEVESON
So you have a whole parallel legal system here which requires leave to appeal to get to your body?
A. Well, we do have our own in-house legal advice and we also acquire, at exemplary cost, the best legal advice from outside.
LORD JUSTICE LEVESON
Yes.
A. I think it shows in the quality of some of the judgments we've made. For example, in the Primark case, which you talked about earlier.
MR BARR
I was going to come to that, because as to the thoroughness of investigation of complaints at Trust level, we have the Primark decision in the bundle. It's a very thorough piece of work, and I wanted to ask you: is that representative of the sort of decision that one gets at Trust level?
A. Yes, it's very typical of the quality of the decisions that are made and the thoroughness. I think sometimes journalists understandably worry about the thoroughness of the process but I do think that at the end of the day a phrase that was used earlier it's very important to the gold standard of accuracy and impartiality which the BBC tries to set that the process should be as thorough as that. But if you're reporting, for example, on the Middle East, and know that any report that you deliver is likely to attract or may well attract hundreds or thousands of complaints from Ohio and other places, which we have to consider just as if they'd come from Darlington, and if you know that the process is going to be very elaborate at looking at the quality of your journalism, it can, I think, sometimes be a bit tough on journalists, but I think we have to do it in order to safeguard the standards which I mentioned earlier.
Q. Returning to your governance review, the other main thread that I drew out of it was that there was a need, your reviewer thought, to simplify and speed up some the other procedures, including the editorial procedures which are in place. Is that right?
A. Yes, but simplify so as to make more understandable, not simplify so as to cut corners.
Q. That's
A. Can I just add one point? I do have an instinct, which is not borne out by a wealth of statistical evidence, that we should learn to say "sorry" quicker.
Q. You're anticipating my next question: how are you go going to go about speeding up and simplifying the procedures at the BBC, including the editorial policy decisions, without losing that gold standard which is so important to the BBC?
A. Well, I hope that will be the principal task of the senior executive of the BBC, who will now be charged with dealing with with having overall responsibility for complaints. It's the sort of editorial post which has, I think, been introduced in some newspapers, both in this country and in other countries, beginning, I think, with the New York Times, with varying degrees of success. But I hope that the BBC will do it well.
Q. As well as your governance review, we can also tell from your witness statement that when the hacking scandal broke, you were thinking alike with Mr Thompson, because you tell us that you got in touch with him to ask for an investigation of the BBC in relation to the matters which were affecting the News of the World. You heard my questions to Mr Thompson. What in your mind was the importance of the BBC investigating whether its stable was clean?
A. Well, first of all it's germane that when I asked the Director General whether he would investigate whether the BBC had been involved in any of that sort of systemic criminality which we were reading about in part of the press, he said he'd already asked for the inquiry, which is, I think, a level of his concern for the reputation and practices of the organisation. Secondly, given, I think, the general surprise at the extent of the practice in part of the media, I suspect that both of us wanted to be absolutely clear that what other people seemed to be doing in such prodigious to such a prodigious extent hadn't polluted journalism at the BBC, and I think we also were aware I was certainly conscious of the fact that we would be reporting this on our news channels and better be sure that we were clean ourselves.
Q. You also
A. Can I just add: I don't think that, given the importance of public trust to the BBC and you see that in all the polls that have been done, in the surveys and so on, and you find it reflected anecdotally because of that, I don't think the BBC can afford to make any mistakes in these sort of areas, and when it does, it suffers badly.
Q. Perhaps picking up that theme, you've heard this morning that there is, in fact, no specific ban on phone hacking or the interception of communications in BBC procedures, albeit there are umbrella procedures which would capture those activities. Do you think it would be an improvement of the present systems if there was a specific ban on phone hacking?
A. Well, I do think that the procedures, when you read them, would clearly deter or prevent phone hacking, but I have no doubt at all that partly as a result of this Inquiry we will be obliged, even if we don't want to do so but I can't imagine not wanting to do so, to be absolutely explicit.
LORD JUSTICE LEVESON
I don't think I'll be obliging you to do anything, Lord Barnes
A. No, but I think that the public opinion is going to
LORD JUSTICE LEVESON
Yes, that's different. Mr Barr, is that convenient?
MR BARR
It is.
LORD JUSTICE LEVESON
Very good. I hope it's not inconvenient for 2 o'clock, Lord Patten. (1.03 pm)
