Morning Hearing on 24 November 2011

Sienna Miller , Max Mosley and Mark Thomson gave statements at this hearing

Hearing Transcript

(10.45 am) LORD JUSTICE LEVESON Could we confirm that this is now live into the marquee? It is, is it? Thank you. MR BARR Sir, for the benefit of those who are now just joining us, the order of witnesses that we're going to hear from today is Miss Sienna Miller, Mr Mark Thomson and then Mr Mosley and JK Rowling. LORD JUSTICE LEVESON Okay. MR BARR The first witness is Miss Miller. I call Miss Miller. MISS SIENNA MILLER (affirmed) MR BARR Good morning.
A. Good morning.
Q. Could you confirm to the Inquiry, please, your full name?
A. Yes, my name is Sienna Rose Diana Miller.
Q. You've provided a contact address through your solicitors?
A. Yes.
Q. And you've voluntarily provided the Inquiry with a witness statement?
A. Yes.
Q. Are you familiar with the contents of your witness statement?
A. I am.
Q. And are the contents of your witness statement true and correct to the best of your knowledge and belief?
A. Yes, they are. LORD JUSTICE LEVESON Miss Miller, I've said to almost all of the people who've given evidence to me before how grateful I am to you for being prepared to take part in this exercise. I'm very conscious that you have strong views about privacy and that the very act of coming to give evidence to me exposes you and means that you're talking about things which actually you're quite keen not to want to talk about.
A. Yes. LORD JUSTICE LEVESON So I understand the difficult choice you had to make, and I'm very grateful. Thank you very much.
A. Thank you. MR BARR Before I ask you questions, I understand that Mr Sherborne would like to ask you is that right? MR SHERBORNE It is, sir, with your permission. Questions from MR SHERBORNE MR SHERBORNE Good morning, Miss Miller.
A. Good morning.
Q. We've heard from a large number of witnesses who have already given evidence to this Inquiry about the experiences they've had with press photographers and paparazzi, people such as the McCanns, the Dowlers, Hugh Grant, Steve Coogan and a number of others, and people who gave examples of such things as photographers camped outside their homes, being stalked wherever they go, jumping out at them without warning and driving dangerously and so on. Are these examples which are familiar to you in terms of your experiences?
A. Yes, they are.
Q. Can you give the Inquiry just a little bit of an idea of what you have personally experienced in that regard?
A. Yes. At the time I actually now have an order against paparazzi, so my life has changed dramatically, but for a number of years I was relentlessly pursued by about 10 to 15 men almost daily, pretty much daily and, you know, anything from being spat at or verbally abused. I think that the incentive is really to get as strong a reaction as possible, so you know, as other people have mentioned, but being jumped out at, when you get a shock, or saying things to kind of get some emotional reaction. They seemed to go to any lengths to try to upset you, which is really difficult to deal with.
Q. You've given some examples about being spat at and abused to get a certain type of photograph, I think as Kate McCann said, with a certain type of caption added to it.
A. Yeah.
Q. We've heard a lot about driving. Have you had any experiences of dangerous driving around you?
A. Yeah, highly illegal driving, overtaking, undertaking. There was an near incident that the police were informed of where a pregnant lady was nearly knocked down. But this was a daily occurrence, people riding in motorcycles alongside a vehicle while taking photographs, and at high speed, and it causes you to drive dangerously and them to drive dangerously with really very little regard for anyone else on the road and it's all in pursuit of relatively little. Often these people have taken a photograph of you and they are just desperate to kind of find out where you're going next, regardless of whether it's a meeting or some kind of inane event. It's just pursued. I think there's something about the pursuit which is very exciting for paparazzi photographers.
Q. It may sound a bit of a silly question but for those who've not actually experienced it first-hand, can you give us a little idea of what it feels like to be the victim of that kind of pursuit?
A. You know, it's really terrifying. It's terrifying not only for the person experiencing it but for friends who are with me, family members who are with me, for the people driving the cars. I would often find myself I was 21 at midnight running down a dark street on my own with ten big men chasing me and the fact that they had cameras in their hands meant that that was legal, but if you take away the cameras, what have you got? You've got a pack of men chasing a woman and obviously that's a very intimidating situation to be in.
Q. Thank you. You've explained that what you did about it was you got an order from the court. I think that was in I should know that was in the summer of 2008?
A. Yes.
Q. What happened, if anything, as a result of getting that order?
A. It went from having 20 people outside my house every day to zero, so I can now lead a relatively private and normal life, which was which is fantastic, but it was a long and arduous and exhausting struggle to get there.
Q. Can I move on then to another topic, again just dealing with it very briefly. It's obviously a matter now of record that you obtained judgment, I know it's been referred to as a settlement, but you obtained judgment against News Group Newspapers in your action?
A. Yes.
Q. And we've heard from, for example, Sally and Bob Dowler earlier this week about the fact that you having brought this action and a few other people having brought this action right at the outset is what led to them being told themselves. Was it an easy decision to take, to bring an action against News Group Newspapers?
