Morning Hearing on 21 November 2011

Bob Dowler , Sally Dowler , Graham Shear and Joan Smith gave statements at this hearing

Hearing Transcript

(10.00 am) Housekeeping LORD JUSTICE LEVESON Yes, Mr Jay. MR JAY There are two matters I'd wish to raise at the outset. First of all, the sequencing of witnesses for today. I think we will be hearing first from the Dowlers, then from Joan Smith, then from Graham Shear and then from Hugh Grant. The second one is a housekeeping matter. It concerns the status of the exhibits which have been released to the core participants on the grounds of confidentiality. It's right, I believe, that you should make a restriction order under Section 19, subsection 2 of the Inquiries Act to protect the confidentiality of those documents so that they do not enter the public domain. LORD JUSTICE LEVESON These are documents that are relevant to the investigation but fit into the category of those documents that I don't wish to have the impact of revictimising those about whom complaints have been made or make complaints. MR JAY Yes. LORD JUSTICE LEVESON Does anybody have any observations about that application? Very good. Then I make those orders. Thank you. Yes, Mr Caplan? MR CAPLAN Sir, just before you begin to hear the evidence of those I think who have been termed the core participant victims, may I just say a few words? We do think it is important that those who are here and those who will watch the proceedings clearly understand the procedure which the Inquiry has laid down as being appropriate for this evidence under the Inquiries Act. We, of course, as have the other core participants, have seen the witness statements of those who are going to be called this week and next week, and it is right to say that in some of them, there is varying degrees of criticism of sections of the press and, on occasions, of individual journalists, and of course that is why they are here to give evidence to you. May I say I'm not including in this the Dowler family or the McCann family in any sense, but we do believe that where criticism is made, especially of individuals, and if it is our belief that that criticism is incorrect, or for whatever reason, false, that common fairness requires that we or any other core participant who are affected ought to be able to put questions to that witness in order to put the record straight or, at the very least, to put the other side. So that everybody understands, however, the procedure that the Inquiry is following, and so far as these witnesses are concerned and this is the procedure that the Inquiry has required we should put questions to Inquiry counsel, Mr Jay, who will then, at his discretion, put those questions, if he thinks they're appropriate, to the witness on our behalf. I have no doubt at all that Mr Jay will do a better job than I would. But, sir, I do not want to hide what is an important concern, and that it is that reputational criticism can be made by these witnesses in what is a televised situation without any opportunity for the object of that criticism to respond directly to questions from the lawyers representing the core participants affected. Therefore, can I just say two things, please. Firstly and I understand your reluctance to entertain such an application if it becomes necessary to correct a matter as a matter of fairness I'm sure Mr Jay will cover, I hope, all that we require, but if it becomes necessary, then I hope you would entertain an application under rule 10, subparagraph 4, provided we notify you of the questions that we would wish to put to a witness. I understand that that would be a position of last resort. Secondly, to make it clear, so far as possible, we will file, where necessary, to obviate the need for that evidence with the Inquiry to correct any matter which we perceive to be important and which needs to be corrected. Just as one illustration of that, we will, for example, file evidence and we'll hear this when Mr Grant gives evidence concerning the way in which Daily Mail journalists covered the announcement of the birth of his daughter. We will file evidence showing what we say the Daily Mail journalists did and explain exactly what happened. That's no disrespect to Mr Grant, who is here good morning. It is simply that we wish to assist the Inquiry in explaining what happened as an illustration and I hope it will be of assistance to you and possibly even to Mr Grant. LORD JUSTICE LEVESON Yes. Well, the position of the Inquiry is comparatively clear. It is abundantly clear, based upon the approach that Sir Michael Morland adopted in Northern Ireland, that it is unusual to permit cross-examination outside the Inquiry team and the challenge to that decision at common law failed in Northern Ireland, I think. MR CAPLAN In certain respect. But if I may just say, there is an overriding duty of fairness under section 17 of the Act and the rules, rule 10(4), do permit an application by a core participant. LORD JUSTICE LEVESON Absolutely, I understand that. The other important feature is to note that although you're at absolute liberty to file whatever evidence you feel is appropriate, and I will want to be balanced and fair, what is under investigation this morning, and indeed throughout the Inquiry, is the conduct and practice of the press, not the conduct and practice of any of the witnesses who are giving evidence. MR CAPLAN I understand that and I hope I'm sure we all hope that the evidence will be limited so far as possible to deal with the general issues. LORD JUSTICE LEVESON Yes. MR CAPLAN It's simply to deal with any reputational criticism that may arise. That's all. LORD JUSTICE LEVESON I understand. This is called a right of reply, which is one of the topics about which some of those who criticise the press complain. That's unfair, Mr Caplan, at this stage of the morning. Let's just see if we can't find the right balance. Thank you very much, I've understood the point. Right. MR JAY We're going to proceed, therefore, with our first witnesses, who are the Dowlers, please. MR BOB DOWLER AND MRS SALLY DOWLER (sworn) LORD JUSTICE LEVESON Please sit down. If at any stage you need a break, don't hesitate to say so. Before we start, can I thank you both for being prepared to come to the Inquiry. You've done so voluntarily and I'm very conscious that it's a strain. I can only sympathise to both of you for the appalling losses that you've suffered and the traumas that you've undergone over many years. So I'm very appreciative to both of you for being prepared to expose yourself further to assist me in the work that I have to do, so thank you very much. MR DOWLER Thank you. Questions from MR JAY MR JAY You are, respectively, Sally and Bob Dowler. I'm not going to ask you to provide your home address. You've provided a professional address. Can I ask you though, please, to confirm the witness statement which has been signed on 3 November. There's a statement of truth at the end of that statement. Do you confirm the truth of that statement? MRS DOWLER Yes. MR DOWLER Yes. MR JAY Mr Sherborne has one or two questions for you and then I will ask some further questions. Questions from MR SHERBORNE MR SHERBORNE With your permission, may I ask a few introductory questions? Good morning. I appreciate you may be nervous. I know your last experience was a difficult one. I'm not going to ask you detailed questions about your statement Mr Jay will do that in a minute but can I begin by asking you: we all know that it was the revelation publicly in July of this year that Milly's phone had been hacked into by people acting on behalf of the News of the World which led to the setting up of this Inquiry. Can I ask you how you feel about that? MR DOWLER I'll answer this one. I think the gravity of what had happened needs to be investigated. I think there's a much bigger picture, obviously, but I think that given that we learnt about those hacking revelations just before the trial for the murder of our daughter, it was extremely important that we understood and people understand exactly what went on in terms of these practices to uncover this information from the hacking situation.
Q. And prior to you discovering about Milly's phone, did you read stories about other people, including well-known people, whose phones had also been hacked into? MR DOWLER Yes. We'd obviously been aware of the Sienna Miller situation and also Gordon Taylor. We certainly followed that in the media and were very much aware that, certainly from the celebrity awareness viewpoint, that was going to be an issue, but of course not realising until we were informed about hacking in our situation that it spread much wider than just celebrity.
Q. How did you feel about the fact that there were other people whose phones had also been hacked? What impact, if anything, did that have on your case? MR DOWLER Well, fundamentally, everybody's entitled to a degree of privacy in their private life, and it's a deep concern that our private life became public, but I think also that other people who are in the public eye, their private life become public as well.
Q. We know that in time you instructed Mark Lewis, the solicitor. Can you just explain how you came to instruct Mr Lewis? MRS DOWLER Well, it was during the trial. Just before the trial we'd found out about Milly's phone being hacked. When we were given that information, it was like terribly difficult to process it because what do you do with that information when it's in your mind? And I was worried about the sort of forthcoming trial, but also aware of what had happened with Sienna Miller and things, and thinking we ought to we ought to get some representation, but I was frightened of doing that because we didn't have any money for that, so I didn't quite know how we were going to do that. Then I found Mark Lewis on the Internet and left a message on his phone and he phoned straight back and said, "Please come and see me."
Q. What was your aim, your objective, in going to see Mr Lewis? MR DOWLER I think very much just to be in a position to respond to what would possibly become quite a public how would we deal with that? Because we'd been given that information but no advice as to what to do with it, but recognising, of course, that that I suppose to use the words quite powerful, quite dynamite information to suddenly be aware of and realising, as has come to pass, that when made public, suddenly everybody got very, very, very excited and very yes, motivated about the whole situation, so
Q. Can I ask you just a question about your legal representation? Did you have the money to pay for legal advice? MRS DOWLER No, we didn't.
Q. So how were you able to pursue a complaint against News International? MRS DOWLER When we went to see Mark, which I have to say it was a really difficult thing to do because it was during the trial and it was like: "We've got to do this, Bob, because we need someone to represent us", and literally dragged ourselves along to that meeting, and he said, "You don't need to worry about the money, Sally. I will represent you come what may", and then actually with regard we were able to use a CFA agreement, otherwise we wouldn't have been able to proceed.
Q. Can I finally ask you this: we know that the News of the World settled your claim in July of this year, and you heard my opening submissions and you heard the opening submissions of the other media representatives. What, if anything, would you like to say to News International now? MR DOWLER I think, given the gravity of what became public, the main knowledge about what had happened about our phone-hacking situation and the circumstances under which it took place, one would sincerely hope that News International and other media organisations would sincerely look very carefully at how they procure, how they obtain information about stories, because obviously the ramifications are far greater than just an obvious story in the press. MRS DOWLER And I think as our daughter Gemma said to Mr Murdoch when we met him: "Use this as an opportunity to put things right in future and to have some decent standards and adhere to them." MR CAPLAN Thank you very much. If you just wait there, Mr Jay will have some further questions. Questions from MR JAY MR JAY It's obviously fitting you should be the Inquiry's first witnesses. I'm going to ask you first of all to deal with paragraph 7 of your witness statement, please. This is the private walk which occurred in May 2002. Do you follow me? MRS DOWLER Yes.
Q. Can I ask you, please, to tell us about that in your own words. You say it wasn't a formally organised walk? MRS DOWLER No.
Q. What was its purpose, please? MRS DOWLER Well, it was seven weeks after Milly had gone missing, so a lot of the sort of initial media hype had died down a little bit, and it was a Thursday and that was the day that she'd gone missing and it was quite a sunny afternoon and she would have come home about 4 o'clock, and I remember calling Bob and thinking actually, he'd gone up to London on that day, into the office, and I said to him: "Why don't you come back to Walton and then I'll meet you there and we'll do that walk back?" Because so many questions are just buzzing around in your head why didn't anyone see her, et cetera, et cetera and it was a very last-minute argument, so it was maybe an hour or two before that I phoned Bob and said, "Look, I want to do this. I'm going to meet you at the station and we'll walk back together."
Q. Yes. MRS DOWLER Previously, there had been a lot of press and things at the station but now it had calmed down a bit and when we actually got there, there was no one there. It was empty.
Q. Yes. MRS DOWLER So simply one of the police officers that I was working with, one of our fellows dropped me at the station. I met Bob and then we just basically quietly retraced her steps and no one was really around, so it was very much like the day she'd actually gone missing, and we put out missing leaflets with her photograph and a telephone number on, and that number had been changed, and I was checking the posters to see if the number if the right poster was up, and as I walked along, I was sort of touching the posters. And we walked back to our house, which is maybe three-quarters of a mile, something like that, and that was on the Thursday, and then on the Sunday, that photograph appeared in the News of the World and I can remember seeing it and I was really cross because we didn't see anyone. They'd obviously taken the picture with some sort of telephoto lens. How on earth did they know we were doing that walk on that day? And it just felt like such an intrusion into a really, really private grief moment, really.
Q. Yes. So it goes without saying you were completely unaware at the time that people were watching you, as it were? MRS DOWLER Yes, absolutely.
Q. We have the article. I'm not going to ask that it be put on the screen, but as you know it's exhibited to your witness statement. We can draw our own inferences as to where the photographer must have been. Some distance, of course, in front of you. MRS DOWLER Yes. I don't know where he would have been to take those pictures. Maybe in a parked car down Rydens Road somewhere. I don't know. MR DOWLER But you see from the picture that we're basically just walking along, completely immersed in the moment, is the honest phrase, I suppose, I would use, and just Sally suddenly saw the poster and decided to check it.
Q. Yes. We see on the second page that they do give the Surrey Police reward, top line, for what its worth. MR DOWLER Yes.
Q. Did you make any complaint about this beyond telephoning the police family liaison officer, do you recall? MRS DOWLER No. No, I just phoned did phone our FLO on that day and had a little bit of a .rant.
Q. Yes. MRS DOWLER And asked, "How did they get this picture?" But in the scheme of things, at the time, more importantly was the fact that Milly was missing.
Q. Yes, of course. MRS DOWLER And that was more mind-consuming.
Q. It wouldn't have entered your mind, presumably, to contact the Press Complaints Commission? MRS DOWLER Not at that time, no. MR DOWLER And we'd agreed that we would do all our press communications through the Surrey Police press office, for obvious reasons, anyway.
Q. In paragraph 10 of your statement it may be Mr Dowler can better deal with this, but I'm in your hands you refer to situations when you were doorstepped by journalists and photographers. Can you tell us a little bit more about that, please? MR DOWLER Certainly. It became quite a regular event for people to knock on the door. We'd established that we wouldn't do any interviews, we'd actually only do everything through the Surrey Police press office, for the simple reason of not wanting to create any media war between a particular publication having an access which they might consider, let's say, exclusive, but certainly it was fine, it was polite, and I think at the end of the day our response was the same, it always has been the same: we won't do and even recently, we've been doorstepped in recent times as well. But I think the thing that was probably quite difficult was that on our own property, I was out the front on our front drive, probably putting something in our recycling bin or something, and suddenly this person just hopped from behind the hedge and approached me. It was just at the moment I remember it specifically because it was the time that the head of the investigation of the Surrey Police team was changed, and he immediately said to me, "What do you think of the head of the investigation being changed?" And I mean, really, it was a sort of, well, what possibly am I going to say? Fortunately, I had the foresight to think: well, actually, I'm not going to say anything, just say I have no comment, and I think I don't know I think he might have introduced which media he was from, but I think something, you know, appeared in the paper probably the next day to say, you know, "Mr Dowler said, 'No comment', or something to that effect, but for the simple reason that obviously, you know, as we said, to try and avoid giving specifics, because once you engage in one question, then there's the next question, and then you're engaged in a discussion and that, I guess, de facto, becomes an interview, doesn't it?
Q. Yes. MRS DOWLER I think, in fact, every time we went out the front door, it's like you had to be on guard because someone might be there and they would come up to you when you're least expecting it, so as you're sort of lifting stuff in and out of the car or something, and then they'll fire a question at you without introducing themselves, and so you have to train yourself not to answer.
Q. Yes. Maybe you feel the pressure of staying from that sort of tactic altogether, doorstepping you. Is that what you feel? MR DOWLER I think it's quite concerning, because I think however polite people are, at the end of the day, you really are afeared to open your front door because you're faced with a question.
Q. Yes. MR DOWLER And however you respond to that question might then lead to a headline of one line or two, and that's obviously difficult to deal with, so I think but we've always tried to be polite and courteous and leave it at that.
Q. Yes. Of course, I have to ask you next about Milly's phone and the voicemail interception. You deal with this at paragraphs 13 to 15 of the witness statement. First of all, in trying to fix this into the chronology, you think this must have been in April or May 2002; is that correct? MRS DOWLER Yes, it was quite soon after she'd gone missing because where she actually was abducted was opposite this building called the Bird's Eye building down by Walton station and there were CCTV cameras on the Bird's Eye building, so everything really focused around these CCTV cameras. So we were asked to go up and have a look at some of the CCTV to see if we thought someone on it was Milly.
Q. Yes. MRS DOWLER And do you want me to tell you about what happened?
Q. Yes. Well, first of all, you tell us that you were phoning in to Milly's voicemail? MRS DOWLER Yes.
Q. Quite regularly, presumably? MRS DOWLER Yes.
Q. To see whether there was anything else there? MRS DOWLER Yes. Of course, all the time we were at first, we were able to leave messages, and then her voicemail became full and then you rang and then you just got the recorded "We are unable to leave messages at the moment".
Q. Right? MRS DOWLER This had gone so I was used to hearing that and we'd gone up to the Bird's Eye building to look at the CCTV and we were sitting downstairs in reception and I rang her phone.
Q. Yes. MRS DOWLER And it clicked through onto her voicemail, so I heard her voice, and it was just like I jumped "She's picked up her voicemails, Bob, she's alive", and I just it was then, really. Look, when we were told about the hacking, that is the first thing I thought.
Q. Yes. So your immediate reaction was to phone Gemma; is that right? MRS DOWLER Gemma, yes, I spoke to Gemma, and then it sort of died down afterwards because you're thinking: is that the only reason it could have happened or what have you, but it was the like I told my friends: "She's picked up her voicemail, she's picked up her voicemail."
Q. That is certainly a reasonable inference. Can you tell us anything about the police reaction when you shared that with them? MRS DOWLER Well, I remember telling all I can remember is that they told us they'd put some credit on her phone because she had a she was very low well, she had no credit on her phone, and yeah, I can only really remember them telling us they'd put some credit on her phone.
Q. Yes, and when you told them that you'd managed to get through to the voicemail message, did that excite any particular reaction from the police? MRS DOWLER I can't really remember that. MR DOWLER I think one of the FLOs was with us, I think, wasn't he, at the Bird's Eye building, but it's unfortunately, I mean, that's nine years ago, for us to remember the details, so I'm sorry
Q. Whether it had an impact on the police investigation is a matter of speculation? MR DOWLER It's something for them, isn't it? Because at the end of the day, it was their investigation.
Q. And then much later on this was shortly before the criminal trial you learnt from the police that the voicemail had been hacked into by the News of the World? MRS DOWLER Yes.
Q. April of this year, I think? MRS DOWLER Yes. MR DOWLER Certainly by Mr Mulcaire or I think specifically that's what we were told.
Q. Yes. What was your immediate reaction to that piece of news? MRS DOWLER Well, we got a call from our FLO to say that the Met Police wanted to see us and to tell us vaguely what it was about. And as soon as I was told it was about phone hacking, literally I didn't sleep for about three nights because you replay everything in your mind and just thinking: "Oh, that makes sense now, that makes sense." And then we went along to the meeting and I said to them about this instance in the Bird's Eye reception and also about walking back from the station were the two things that, at the time, I'd thought: "This is odd. Something untoward is going on."
Q. Yes. So in your mind, you made an immediate connection with the dialling into the voicemail that you've told us about and also a possible connection with the private walk you told us about? MRS DOWLER Yes. Yeah. MR DOWLER I think the thing to remember, of course, is that the walk was nothing to do with Milly's phone, so that could only have come from MRS DOWLER Yeah, that was our home phones or our own mobile phones.
Q. Yes. Thank you for that, and we know for obvious reasons, namely the fact of the criminal trial, that this was information you could not share more widely until the trial had concluded, and we also know that the date of the revelation in the press, I think, was 4 July of this year, so it fits into the chronology. Can I ask you some wider questions? You referred to the press being a double-edged sword. It's obvious, I suppose. You had to engage to some extent in order to assist the police in their inquiries. On the other hand, there was a very important domain which was private. Is there anything else you would like to assist the Inquiry about in relation to the double-edged nature of what you might have had to do at that time? MRS DOWLER Well, I think in essence with our situation, you have to remember we were really, really desperate for some information about Milly, and so the press were in a position to be able to help us and they did get the message out that she was missing and lots of information came in to the police headquarters. But on the other hand, the persistent being asked questions and being doorstepped and everything else that's associated with it and all the letters that you get requesting books, films, interviews MR DOWLER I think the point I made just now is that I follow the media over the years quite a bit more than Sally does, and certainly recognise that it's very important that we would try to be as consistent as we could when dealing with the media and not to actually give any one party a particular position or angle for the very reason of actually not wanting to create another set of issues to deal with, because in fact in the early days, those first six months, of course, we were in a very desperate situation and in fact it it's unprecedented in your normal life for most people. How do you deal with it? How do you deal with these things? So we tried as best we could to be as balanced as we could about it, but recognising, of course, that things are outside of your own control.
Q. Yes. It's plainly well outside your own experience. You had to rely on your own judgment in an entirely unique situation. Did you get any help from you talked about police liaison officers. Presumably they did give you considerable assistance at this time? MRS DOWLER Very much so. The FLOs, yeah, they were brilliant. They really helped us. And Surrey Police press office were co-ordinating things, so they took the majority of the burden off of us.
Q. Yes. MR DOWLER And we chose that route, as well. That was definitely the route we wanted to go.
Q. I'm not going to ask you about the settlement of your civil claim, but could I just ask you about you referred to a meeting with Mr Rupert Murdoch, which I think was probably about the 12th or 13 July. The date isn't going to matter. Presumably that was a difficult meeting for both of you; is that right? When I say "both of you", I mean both of you and for Mr Murdoch? MRS DOWLER Yes, it was a very tense meeting. MR DOWLER Mm.
Q. He made it clear that what had happened was totally unacceptable, didn't he? MRS DOWLER He did, yes. Yes, he was very sincere.
Q. You refer to a letter from the then CEO of the company and a meeting with the Prime Minister, which I don't think it's necessary to go into unless you would like to. Can I ask you, though, both of you, about the section of your statement which deals with the future. You touched on this a little bit, Mr Dowler. This Inquiry is here to consider press culture, practices and ethics, to some extent looking back in time, but it's looking at the present and will look at the future. It's also here to make some recommendations. This is your chance. Is there anything you would like to suggest to Lord Justice Leveson for him to think about at this stage? MR DOWLER I think when we went to see the three party leaders and the Prime Minister, we were asked that question at that time and the problem that Sally and I have we're ordinary people so we have no experience in such a public life situation and certainly no experience from a media control, media involvement situation, so it's always been on our own best judgment as to how we've dealt with these matters. MRS DOWLER I think it was more we wanted the extent of it exposed and then the Inquiry could make the decisions.
Q. Yes. I mean, it appears to the Inquiry that your judgment has been, if I may say so, extremely well exercised throughout in very difficult circumstances and we understand and appreciate that. If you have anything more general which you would invite the Inquiry to think about but if not, there's no problem. We will be thinking MRS DOWLER I think we'll leave that up to you. MR DOWLER I'm sorry, we're not LORD JUSTICE LEVESON How very generous of you. Thank you. MR DOWLER Well. MR JAY I have no further questions for you, but I'm extremely grateful for your evidence and the way in which you've kindly and frankly answered my questions. Thank you very much. LORD JUSTICE LEVESON Thank you very much. Mr Sherborne, I think you're entitled to make an application as you're acting for the Dowlers, but is there any other question that you want to ask? MR SHERBORNE I have no further questions. LORD JUSTICE LEVESON Thank you very much indeed. Thank you very much for coming. MR JAY May I break for five minutes before we call our next witness? LORD JUSTICE LEVESON Yes, certainly. Five minutes. (10.38 am) (A short break) (10.45 am) LORD JUSTICE LEVESON Right. Yes. MRS PATRY HOSKINS Good morning. I'm going to call the next witness, Ms Smith. MS JOAN ALISON SMITH (affirmed) LORD JUSTICE LEVESON Ms Smith, I'll say to you as I've said before. Thank you very much indeed for agreeing to give evidence. This was a voluntary activity and I'm conscious that it exposes personal matters that affect you in the public domain, which is one of the things you're concerned about, so I'm very grateful to you.
A. Thank you. Questions from MRS PATRY HOSKINS MRS PATRY HOSKINS Good morning, Ms Smith.
A. Good morning.
Q. Could I ask you to state your full name?
A. Joan Alison Smith.
Q. Thank you. You provided a witness statement to this Inquiry and we can see that, I think, on the big screen. Before I ask you any detailed questions about your statement, please, can I ask you to confirm that the contents of your witness statement are true to the best of your knowledge and brief?
A. Yes.
Q. On that basis, can we start with who you are. Those who have the witness statement in front of them are meant to be looking at paragraphs 4 to 7, but for those who don't have the statement, could you tell us a little about who you are and some brief details of your career history, please?
A. I've been a journalist for more than 30 years. I started my career in national newspapers on the Sunday Times. I worked for the Sunday Times insight team doing investigative journalism, doing stories like the Iranian embassy siege, the Yorkshire Ripper murders and so on. After that, I decided to go freelance and I've written for a lot of national newspapers: the Guardian, both the Independents, mainly as a columnist, the Evening Standard too, and I also write books. I'm the author of six novels published novels and I also write feminist books and my most famous book is about women-hating, called "Mysogynies", and I also wrote for Penguin a book about secular morality. And then I do my human rights work. For from 2000 to 2004, I chaired the English PEN Writers In Prison Committee, which was set up to promote freedom of expression around the world and to look after imprisoned writers and their families. So at any one time, we were looking after about 50 writers, academics, poets and so on in places like Syria, China, trying to make representations on their behalf. Latterly, we started sending people to observe their trials if they were in court. I in 2005, I went and observed the trial of Orhan Pamuk in Istanbul when he was on trying for insulting Turkish identity and then latterly, in 2008, I got involved in a literacy project in Sierra Leone, collecting books in this country. I did that with the Times. They gave me the space to launch an appeal for children's books when I came back from Freetown, and we were able to collect about a quarter of a million/300,000 children's books, which we shipped out to Sierra Leone to set up school libraries in between 1,500 and 2,500 books in different schools. So I do both those things.
Q. Thank you very much. Can I ask you about one specific part of your career history, please, the one that you deal with, for everyone who has the statement, at the end of paragraph 11 of your statement. It's 23461 on the screen. This is work that you do or you did with the human rights policy department of the Foreign Office, campaigning for freedom of expression for journalists around the world. Can you tell us very briefly about that work?
A. Robin Cook was a friend of mine and in 2001, just before the election, he asked me if I would share his last big speech as foreign secretary well, we didn't know it was his last big speech, obviously. And afterwards, at a he wanted to talk about how he had put into action the ethical dimension of his foreign policy, which had been a very famous statement that he'd made after he became foreign secretary in 1997, and at a lunch afterwards, I met both his special adviser, Michael Williams, and the head of the human rights policy department, and they said to me: "We want more involvement with NGOs", and PEN obviously has NGO status, and they suggested that if I was thinking of sending someone to observe a trial in somewhere like Belarus, which is actually quite a frightening thing to do, to go to court somewhere like that, that we could liaise with the Foreign Office and they would put us in touch with ambassadors and high commissioners. And we set up quite an effective system, so that if somebody was I remember there was a trial in Belarus in particular. I asked someone from the PEN committee to go and observe the trial and they got a lot of help from the British ambassador in Minsk, which was very fortunate because actually there was a very unpleasant scene and the court was cleared by the local version of the KGB. We also did things like there are bipartite talks every year on the future of Turkey's application to June the EU and we did a lot of monitoring of human rights in Turkey and we would take part in those talks at the foreign office each year and give lists of things like all the books that had been banned in Turkey in the last year and whether it was going up or down and whether journalists were still being imprisoned and so on.
Q. Obviously a lot of interesting work here on freedom of expression issues. Tell us briefly, how important do you consider freedom of expression for journalists to be?
A. Oh, I think it's absolutely essential. I mean the reason I got involved in this work, this voluntary work, is that it seems to me that a free press is absolutely a cornerstone, sine qua non, of civil society. If you don't have a free press which is able to call politicians and big companies and corporations, multinational corporations, all sorts of people to account, then I think you have real problems. So I've always felt that I was very lucky to be able to pursue a journalistic career in a country where we did have a free press because I'm very aware of what happens to journalists in countries where there isn't one.
Q. You've told us bit about the interesting work you do but can I ask you this: do you consider yourself to be a celebrity?
A. Not in the least. I'm a very minor public figure, in the sense that I write books and increasingly people who write books are expected to turn up at literary festivals and talk about where we get our ideas from and things like that, but I'm a writer. I can speak in public and I have, but I don't think that I'm somebody whose private life would be of much interest to the reading public. I mean, I'm sure that apart from the papers I write for and people who maybe like my novels, most newspaper readers would be quite baffled to know who I was.
Q. Moving on then to a brief question about your personal life I don't really want to ask about any aspect of your personal life save one. You say at paragraph 8 of your statement that for a number of years you were in a relationship with Dennis MacShane, who's the MP for Rotherham and Foreign Minister for Europe. Is that correct?
A. Yes.
Q. Can I ask you this it's probably an indelicate question, but was there anything illegitimate or secretive about that relationship?
A. Dennis and I were he was my partner from 2003 to 2010, and I was always quite open about it. I mean, just before this I first appear in Mr Mulcaire's notes, we had been to a conference in Venice that Dennis was speaking at in early 2004 and I remember that we had dinner with the former Prime Ministers of Italy and Sweden. That doesn't seem to me a very secretive way to conduct a relationship.
Q. Before I move off your personal life, I just want to ask you this: you say at paragraph 27 of your witness statement that you rarely mention your private life when you write your columns and so on. Can you tell me whether you ever have discussed your personal and private life in your columns, and if so, what sort of thing would you typically say?
A. Very rarely. I mean, I remember once Dennis rang me and said that he and three friends had just got to the summit of Mont Blanc that morning and he was excited about it, and I was writing, as it happened, a column for the Independent that day, and I was talking about changes the way in which ageing has changed and how people of my generation do things at ages that my parents would never have dreamed of and I just mentioned that. But it was just a sort of, you know, half sentence about my partner rang to say he'd climbed Mont Blanc with three friends who were all in their late 50s. That was all.
Q. You mentioned a moment ago that you had appeared in the now famous Mulcaire notebooks, so let me ask you a little bit about your experience of phone hacking, if I can. When did you first become aware that your voicemails might have been accessed in that way?
A. In April this year when I got an email from a detective at Operation Weeting.
Q. Can you tell us a bit about what happened and what you did?
A. I arranged to I got in touch with the detective and wrote back to his email and said, "I gather you're trying to get in touch with me and here are all my details", including my home address and my home telephone number and my mobile phone, and he emailed straight back and said, "Oh right, those are all the details that we have in Mr Mulcaire's notebook." So he invited me to a meeting and I went to my lawyer, Beinman(?), Tamsin Alin(?) organised a meeting and two detectives came, and I sat next to one of them and Tamsin sat across the table with another detective, and there's a kind of ceremonial unveiling of the notes and you're asked I'm sure lots of other people have gone through this now. You're asked, "We're going to show you some pages photocopied from Mr Mulcaire's notebook. Can you tell us if you if you recognise anything?" And of course, the very first page is my name, address, all my phone numbers and so on, and as the pages go by, Mr Mulcaire made a note of the fact that I was writing for both the Independent and the Times, and what seemed significant to me and what I found profoundly shocking was that he seems to have been a very obsessive note-taker and as well as writing the name in the corner of the person at the News of the World he was dealing, he also made a note of dates, and my name and address and details appear in Mr Mulcaire's notes for the first time on 5 May 2004, and that's approximately six weeks after Dennis' eldest daughter was killed in a skydiving accident in Australia, which had attracted a huge amount of publicity, and I was incredibly shocked that in that period when Dennis was bereaved and, as you can imagine, it's not an easy time for anybody when a 24-year-old girl has just died in such circumstances that the News of the World had been interested enough in both of us to ask Mr Mulcaire to listen to our voicemails.
Q. Can you tell us what your reaction was when you saw this notebook and you found out in all likelihood you had had your voicemails accessed at this time?
A. I'm amazed by how shocked I was because in my journalistic life, I've had one or two bad experiences, you know. I was caught in a riot in Sierra Leone last year which was pretty unpleasant and I do now recognise the impact of shock, and on that occasion I didn't because I was just in a daze. I saw all these notes and Mr Mulcaire had obviously found out that he made a note that we were going to Spain. I was going to a PEN conference to meet other people, other writers who worked for freedom of expression. I was going to Barcelona and Dennis was actually coming out the following weekend and he was going to make a speech in Spain and we were arranging to meet up, and I was amazed by the detail of notes that Mr Mulcaire had made about flight times and a note saying "her to him", so it appeared that he'd been getting information from my voicemail. And the police the police said to me: "Is there any way that Mr Mulcaire could have got this information legitimately?" And given that it was about two months after the Atocha bombings in Madrid when there was a very high level of security around government ministers, it did seem unlikely that he so anyway, to answer your question, I remember leaving that meeting and I had to go to a meeting in the City and I my mind was just buzzing. And again, as the Dowlers were saying, you suddenly start thinking: "Oh, did that happen? Does this is explain something?" And I arrived at my meeting and I was slightly early and went up to the boardroom and the managing director's secretary came in and said, "Are you all right? You look completely white", and got me a cup of tea and I realised afterwards it was just shock, complete shock. I had no idea that was happening.
Q. Can I ask something else about that period? You said that you were writing columns during that period. What sorts of things were you writing about?
A. I was writing a lot for the Times and I was writing columns for the Times and they would ask me to do additional things like Vivien Westwood was having a huge retrospective of her work at the V&A and they asked me to go and do a cover feature. So I interviewed Vivien Westwood and my name was on the cover of T2. I was also writing columns and I think it was on 8 April 2004
Q. I think we have that document. It was handed out this morning to everyone.
A. Yes. I wrote a column this column headed "Celebrities or pagan deities". I think there had been a huge amount of interest in the marriage of the Beckhams at that point and they had been doing what celebrities often do, which is try to kind of negotiate their way through a personal crisis while also not alienating the media, and so I wrote a column saying and I suppose what was in the back of my mind was that the intrusive reporting of the death of Dennis' daughter a month before. I wrote a column saying that I think that people make unwise decision, they think that celebrities think that they can kind of control the media, you know, that they can keep them friendly, and actually the appetite for stories and personal life is so remorseless that they lose control of the story. So I was saying in this piece that I found it very disturbing that we've gone from a situation where, you know, the idea of privacy used to be a shield for hypocrisy, so people used to do terrible things in their private lives and pretend that they were upstanding, fine Christian gentlemen and so on. We've moved from that, which was not a great thing, to a situation where people have almost no privacy at all and I was saying in this column in the Times that I found it incredibly shocking that no matter what happens to people, whether it's a bereavement or a marital problem, you're apparently expected to deal with this completely in the public eye and be open with the media. And I wrote this column in the Times and four weeks later the News of the World asked Mr Mulcaire to spy on me.
Q. What's the link in your mind?
A. Um
Q. If any.
A. I'm not sure there is one. I think I think that from what I've been able to understand about Mr Mulcaire's activities and the number of names in his notebooks, I think it was it has been said that the spying was on an industrial scale and I think almost anybody this could happen to almost anybody. That's the astonishing thing, that you don't have to be an incredibly famous actor or actress. You don't even you just have be tangentially, you know, come into the orbit of somebody who is well-known, and I think probably that there is such a gap between the cultures of the two parts of the press, the kind of what I think of as the sort of serious press that I write for and the values of the tabloid press, insofar as they have any, that it wouldn't even occur to them to look at what I was writing and actually think about the arguments.
Q. You've now had a few months to digest the information that you may have had your voicemails illegally accessed in this way. How do you feel about that now? You've told us a bit about how you felt about having your phone accessed at the time when Mr MacShane lost his daughter. Have you had time to reflect? How do you feel about it now?
A. I do think there is a sort of wider lesson to be drawn from it, which I think I mentioned this at one of Lord Justice Leveson's seminars, that it seems to me that tabloid culture is so remorseless, its appetite is so unable to be filled, that the people involved have lost any sense that they're dealing with human beings. When I was doing investigative journalism, I quite often had to go and knock on the door of somebody who was bereaved, but it wasn't because I wanted to know how it felt. It was because I was writing about, you know, say, the Yorkshire Ripper murders. I interviewed three of the women who had been attacked by him and survived. There was always a sort of purpose which I could explain and say, "You may not want to talk to me. If you don't want to talk to me, I'll go away." Actually, nobody did say go away. But I think this is very different. This is just everything has become a story. We're all caricatures. I've said this in my writing. We're all I think to the tabloid press, we are just two dimensional. We're just fodder for stories.
Q. Can I ask you to turn to paragraph 25 of your statement onwards, where you dealing with press conduct more generally. You explain that a number of articles have been written about you over the years, including as recently as December last year. These articles tended to be, we've seen from them, about your relationship with Mr MacShane. You say that as recently as December 2010, they wrote an article about that relationship, despite the fact that it had ended some months earlier, as I understand it. Are such articles appropriate?
A. I think it it depends entirely on the context and it seems to me that there is a difference between somebody who is in the public eye, like a politician, say, who makes, you know, what I would call traditional family values a part of his or her political platform. If somebody is saying the sanctity of marriage is very important and people shouldn't have cohabitational relationships or anything like that and they then kind of pose with their family in their election literature and so on, then I think maybe that's a different situation. But the point is that neither Dennis nor I ever kind of courted the press and invited them into our lives. Quite the opposite. On each of the occasions and this has gone on at a low level for about 20 years. I've had phonecalls and been approached by journalists and they always come in this chummy kind of way and say, "Oh, can you tell us about your relationship with so-and-so?" And I always say to them: "I'm a journalist. If I wanted to put my private life in the public domain, I could do it myself and I'd get the facts right. So why would I need you as an intermediary?" Because I always try to be fairly polite but and I also think you know, in December when I got this call, it was only a few months after I had left Dennis and I I don't think that the journalists who contact you realise that or care that you're in quite a vulnerable state, you know, that you're still processing all the feelings of a long relationship ending and it's actually not very nice. I was in my gym. I actually had just been running and I'd just removed all my clothes and my phone rang and I got this person from the Mail saying, you know: "Oh, Joan, we gather you and Dennis are no longer an item", and I actually thought: what a wonderful metaphor this is. You know, I'm naked before the tabloid press, and why should I be?
Q. Can I ask you this? Some people might say that the press are entitled to write about the personal relationships of public figures, such as MPs or ministers, regardless of whether they make statements about the virtues of family life and so on and so forth. What would you say to that?
A. I think it's the confusion of the old confusion of not understanding the difference between what interests the public and what's in the public interest. I think that private life has become a commodity and there are lots and lots of I mean, I wrote a whole book about secular ethics and morality and I think there are adults lead their lives in lots of different ways now. For example, I think that the legalisation of civil partnerships for gay and lesbian people is a great advance, and I also think that marriage should be available to them, so I think adults lead their lives in quite a sophisticated way now and they don't use one model, and yet the tabloid press seems to sort of live in a kind of 1950s world where everyone's supposed to get married, stay married, and if anything happens outside that, then it's a story.
Q. Can I ask you about two articles you referred to in your statement. The first is an article from the Mail on Sunday on 19 June 2005. This is an article which you should have in your exhibits. The headline is "Blair's secretly divorced Mr Europe and the feminist who believes marriage is redundant". Let's just deal, first of all, with that one. That's obviously the one that was written confirming that your relationship was happening. "Blair's secretly divorced Mr Europe" was Mr MacShane secretly divorced?
A. I didn't know you could be secretly divorced. I thought you had to go to court and that it was listed and so on. I think there is a quite interesting confusion there between secret and private. I think Dennis probably I don't want to speak for him, but I think he probably regarded his divorce as a private matter and didn't go around button-holing journalists and saying, "Oh, did you know, I just got divorced", but I can't see how it was secret.
Q. The other article is the article you just mentioned, the one where you were contacted whilst you were in the gym and asked about your relationship, which had by then ended. Can I ask you this question: did you complain about either of those articles at the time?
A. No, it never even crossed my mind.
Q. Why did it not cross your mind?
A. Oh, because I I've seen too many versions of press regulation in this country, the Press Council and then the current PCC, and I don't think that they are adequate bodies to deal with this kind of problem, and by the time by the time you complain to them, the article's out there anyway and all your friends have read it, so you're not going to get much in the way of redress.
Q. I have been asked to put one other question to you, and it's about an article you wrote in the Evening Standard on 5 December 2001. I hope there's a copy in front of you and I think it's been handed out this morning to those who are present here.
A. Yes.
Q. This appears to be I'll paraphrase it an article that you wrote in 2001 about Elizabeth Hurley and her relationship with a gentleman called Steve Bing. I'm not going to paraphrase the entire thing but you obviously discuss the issue that was occurring between the two parties at that time and set out at the end some views. I've been asked to ask you this: you wrote about Elizabeth Hurley and Steve Bing. You wrote about their private life. If, as you say, the tabloids have become overzealous about reporting on people's private lives, why do you yourself write articles about celebrities' private lives?
A. Because I've been writing, since the 1990s, about the mistake I think that celebrities make of putting too much of their private life in the public domain. And of course, I didn't doorstep them, I didn't ring them up, I didn't ask them about their private life. They had put that in the public domain. If you read the article, what I'm saying in it is this is a dangerous thing to do. I mean, I've said the same thing about the late Princess Diana. It goes back to something I was saying earlier, that people think they can put their private life in the public domain and still control what's said about them. What worries me is that given the underlying misogyny of the tabloids that somebody like at the time, Elizabeth Hurley was pregnant and I thought that she was in a very vulnerable state and there's such a kind of underlying misogyny in the media that I thought it was actually quite a dangerous track she was on. If you look, you will see that I talk about the kind of underlying unease that there is in our culture of women who are beautiful and who base their careers on their appearance, and the danger that they lose their reputation, to use an old-fashioned word, and so I'm always incredibly happy when I get a chance to smuggle feminist ideas into the popular press.
Q. Thank you very much indeed. A few final questions. You've explained in your statement that you have considerable experience fighting for press freedom across the world. You've told us about that. In light of your experience, can I ask you this: you don't deal with it in your statement but I want to know whether you have any views on the current system of regulation. Does it work and do you have any views on what you would like to propose?
A. No, I don't think it does work. I'm very opposed to any idea of state regulation and I'm completely opposed to the idea of licensing of journalists. I think broadly there are two things that need to happen. One is about regulation, the other is about culture. In terms of regulation, I think that there needs to be a kind of successor body to the PCC which isn't dominated by editors, which has more representation from outside. I think that there ought to be things like I think it ought to be if if newspapers don't take part in it, then I think they should lose their VAT exemption. So there should be a sort of carrot and a stick for them taking part in it. I think that there ought to be a much faster right of reply. I think it should also take in mediation in other situations like, you know, where libel might be involved and so on. I think it needs to be a much more complex and capable body. But on top of that, I think what needs to happen is a change in culture, and I think that we do have a tabloid culture which I think is almost infantile in its attitude to sex and private life. My impression is that tabloid hacks go around like children who have just discovered the astonishing information that their parents had sex and they can't resist peeking around the door and hope that they might see it, and the rest of us actually get on and live our lives, and I think that obsession with sex and private life has become remorseless and pitiless in terms of what it does to not just celebrities and crime victims, but just ordinary people.
Q. Thank you very much. Is there anything that you would like to add? I don't have any more questions.
A. I don't think so. Questions from LORD JUSTICE LEVESON LORD JUSTICE LEVESON I have a couple. You've identified on a number of occasions the ethics of what you've called the tabloid press, but is there or should there be any difference to the ethical considerations which are put into the work of reporters by section of the media?
A. No. I don't think there should, and I think that's a real problem. When I first started out as a journalist, I wasn't particularly aware of any codes of ethics, but I knew why I'd become a journalist. I mean, you know, in a kind of young, idealistic way, I wanted to change the world, and I thought that at times it might be necessary to break the law. I mean, during the Yorkshire Ripper investigation, I was threatened with an Official Secrets Act prosecution, which didn't actually happen, but I think the two things have diverged much too far, and it should be possible to have, you know, a vibrant tabloid press which does the kind of things that, say, the Daily Mirror did a few decades ago when the tabloids saw themselves as crusading papers, but I think that's not something they see themselves as doing particularly any more, so there is a separation which I think is very damaging. A lot of the time people like me who write for what I was talking about earlier as the serious or the broadsheet press, I feel like a different breed from the ethics the people who work on tabloid papers. LORD JUSTICE LEVESON The second question is this: you've seen the material the police assembled from the Mulcaire notebooks. Do you have any sense of whether you were being targeted because of you or because you were adjunct to Mr MacShane?
A. I think the latter. My kind of guess is that his daughter's death made his profile much, much higher and so they got interested in him, and once they got interested in him, they got interested in me, so I suppose I was kind of collateral damage. LORD JUSTICE LEVESON Okay. Thank you. Thank you very much. MRS PATRY HOSKINS Thank you very much indeed. Sir, I don't know if we need a short break before the next witness just to allow this witness LORD JUSTICE LEVESON Yes, I think that's sensible. I'm perfectly content just to let people have a break as and when, and I'll say the same to witnesses who are coming. This is not always an entirely pleasant ordeal. Thank you. (11.16 am) (A short break) (11.22 am) MR JAY The next witness is Mr Graham Shear, please. MR GRAHAM JULIAN SHEAR (sworn) Questions from MR JAY MR JAY Mr Shear, your full name, please.
A. Graham Julian Shear.
Q. Thank you very much. You too have provided a witness statement which the Inquiry has seen. It is dated 8 November 2011. There's a statement of truth at the end of that statement. Do you confirm the truth of that statement?
A. I do.
Q. Thank you very much. First of all, I'm going to ask you please to tell us a little about yourself, Mr Shear.
A. I'm a solicitor and partner at Berwin Leighton Paisner, which is an international law firm based in the City of London. I qualified in 1989. I practised initially commercial law and then became a commercial litigator and I am still today a commercial litigator. I have a very broad and wide-ranging commercial litigation practice with an area of specialism in both sports and media work. The first major case that I handled that brought me into, I suppose, close contact with the media was when I acted for Robbie Williams in the break-up of Take That in 1995. During the latter part of the 1990s and into or to the present day, I have acted for a broad spectrum of the actors and actresses from the high profile acting world, for sportsmen, sportswomen, especially Premier League footballers, for celebrities, for politicians, for a very broad range of those who could become or be of interest to the media.
Q. And I think it's right that you are a claimant in the voicemail interception litigation which is in the Chancery Division to be heard by Mr Justice Vos in January of next year?
A. That's correct.
Q. So you will understand that we cannot fairly discuss the merits of your individual case
A. Understood.
Q. as opposed to the fact of your individual case. Your statement covers matters of opinion and hearsay evidence on the one hand, but also direct evidence on the other, and I'm going to deal first with the direct evidence, which probably starts at paragraph 28, please. You refer to the one incident when you arranged to meet a client, who of course you are not going to name, in the middle of a high profile crisis at a secret location in Oxfordshire, and you were followed by a reporter or photographer.
A. Yes. Over the years, I've acted on some extremely high-profile cases, and it is a fact that I've become quite well-known by those members of the press who are interested in those cases, and that they would often camp outside my office. Therefore if I wanted to have or the client needed to have a private meeting, we would often arrange to do it somewhere other than at my office.
Q. Yes?
A. On this particular occasion, the subject matter was extremely high profile and the whereabouts of the person concerned were of interest to the media generally.
Q. Yes.
A. Often because and in this case I'm sure it was the case because the picture was the thing that they wanted to publish. They wanted the current picture.
Q. Yes.
A. I spoke with the client, who was quite a long way away from his normal residence, and we arranged for a meeting place in the Oxfordshire countryside at a hotel. I have absolutely no idea who followed me. The likelihood is it was probably a member of the paparazzi or somebody who was given the task by one of the newspapers or general media concerned, but I was followed on that trip. Unfortunately for the person who was following me, I think they got lost somewhere behind me on the journey so, as I say, I have no idea who the actual person given the task was.
Q. Then you say in paragraph 29 this is before the phone hacking scandal broke, as it were that clients often said to you that they felt that the press were monitoring their electronic communications. How often did this happen, these fears being expressed?
A. I would say very regularly. Certainly in the period from about, I suppose, 2004, 2005 onwards, clients began to believe that coincidences were being replaced by more likely interception of some form or another. I recall quite clearly clients becoming irritated or frustrated and suspicious that private information was finding its way into the popular media, and they identifies this with you know, stray facts that they knew were only privy to one or two people were being published. It caused them to ask questions not only of their family and friends but even of me. I recall it quite clearly. Then it became so sort of continuous that I suppose the suspicion that was directed at those that could have leaked it began to become more focused in their own minds about whether or not this information was being obtained by surveillance and, you know, for a variety of reasons, those that I acted for, some more than others, became more used to changing their mobile telephone numbers, would change them two or three times a year, and that was a common way for people to, I suppose, give themselves some confidence that perhaps there was a way that they although they had no actual evidence or basis other than their own suspicion, but could prevent easy access to information about them.
Q. Yes. You refer to a specific incident in early 2008. Can you tell us a little bit more about that, please? This is paragraph 30 of your statement.
A. Yes. As I say, I've acted on a variety of high-profile cases, and once again, this was an extremely high profile matter where there were two participant or clients involved and the press had different but equally intensive interest in both of them. There was obviously a connection between them. The increase in interest had got to a point of almost fevered activity, and their house had been surrounded by the press for several days. It was because of events then occurring and concern over events that could occur that they needed to seek advice from me, both as a lawyer and also some common sense advice, hopefully as well. LORD JUSTICE LEVESON Is there a difference?
A. Sorry? Occasionally occasionally, the clients need to be told the realities of what can occur as well as the legal advice of the circumstances in which they find themselves. Hopefully, I provide a blend of both. And they wanted to come and see me and we knew that if I went to them, then that would automatically I suppose not just accelerate but heighten interest, and if they came to my office, once again that would become an obvious point of focus for the media and a media scrum would develop. The idea was and it only arose literally an hour or so before the meeting was I suggested to them that if they could get out of their house, that they should come to my house, because the media didn't know where I lived, and they thought that was a pretty good idea and they lived out in the country and they felt that if there was anybody who was following them, that they could probably lose them in traffic or find some way to make it to my home. I recall very clearly the client saying, "Right, we've left. Send me a text" in fact, I think he said, "Send me a text", and I'd already left a voicemail message for him of my home address and details of how to get there, because he obviously needed to put it into his Satnav and also I wanted to explain to him as to which way was probably best for him coming from where he lived or where they lived. I remember very clearly being sort of at my front door and sort of looking out because I wanted to be there for when they arrived and I had space in my drive for them to park their car, and I mean, I was quite flabbergasted when about, I suppose, several minutes before they arrived, two cars turned up with four or five people in each car, that preceded them, and sort of parked sort of at one end of my street and one a little further down, to then have, a few minutes later, as I say, the clients come up. So it was absolutely clear to me that the paps or media concerned were well aware of where they were going to, and yet only I was privy to that information because I'd left the message and sent the text to the clients and only they were privy to it. So it was quite an extraordinary event, which was followed by, obviously, quite intensive interest in what was happening inside my house for the rest of that day and a media scrum outside for many hours.
Q. Yes. Of course, everything that was happening within your house was protected by legal professional privilege, it goes without saying.
A. Yes, it was. It was a it was it was a private time not only for the clients so far as circumstances that related to them, but it was also a matter for them to seek and obtain legal advice, which is obviously professionally privileged, legal professional privilege.
Q. Of course. You were so concerned that you tell us in paragraph 32 you wrote specifically to the Information Commissioner's office and to the Metropolitan Police, and you give the dates 2008, 2009 listing your clients, and indeed your own name was on the list, with a general enquiry in relation to phone hacking. You say at the end of paragraph 32 the response from the police and the Information Commissioner was negative. Are you saying by that that they didn't reply to your letter or are you saying that by that they did reply and say that you and your clients were not the subject of phone hacking?
A. Well, I became interested in the development of the information that came out of the various criminal trials that had taken place, but I asked the clients, I suppose in around about 2007, would they like to take matters forward. By 2008, a number of them had indicated that they did. Some didn't, actually. Some preferred or felt that they could suffer recrimination or further interest by the media by pursuing an action and decided that they actively didn't want to pursue it. So as you say, or as I have said, in around about 2008, 2009, I sent a long list of clients' names, at their request, to both the police and to the Information Commissioner. I included my name on it as just a it was actually a suggestion of one of my partners that I may be collaterally interested in to them and could have been subject. So when I received the response and I did receive a response from both the Information Commissioner and from the Metropolitan Police the responses were specifically: no, no information had been found on any of the names contained on the list. I reported back to the clients and said no information, and at the time I recall thinking: well, there's two circumstances. Either there were all of the data and evidence had been collated and reviewed and no names had been found, or they hadn't finished the review, and the third option was that actually not all of that evidence which related to misconduct by the News of the World had actually been retained and considered. But I reported back to the clients and some of them were I suppose felt that it was unlikely that they had not been the subject of some form of unlawful surveillance, and others were actually very pleased that their names didn't appear. It was with some surprise that in the early part of this year it was about the end of January, February that I was contacted by officers from Operation Weeting who asked to come see me to talk to me about a number of my clients who whose names did appear in the evidence that had been reconsidered or reviewed by Operation Weeting, and they came to see me and started to go through the process.
Q. Yes, and were you shown relevant pages from the Mulcaire note book which related to you?
A. I was. Actually, it's become almost a regular event. A specific officer was assigned Michelle Roycroft(?) was assigned to me and to my clients, and I was shown the information that related to my name and the detail of that, and it jumped out of the page at me, actually, although it wasn't quite as specific as I now know in relation to other clients, but I immediately recognised the contents of voicemail messages that had been left for me and conversations that had followed those messages. They were slightly cryptic but the detail was very clear and it related to information and advice that I'd given to a client and to others who were advising him in relation to a case where I was acting for that client on a regulatory matter.
Q. I think News International will want me to say, although I'm not going to contradict anything you've just said, that what you've just said is or may be an issue in the civil proceedings.
A. I understand that, and obviously I've spoken to or I'm aware that those that left the messages for me also recall what was said at that time as well, but I appreciate that it's in contest. LORD JUSTICE LEVESON Let me just understand that. In relation to the advice that you had given, are you saying that was left on a voicemail message?
A. No. I was actually in the hearing at the time, and I the way in which it worked was that I would leave messages for those who were representing my client and they left messages for me, and they also received contact from third parties in this case, it was actually from a journalist and they left a very detailed message for me about what the journalist LORD JUSTICE LEVESON So it's all messages?
A. It's all messages and journalists left messages for me as well. So yes, it's messages to and from. MR JAY You refer specifically to one incident in paragraph 36 advising a footballer in relation to regulatory proceedings.
A. Yes. That's to what it relates.
Q. Thank you. May I move back in your statement now, please, Mr Shear, and this is you're dealing with your opinions. You express a general opinion about tabloid conduct under the rubric which mentions paragraph 4 and the commercial pressures. In your own words, please, what are those pressures operating at the moment?
A. I believe it's a business model that's become almost dependent and infatuated with sensationalist and titillating stories, to the point where the facility that and this is just my opinion, as I say that phone hacking or unlawful surveillance provided allowed those that were utilising it and reviewing the information to not only build their stories but to pad them out with detail, and this coincided with the financial benefit that a newspaper could have from providing a diet of easily digestible, sensationalist sort of fodder on a regular basis. It's been a progression of sort of fairly sort of, I suppose, privacy-invading but interesting to a section of the public intrusion into the private lives of the rich and famous, powerful or others that has kind of created this sort of self-generating process where people want to see or hear of the next event.
Q. Yes.
A. So that's that's what I've seen, that's how I've seen it develop. It certainly was not quite as prevalent in the same sort of guise in the mid-1990s. I think it became more organised and more orchestrated as we sort of turned into the early part of 2000. Certainly the News of the World was out in front as the most effective story-gatherer, and certainly quite a bit of daylight appeared between News of the World and the other papers with whom they competed. I think that the types of surveillance that were being undertaken are unlikely to have been isolated to one newspaper, purely because of the movement of journalists between the different newspapers. I mean, there aren't that many newspapers as employers out there who would be available for the journalists to work for, and it's I was certainly aware of significant movement in the early part early/mid part of the 2000s, I suppose from 2003 to 2005, of journalists from some newspaper groups specifically to the News of the World.
Q. One theme that the Inquiry has received, it came through the seminars but also in evidence which has come in from the press, is that the model you're giving us is entirely incorrect, that whereas it might have been true to some extent in the 1980s and early 1990s, the effect of the PCC is to improve press behaviour and therefore you're giving us a stereotypical view, no doubt bona fide, they would say, but it's completely wrong. Do you want to comment on that?
A. I don't accept that at all, actually. I think that the press are extremely adept at identifying and calculating opportunities and then exploiting them, whether it be from chequebook journalism and the persuasion of young girls to sell their stories on a sort of regular basis, all the way through to identifying which stories to alert the target of that relates to private information pre-publication and which stories to leave to the potential risk of post-publication damages. In that sense, the PCC is certainly no match for that kind of organised and focused financial calculation. I think the PCC as a body, although there are areas and I'll come back to them there are areas where I think they're effective, generally speaking, the PCC, as I perceive them, their role is one of mediator. They're not a regulator, they have no power to investigate and I think that without being empowered and having the teeth to appropriately investigate and to regulate the members of the media, they're an ineffective body. It doesn't just come down to investigation and regulation. I think there's also an issue here of training, and where one has a sort of a systemic loss or dilution of ethics to the extent that we've seen at the News of the World and as I say, I don't believe that's really isolated to just that paper I think one has to question the extent to which the journalists have been trained about the requirements upon them and the obligations upon them and their employers to act ethically. I think that an element that should also be introduced into any body that replaces the PCC or any enhancement to the PCC's powers is a requirement for appropriate training or ongoing training for the journalist to enhance the ethical conduct. So far as the one area where I do think the PCC have been effective is that they have provided an anti-harassment phone line and I think that is quite an effective facility, and I myself have actually, on occasion, recommended that clients that were concerned about doorstepping utilise that helpline, and I know they've done a good job with that. But I'm afraid so far as broader regulation or investigation is concerned, the PCC, today and yesterday, is certainly no match for the larger and effective media organisations to whom they are meant to mediate for.
Q. In terms of the kiss and tell stories you mentioned in paragraph 8 of your statement, do you have personal knowledge of the amount of sums of money which pass hands between newspapers and these women for the purchase of these stories?
A. I have had accounts from several young women concerned. I think there was a tariff that almost evolved over time, some of it on a competitive basis between the different newspapers, because obviously if the story was particularly high profile, the target person was of particular interest or the young lady had an effective agent and some of them did have very good agents who would increase the temperature and amount for an auction for that kiss and tell story. That tariff, as I say here probably went for something like 10,000 for the most innocuous up to half a million. The upper end of that, or the number I give at the upper end of that, is slightly anecdotal. I have heard accounts of people who have been involved in the most high-profile cases for example Rebecca Loos and others who have been paid very large sums for their stories. But the young ladies concerned became aware that there was a tariff, and as I mentioned in my statement, there's certainly a group of repeat performers, if I can put it that way, who became fairly regular kiss-and-tell girls, who obviously took advantage of that and I do believe that well, I know on certainly more than one occasion, clients of mine have been faced not only with the prospect of being alerted that the newspapers had a kiss-and-tell girl, but also that that young lady would, if she were paid more money, not sell her story, and that in itself often, certainly on more than one occasion, appeared to be an orchestrated attempt to persuade our clients to actually pay off the young ladies, which in itself could become an enhanced story, almost in a form of orchestrated blackmail. So, you know, the supplement to the standard kiss-and-tell story I think occurred around 2006, 2007, where there was an appetite to kind of move it away from the standard to something a little more interesting, and, you know, even the readers of our regular Sunday and daily tabloid papers needed some variety and I think that's partially what occurred.
Q. You go so far as to say in paragraph 12 that in your view, the tabloids consciously calculate the financial risk of publishing a story. I suppose that would include, in relation to a kiss-and-tell story: "It would cost us X to buy the story, that will yield us additional circulation of Y and therefore there is a financial benefit", but have you any evidence for that apart from speculation?
A. Well, I think it's about the progression of behaviour. I had very good working relationships with most of the national newspapers. I was probably, and still am, one of their principal adversaries, and you know, it's not just a question of whether or not you're an adversary on a weekly or daily basis but you have to behave adversarially all the time. We did have good relationships, and during the early part of this century, 2000 up until 2008 and 2009, even I suppose even now occasionally, the papers were would occasionally alert us to a story that they were going to publish, and that was certainly more prevalent the further one goes back than it is currently. So we would be contacted, perhaps on a Thursday or Friday, in relation to a story that was being developed for publication on a Sunday. It ordinary involved either material that was potentially defamatory and the newspaper was looking to balance out their risk by putting the story to the target's lawyers, or alternatively it concerned material that was of a private nature and they were trying to assess what, if any, resistance they would receive. In order to enhance and regularise their approach to me, I would send out a list of all of my clients with a notice basically saying that if you have any material which you intend to publish, please put it to us first because it gives us the right of response, and certainly up until, I suppose, the last few years, the journalists and the legal departments would put that material to us. But over time, what's actually happened is two things. Firstly, the amount of damages that were awarded in relation to defamation, to libel generally, has reduced. So I suppose when one goes back in time to the Elton John cases, they were the last of the very high damages awards. So it's been on a sliding scale coming downwards, and the maximum amounts that have been provided by way of damages in relation to breach of privacy have been relatively modest. If a newspaper or a media organisation can calculate the financial consequences post-publication, they can also calculate whether or not the benefits of publishing the story without actually approaching the target or their lawyers first outweigh the risk or financial consequences of awards against them, and even costs post-publication. So what I have seen is a reluctance by the media generally to put stories pre-publication and to stand back and await the fallout, if you like, after publication. That has two effects. Firstly, some people view it as once the stable door is open and the private information is in the public domain, what's the point in litigating after the event? It only reinforces and reminds the reader, and those who perhaps didn't even read the information, about the private information, so there's a natural deterrent post-publication, in some people's minds, to commence proceedings. Secondly, so far as defamatory material is concerned, I suppose there is an easier outcome for the defendants in any action post-publication, and that is to make an offer in order to satisfy the claim. So certainly so far as private information is concerned, I've detected and seen a reluctance over the last few years by the media to actually put stories pre-publication.
Q. Yes. That's helpful, Mr Shear. It appears to us the distinction between stories which are private and true, where there's a pure privacy issue, and stories which are private and untrue, where there's a privacy issue and a defamation issue.
A. Yes, there is a technical distinction between the two.
Q. Yes.
A. David Sherborne, who I've instructed, as I have Hugh Tomlinson, and I have debated over the last ten years as to the effect or the potential to bring privacy actions where there is the notion of false privacy, where in order to contest the information, the private information, you have to reveal some private information, and therefore whatever one does, by contesting it, one is opening one's private life to inspection by others in circumstances where you would not ordinarily wish to do so. And you're right that that overlaps with the potential for defamation proceedings as well, because obviously the consequence of false privacy or false information is a claim in defamation after publication.
Q. Yes. Can I deal with the perhaps the pure privacy point and the genie out of the bottle issue, and that locks in with the issue of pre-notification. Of course, if the target is given the chance to apply for an injunction, that which is in the bottle has the chance of remaining there. From your own personal experience, are you able to say how often this opportunity is now being given to clients of yours?
A. Increasingly rarely. I think it's proportionate to the size and nature and possible impact of the story. The bigger the story, the less likely the opportunity is given. I've run probably as many, if not more than any other I've run more pre-publication anonymity injunctions or than possibly any other lawyer in the area, or have started to commence them and have newspapers back down. I would say at one point we were looking at or in confrontation with the larger newspaper groups almost every weekend and it is more at weekends than during the week because the Sunday tabloids have more of an opportunity to build up a story and ordinarily a larger budget to do so. Over the last few years, that's receded dramatically, and it's not just the coincidence of this Inquiry and the prominence of the phone hacking scenarios; it's more about a change in behaviour and a reluctance to be, if you like, knocked off a story by the media generally.
Q. Yes. It might also depend on how High Court judges are responding to these applications, and of course we don't get much of a sense of that because of the very nature of the application. We see the judgments in the contested damages cases, of which there are quite a few. But is the position this: that the High Court judge will wish to see demonstrated a clear public interest in the breach of privacy?
A. Certainly. Let me be absolutely clear about this. Seeking and obtaining an anonymity order is no easy thing. They are extremely hard fought. Those on the opposite side, our adversaries at the media, do not take them lightly, and the judges who hear the application want to be assured that the individual's rights have been fully engaged, firstly. That's the most obvious point, whether or not there is an inherent right to privacy in the information which the section of the media is seeking to publish. The second point is whether or not the balancing act in relation to public interest has been outweighed by the press' desire for freedom of expression, and appropriate freedom of expression, or alternatively the individual's rights. Don't get me wrong with this. I echo the last witness's sentiment that for us to live in a democracy of the type that we all desire to live in, we need a strong and effective and free press, and I believe that that balancing act in relation to public interest is an absolutely vital part of the process, and it is, as I say, hard fought, but almost invariably, certainly with respect to the sensationalist and titillating stories which we've spoken about, it's very, very hard, if not occasionally impossible, to detect a public interest rather than a sort of faint interest by the public in being titillated and inserting themselves into the private lives of celebrities. I'm afraid that that's the sort of background as to how those injunctions occur. If one can demonstrate those two ingredients, then one has a fighting chance of persuading a High Court judge that an anonymity order is appropriate.
Q. Thank you. In paragraph 14 and following of your statement, you deal with a specific matter which arose in 2003.
A. Yes.
Q. An alleged rape incident. Is there anything you wish to add to that or highlight, Mr Shear?
A. I suppose it's an example of how a newspaper might seek to bring into the public domain information about which, if they brought into the public domain themselves, they would suffer either risk of defamation actions or risk of privacy actions, and I suppose in that particular instance, the individual involved was I used the expression there "vilified", because he was unwilling to participate in or to condone intrusion into his private life and therefore whilst he was a high profile footballer, at the same time he wanted to retain a private life, and the newspapers didn't appreciate that he would contest that their intrusion, and in this particular instance or circumstance I can give you some details because there's quite a lot in the public domain already.
Q. Yes, there is.
A. There were a group of footballers who were staying at the Grosvenor House Hotel. They were the subject of a complaint by a young lady that she had been sexually assaulted and raped. I acted for the footballers concerned. Unfortunately for one of my clients, he was also staying in the hotel and was probably of more interest and had a higher profile than the other footballers and was the vilified footballer who I mentioned a few moments ago. There was a I think a clear focus by the newspapers to identify him as being the likely potential accused, if you like, and to bring his name into the public domain, by inference and suggestion, by the placing of stories and pictures in close proximity to the articles as they were published. I mean, this was as very high profile event that was front-page news for several weeks. There didn't seem to be much interest in actually identifying whether or not he was it was appropriate for him to be brought or his name to be brought out in this fashion, and we let it be known that he was not actually present at any event about which he could be should be of any concern to him or interest to them, but they went ahead and inferred his involvement and we subsequently sued and we subsequently sued and the matter was
Q. Was resolved.
A. was resolved.
Q. Yes. So in the end it was the law of defamation which provided the resolution?
A. Yes. I think that there was a point where so many people were there was so much in the way of suggestion and inference that his name was being bandied about as the likely instigator or perpetrator, and it was being traded on the Internet, and so he felt that he had to come out and actually clear his name voluntarily. And you know, not only is it embarrassing in that circumstance; people actually remember the wrong part of the story as well as the right part of the story, for his activity and for his willingness to come out and say, firstly, "I was not involved and they've tried to involve me", and secondly also for his I suppose his willingness to pursue the media after the event, he for many years after the case was resolved became the subject of unwarranted attention as well, almost on a vindictive basis by many sections of those newspapers that were the subject of our proceedings.
Q. You refer to the issue of what you call revenge-fuelled attacks in paragraph 23, and you mention a specific case which, for obvious reasons, you can't delve into the detail of. This is paragraph 24. You do refer to a three-year campaign by the press, which presumably followed the libel settlement. This is paragraph 25.
A. Mm.
Q. I know it's going to be difficult to give examples without revealing perhaps the identity of your client, but is there anything more that you can say about that on a sort of anonymous basis?
A. I think that this particular instance was particularly disgraceful, actually. I think that the notion that they had any belief in the integrity of the story was completely set aside by what we learnt later on. This appeared to be an opportunity by newspapers generally to buy a video which contained supposedly explicit material. The newspaper concerned decided not to buy the video but publish an unsubstantiated story which did not seek to identify but only create speculation about our client. We the way in which they did it was intended to either identify him for the benefit of those who were able to reconstruct a pixelated image by cross-referencing it on it was pixelated with a silhouette by cross-referencing against photographs that were published in other media and therefore, if you like, bring in his name. What they didn't appreciate is that jigsaw identification is actionable. We contested it and the consequences of that is that not only was he, I suppose, a general target of interest because of his ability and talent as a professional sportsman, but also in other areas, but there was definitely an element of a revenge-fuelled fervour, because there seemed to be a desire to, if you like, dish out retribution and they were determined to prove something that was damaging to his reputation or to his private life as part of the, if you like, the quid pro quo of having the temerity to take on the national media in those circumstances. And, you know, if any person is put under a microscope, an intensive microscope, and if there are large amounts that are being bandied about for the provision of information, the old style chequebook journalism, together with, if you like, the focus and intensity of targeting a personal, together with the what appears to be a systemic approach to surveillance with phone hacking and other facilities, provides some results, and those results were certainly exploited beyond what was, I feel, appropriate or even vaguely in any form of public interest scenario. So it's excessive.
Q. You have assisted the Inquiry with analysis, from your perspective, of the business model of newspapers and the risks they take, you say, with the calculation, conscious or otherwise, that in the end circulation figures were be increased and that will cover any damages in defamation or privacy they might have to pay. May I ask you, though, about the business model of solicitors' firms such as yours, because this is a point which I'm sure the press would wish me to make of you. Is it right that in many of these cases you work on conditional fee arrangements with your clients?
A. On some, yes, I do. I've only done so for the last, I suppose, four or five years maximum. It's I did it for I started to do it for two or three reasons, and it's not only in the area of media or privacy-related or defamation-related work. I do it in other areas. It's to, if you like, balance out the power quotient between the parties who are adversaries. It's also to utilise the potential of risk and also, if you like, to create a dialogue between the solicitor who's acting for my adversary and that adversary, so that whether it's in a commercial case or whether it's in a media or defamation case, that dialogue about the consequences of pursuing a defence in an action are often brought home very clearly when there's a discussion about finances that are involved, and I've noticed that those cases where there is the a CFA, conditional fee agreement in place are often more likely to settle, not because the opposing party is concerned about whether or not they're actually going to win or lose the case, but it's more about actually accelerating and bringing earlier in the action that consideration of whether or not it's worthwhile elongating the case and continuing the defence because if they lose they're going to the costs will increase.
Q. If I put the point of view of the opposing party. Imagine this scenario. You've told us that damages in privacy cases are not particularly large. The largest that's been awarded is ?60,000.
A. Mm-hm.
Q. Imagine a case where the opponent, the claimant, is on a 100 per cent CFA. A commercial firm such as yours, obviously you will employ appropriate counsel to represent the client. The legal costs are going to get out of hand, to use the vernacular, very soon, and therefore the newspaper calculates, even with potentially defensible cases, that they are almost compelled to settle those rather than fight them because the risks are now disproportionately high. Isn't that right?
A. No. I don't accept that for a moment. Let's look at a case for example, you mentioned the highest case at ?60,000. That's no more than sort of a very gentle parking fine in proportion to the turnover and the financial returns on publishing very high-profile stories. If one puts it into some form of a context, the highest damages award at 60,000 does not really compare to the premium being paid to the kiss-and-tell girls at the end of the story provision equation. If the newspapers feel, as they should do on quite a high proportion of the cases, that they are at risk of losing on a case, then they clearly have the opportunity to settle that case by making a sensible and appropriate and proportionate offer in settlement. Now, if they do that early, then the consequences of CFA do not actually bite upon them as to the adverse costs or the escalation of the adverse costs. Let's also be clear about this: the maximum consequences to a newspaper are double, so it's 100 per cent uplift if all of those on the other side, including the solicitors and the barristers, are all on 100 per cent uplift, and the case is found to warrant 100 per cent uplift. But I can tell you I've done cases that are CFA-based and I've taken them to assessment as well as they ordinarily go to assessment, and actually, as in most litigation, the courts only award something in the region of 65 to 75 per cent of the costs on assessment to the winning party, and therefore there is a heavy dilution to the, if you like, 100 per cent uplift in any event. Really, the risk to the newspapers of a CFA biting are only restricted to those cases where they actually lose them. I do not believe there is a real deterrent factor there where they have a significant prospect of losing. Really, any litigant, where they have a case where they believe that they have a less than 50 per cent chance of winning that case, should really be settling out in any event.
Q. Okay, Mr Shear. Approximately how many cases over the last few years in this area have you done on a CFA? Approximately?
A. Excluding the phone hacking cases that we're conducting at the moment, no more than a handful. Maybe six or seven.
Q. Have you lost any of those?
A. No.
Q. Can you give us some idea of the
A. Sorry, can I just interject? You will appreciate that when one assesses whether a CFA is appropriate to enter into as a solicitor, we weigh up the merits of the case very carefully, because we're taking a significant risk in investing our time
Q. Of course.
A. into that case. So I wouldn't take a case which I didn't believe was likely to have good or very good prospects of success, and so therefore one would only choose an appropriate case to enter into a CFA on.
Q. That's very sensible. Unless there's no doubt about it, the risk assessment is carried out the solicitor and, if appropriate, counsel before any significant work is done, but enough work for you to evaluate whether it's a good, bad or indifferent case. That's right, isn't it?
A. Yes.
Q. And your policy, probably quite prudently, is only to take cases which have a better than 50 per cent chance; is that correct?
A. Correct.
Q. From the newspapers' perspective, if you imagine the uncertainties of litigation, we can all see cases which are stone cold winners, stone called losers, but many cases fall in the middle, the 40 to 60 per cent chance of success bracket. The existence of a CFA agreement will cause a prudent newspaper to be more cautious in relation to litigation and at least possibly to adopt a more defensive approach and settle it earlier. Wouldn't you agree with that?
A. Not necessarily. I believe that there has, over the last few years, I suppose, since the evolution and development of privacy law in this country and the passing of the Human Rights Act, been a slightly strange attitude and an opaque view about what is and what is not in the public interest, and this sort of devotion to promoting a right to publish because of role models and hypocrisy became a sort of a ready mantra, and I think it's pervaded through the decision-making process. So even where there is a clear case where private information has been utilised and disseminated and that actually it looks like it looks pretty clear that there was no proper public interest ground upon which the media went on to publish it, because they haven't been able to identify evidence or submit that evidence, they've still gone ahead and contested the cases. I think it's partially because they see it as not just one battle but an ongoing war, and that they feel the necessity to maintain arms at every single battle, even though they may look like cases that shouldn't be contested, and I think that's also pervaded through to the way in which they've then, if you like, published either the story or recrimination in relation to the consequences of their publication, whether it be defamation findings against them or privacy findings against them by either seeking to vilify the High Court judges who have heard those cases, or the participants in the action in further targeting them later on. So it kind of blends through it. I don't think there's necessarily a totally rational view with which some of these cases are in which the media have continued to contest them is maintained.
Q. Yes. It's right to say, though, in relation to CFAs, two things. First of all, they're under close scrutiny following Lord Justice Jackson's report, which we know about.
A. Mm-hm.
Q. And secondly, as I mentioned this time last being, there is jurisprudence in the European Court of Human Rights, Miller v MGN, I think, which specifically say on the facts of that case it was Naomi Campbell's case that there was a breach of article 10 of the Convention in relation to CFAs. So these are all matters which will need to be considered. May I touch on, though, one aspect of the public interest and suggest that in the cases which fall in the middle of the spectrum, there are quite difficult judgmental issues. We can quite see cases on one end of the spectrum where I'm giving you a hypothetical case a politician and this has been mentioned takes a particular stance in relation to family life, that stance is made explicit, and then, unfortunately, the politician lapses from that in his or her private life. There may be not much dispute about that sort of case, but the identification of a public interest in exposing the mismatch, to put it in those terms, may be quite clear. Is that acceptable?
A. Yes, I accept that.
Q. Then on the other end and maybe we'll be seeing evidence bearing on this a bit later in the week we have successful people who have bent over backwards to protect their privacy, in particular the privacy of their children, where maybe it's very difficult to see a proper public interest in delving at all into their private life. Those quite straightforward cases. What about cases in the middle and perhaps some of the role model cases? Aren't those cases so inevitably bound up with public expectations about how people should behave maybe footballers in a certain position in a national team or whatever, just to give you one possible example that it's very difficult to be dogmatic as to where the public interest lies. In the end, it's a matter of opinion, isn't it?
A. I agree to a degree.
Q. Okay.
A. I think that there are distinctions between the different classes or groups of those to whom you refer. Like you, if I if one of our elected officials was transgressing in a way that diminished the standing which we should hold them in, then I would want to know about it. If there was some event that was occurring that related to the wellbeing of society, I would want to know about it and I'm sure everyone else would want to know about it, and therefore their rights to privacy in those circumstances are clearly diminished. But you can normally separate what is private information from what is information that should be disseminated in the public interest. When you speak of role models, or when you speak of those who play football, you know, there are different categories there as well. There are those who have to make their living from promoting their onscreen persona and therefore have to support that persona with marketing activities such as actors or actresses who appear in high large motion pictures. They have to go through a process, but do we actually know the person? No. We know their on-screen persona. We know the persona which has evolved through our perception of what they're about. I believe that they are still entitled to a private life, and the same goes for professional footballers. It's hard to understand how the suggestion that all professional footballers, or even those that play for the national team, should be automatically considered to be a role model to all who read the newspapers or all who watch them play. The main reason why they've achieved that success is because of their on-pitch or on-field ability and excellence, largely as a result of having decided from a very early age that they wanted to be a professional sportsman. They haven't actually decided that what they really want to be is a professional sportsman who also appears in the newspaper or in the media, because the vast majority of our professional footballers earn very, very, very little money from off-pitch activities. It's only an absolute handful who have earned any significant sums, and only one or two of them who could fall into the category of being a crossover between professional sports and general media profile. So I don't accept it so far as the professional footballers are concerned, unless one has a case, and there are cases, that do stand out as obvious cases where there may be public interest reasons why that information should be disseminated, but the overwhelming majority are private. There's one further point I would like to put on that. This mantra of journalists and lawyers who have worked for the News of the World and other newspapers constantly saying, "Oh, your client's a role model, they're a role model, look, they have acted as a hypocrite", and to hear of that from the senior journalists who I knew extremely well at the News of the World and the editors and the editors of the various whether it be from news or features or sports or whatever, and hearing this over and over again about how my clients have been hypocrites because they'd had, I don't know, an additional relationship or whatever, to then learn of the activities of the News of the World, whilst they had supposedly been seeking to identify the hypocrisy of others, and yet they themselves, throughout this period, were acting unlawfully, is the ultimate in hypocrisy, in my view.
Q. One can see the weakness of the tit-for-tat argument, but that be said, the present England manager has supported the view of the journalists in relation to the England captain a couple of years ago. It took him, I think, six minutes to sack the captain for failing to be the role model he was supposed to be, so the journalistic view is not necessarily out on a limb, is it?
A. I'm never quite sure to the extent of which the decision-making of an England manager is detached from the marketing and PR people who operate it, but you're absolutely right. There may be positions within public life, such as the captain of a national team, where standards of their private life are expected by those who place them into those positions to be higher than others. But fine, what are we talking about there? We're talking about a relatively few people. Most people can actually separate their public engagements, actions and, if you like, activities, from those which are private. I mean, I have no other than my activities as being a lawyer acting for people perhaps in the media or for large companies, I have no public persona. I can separate out my private life from what I do and act on behalf of clients in relation to, and most people in public life have been adept at actually separating out those circumstances, especially when it comes to their family circumstances and children and elderly parents, et cetera.
Q. Well, Mr Shear, thank you for bearing with me. I've given you a bit of a platform. You have taken up the opportunity very eloquently, if I may say so. So it's absolutely clear, others who will be in a position to express a contrary view, will be given exactly the same courtesy, but I am grateful to you for coming and I have no further questions for you.
A. Thank you. Questions from LORD JUSTICE LEVESON LORD JUSTICE LEVESON I have three topics which move it back a little bit, and each arise from something you said. You spoke about the concern of your clients following 2004 about the question of interception and then finding about the Mulcaire notebook, and the intrusiveness that you were experiencing through your clients. What I'd like to know is whether that has stayed the same, got better or worse in the years since 2006, 2007, 2008, as we've learnt more and more about what's going on. In other words, what I'm trying to pick up on is the question: "We've understood it", say the press, "we've got the picture, and it's now very different".
A. You give a number of time periods there. LORD JUSTICE LEVESON Yes, and you can talk all the way through them.
A. Sure. I actually think that the biggest separator has occurred perhaps in the period from the summer of this year onwards, and then before then from about the mid-part of 2010. So I'm dealing with the time period where there has been the greatest sensitivity and probably the fewest stories and the least intrusion has occurred whilst, I suppose, the microscope of this Inquiry and the prospect of phone hacking claims are most apparent and clear. When one goes backwards in time, and I recall that the periods from about 2003, 2004, and that goes back to several cases where I was acting, to 2005 in relation to some high-profile matters that I was involved in, I think that there was an atmosphere not just of complacency but also that they were almost untouchable and therefore their activities became incredibly intrusive and that there was a fever pitch of trying to produce more and more and more detailed stories during that period with a far lower recognition for either consequences or private or personal private rights. So I think it accelerated and increased during the period from about 2003 to about 2008 and 2009, and has receded. Whether it's temporary because of the focus of this Inquiry, only time will tell. LORD JUSTICE LEVESON So there's something potentially positive come out of it anyway.
A. Out of your Inquiry? I'm sure that if I can morph that into perhaps a further question, I think if all that comes out of this is a more effective way to facilitate a body that investigates and regulates and trains our media so that it is an effective, if you like, counterbalance to ensure an appropriate democratic process, then, you know, if that's all that comes out of it, that will be a very good thing, an extremely good thing, because I think that some of the proportionality and balance had not just eroded but become almost ignored. I think that people lost their ethical compass here, and it became systemic so that there was a real weight and an incentive for people to push the boundaries further and further, and that's why this sort of feeling. I almost detected it as a kind of as I mentioned before, this view that they were untouchable and could do almost anything. LORD JUSTICE LEVESON All right. The second question is to some extent linked. You were talking about the question of prior notification and you told Mr Jay that there was a time when you were in touch with newspapers almost every week when there was prior notification of potential stories, but that had decreased dramatically, and you explained it because of the damages and the balancing risk that you perceived the newspapers were taking. What I want to know is: have there been in this period fewer stories? In other words, if the line of stories had remained the same, then you would expect increased involvement of you post-publication, whereas previously you'd been able to dampen down the risk of publication of stories. If, of course, there aren't more stories, then that itself might reveal greater responsibility or a greater decision-making being taken by the press not to pursue particular lines. Do you see the question?
A. I think I do. I think recently there have been fewer stories which transgress. I think historically what occurred was that, you know, the law of privacy evolved gradually so that originally the reason why the press were putting stories to us was to evaluate the risk of defamation damages or damages arising from defamation that occurred post-publication and they would assess that risk pre-publication, and also to assess whether or not they would effective have some resistance or no resistance from publishing a story or to acquire additional information. What actually occurred was that as they put those stories to us and the law or, if you like, the scope and the way in which privacy arguments could be deployed increased, there was a crossover, so that as they put particular stories to us, we could identify whether or not they were appropriate stories to contest publication at all on the grounds that they stepped on the personal or individual's rights to privacy. But what also occurred at the same time was that there was an increase in volume of stories being generated or investigated, so that perhaps from, I don't know, the late 1990s to the early part of 2000, there would be maybe one sensationalist, titillating Sunday story that was really a kiss-and-tell perhaps once every three or four weeks. It accelerated and increased dramatically during the sort of 2003, 2004 and onward era. So there's lots of different dynamics to what was happening in the number of stories and the reasons why they did or did not become published. LORD JUSTICE LEVESON There's a knock-on to that, of course, that you may be acting for the celebrities and the famous who have the wherewithal firstly to instruct you, or even to know about you, and second, to do something about it if they want to. Do you have any observations upon the risks to those who do not have the wherewithal or the money or the knowledge to engage with the press at this sort of level?
A. I think unless there's two parts to that, isn't there? There's those people who have had stories published about them where they feel that to contest those stories and to commence proceedings is either continuing the pain and therefore become deterred from doing so, or don't have the financial capability to even consider commencing proceedings. I think that's a combination of, if you like, the emotional consequences of having your private life or defamatory statements published about you, coinciding with your financial capabilities, and there are those clients who do have the financial capability but become deterred because they feel that they are confronting organisations which are enormous and which have extremely deep pockets. As somebody once said to me, you know, why take on a newspaper when actually they just order up another barrel of ink and you're at risk in the future? And that is something that I've heard regularly over the years that deters people from taking on proceedings or taking on the media organisations, because they feel that they will it will be a war they will never win, and that at some point that they will just have to give up the process. Some people are extremely focused about it and will fight to protect their rights and fight to protect the rights of their families and are very protective of their family situation and will not stand for it, and they're normally the ones that actually have continued and pursued proceedings which have resulted in substantial damages. LORD JUSTICE LEVESON Okay. The third and final area that I wanted to ask you concerns an area which we're certainly going to have to look at, but which nobody has yet mentioned, which is the Internet. You made the point that I think your footballer was concerned about the jigsaw identification using material from the Internet. Have you had to engage with those that are responsible for putting material out on the Internet? And if so, with what effect? Because that is, in part, the elephant in the room.
A. I've had three cases which have involved the dissemination of information via the Internet, either as a result of, if you like, viral rumours or other means. They've all had different consequences and different dynamics to them. It's an extremely difficult problem to confront. I remember the first case that I was involved in that related to that is the Grosvenor House case that I referred to a few moments ago. That case was the subject of huge speculation and a lot of it was undertaken by emails between people who were either emailing websites or blogs or amongst people within businesses, and there is it is extremely difficult to prevent, if you like, identification or, I suppose, focus by dissemination of information on the Internet. On that case, we made it very clear to employers of large organisations that they should not condone what were defamatory emails by being passed within their organisations and we did actually manage to prevent some of the fall-outs by using that sort of technique. Interestingly, in another case that I had, where it was regarding the false identification or the identification of the client, it's the pixelated or silhouette image matter that I referred to, one of the issues that the newspaper concerned raised was that, irrespective of the fact that it had been identified on the Internet who the person was in the image that was silhouetted, that relatively few people became aware of the identity of that person because it was being traded on the Internet, it was on an Internet publication and then it sort of morphed its way very gradually into the mainstream media. On that occasion, I actually used the Internet to undertake a poll to find out how many people did manage to identify the person. So it cuts in both ways. You know, it is a tool that can be used, but it is an extension of the media which is very difficult to moderate. I have identified situations in the past where I felt that it was going to be counter-productive to attempt to restrict or to change the agenda under discussion. It's almost like the finger in the dyke; you can often create a bigger consequences by contesting than you would by allowing it to pervade. I've also noticed one other feature, which I think is relatively sinister, and that's more recently where I believe that sections of the media have instigated or stimulated media Internet-led discussion and debate and, I suppose, tittle-tattle, in order to bring into the Internet culture information which then supports and reduces the risks and damages which would be available to the mainstream media if repeated within the mainstream media. So I have seen an element where the Internet is being used or utilised in a very, as I said, sinister fashion, in order to disseminate that. LORD JUSTICE LEVESON Have you attempted to engage with any of the Internet service providers?
A. Yes, we have. Certainly with respect to Google and Twitter, but that's more as a in situations where they have been custodians of the information, the same thing with, perhaps, Wikipedia as well, where information has been brought into these media forums and that we've engaged them and identified the assertions or information generally that's being passed between people and asked them to moderate it or remove it. There's a variety of responses that one receives. Often it's very slow. I think they're concerned to become too involved or too much of a participant. So far as Google is concerned, it's a difficult situation to confront because they don't have any of their servers in the UK, and therefore one is placed in a position where one is seeking to persuade them of what is appropriate as opposed to inappropriate conduct or communication. They've become more responsive. I think Twitter is a difficult social media forum to control or to moderate. People close their Twitter accounts. I've had a number of clients whose names have been utilised by others to open Twitter accounts and then utilised to then disseminate defamatory or other material, quite wrongly, and it's quite difficult to get that dealt with. LORD JUSTICE LEVESON Thank you. Thank you very much indeed. There's no applications you make under section 10, Mr Sherborne? MER SHERBORNE Sir, no, there isn't. Thank you very much, though. LORD JUSTICE LEVESON I think that's probably enough for the morning, and we'll adjourn now and resume at 2 o'clock, if that's all right. Thank you. (12.44 pm)


Gave a statement at the hearing on 21 November 2011 (AM) ; and submitted 1 pieces of evidence
Gave a statement at the hearing on 21 November 2011 (AM) ; and submitted 1 pieces of evidence
Gave a statement at the hearing on 21 November 2011 (AM) ; and submitted 1 pieces of evidence
Gave a statement at the hearing on 21 November 2011 (AM) ; and submitted 1 pieces of evidence


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