A. No, not at all. I was very nervous of taking on an empire that was richer and far more powerful than I will ever be, but then I saw the evidence that I obtained from the police and felt that I couldn't not do something about it, but it was very daunting.
Q. Can I just ask this: given that understandably you've had your fill of having to instruct lawyers, can you explain why it is that you're giving evidence to this Inquiry?
A. Because you made me?
Q. I hope you don't blame me afterwards. What do you hope to achieve?
A. No, I hope that some form of change comes to our media. There are very respectable and fantastic journalists in this country and they're all bracketed under the same name of the press and I think that's not fair, given the grand differences between publications. So I hope that some change can come, and therefore I am actually very happy to be giving evidence. MR SHERBORNE Thank you very much. Mr Barr has some questions for you. Questions from MR BARR MR BARR Thank you. Miss Miller, you've explained very eloquently what the consequences of being an accomplished actress were for you back in 2005 and 2006 in terms of media intrusion. Could I take you to paragraph 4 of your witness statement, please.
A. Yes.
Q. Where you describe that during this period, almost every week, extremely personal matters were being published, including parts of private conversations.
A. Mm.
Q. My question to you is: how did that make you feel about those around you?
A. Well, initially you know, I'm very lucky, I have a very tight group of friends and a very supportive family and to this date no one has ever sold a story on me, regardless of the fact that several people, even acquaintances, have been offered large sums of money to do so, so I felt very protected. But it was baffling how certain pieces of information kept coming out, and the first initial steps I took were to change my mobile number and then I changed it again and again and I ended up changing it three times in three months, and stories still continued to come out with very private information that only a select group of people knew about. So naturally, having changed my number and being pretty convinced it couldn't have been as a result of hacking, even though that was my suspicion, horribly I accused my friends and family of selling stories, and they accused each other as well.
Q. That paragraph links with the same theme which you pick up again at paragraph 7 of your witness statement, where you describe one occasion where you sat down your family and friends in a room and accused them of leaking stories to the press.
A. Yes.
Q. Because a story had come out that only they knew about.
A. Yeah, there was one particular very private piece of information that four people knew about, and I had been very careful to only tell my mother, my sister and two of my closest friends, and a journalist had phoned up saying that they knew about this, and so yes, I accused my family and people who would never dream of selling any sort of information on me, I accused them, someone in that room, of selling a story.
Q. We now know that in fact your phones were being hacked.
A. Yes. This was the fact that they had this piece of information was as a result of accessing my phone messages and those of people around me.
Q. So how does it make you feel now, knowing that you were driven to make the accusations against your friends and family as a result of phone hacking?
A. Understandably really angry and I feel terrible that I would even consider accusing people of betraying me like that, especially people who I know would rather die than betray me, but it just seemed so intensely paranoid to assume that your house is bugged or you're being listened to somehow. It just seemed so extreme, especially considering that I'd changed my number so many times, and it still happened, that I couldn't think of an alternative, but it's really upsetting for them and for myself that I accused them.
Q. What would you say to those who did this?
A. I don't think I don't think it would be appropriate in court.
Q. I won't press you then.
A. I would you know, I think it's understandable. It's just outrageous. It's kind of unfathomable to feel like you are justifiable in behaving that way, I think, and the ramifications on people's lives are very rarely considered by the people doing it, I think. The effect that it had on my life was really damaging to me and to my family and friends.
Q. Thank you. That takes us perhaps rather neatly to paragraph 5 of your witness statement, where you describe some of the other intrusions into your privacy. In particular, you talk about journalists and photographers would often turn up in meeting places that you'd arranged on the phone and nobody else knew about. That you had men sitting outside your house and you were convinced that they were somehow listening to your private conversations.
A. Mm.
Q. Mr Sherborne has touched upon this a little already, but could I ask you perhaps to develop on just the scale of the impact on your life that these events had?
A. To be honest, it made it very difficult to leave the house. I did feel constantly very scared, and intensely paranoid. I've kind of touched on it all, really, but, you know, to the degree I had with my publicist we had a separate number that we would only speak to each other on that number, and subsequently I found out that Glenn Mulcaire had that number as well. So every area of my life was under constant surveillance and instinctively I felt that and felt very violated and very paranoid and anxious, constantly.
Q. You tell us, moving to paragraph 8, that you found "photographers and journalists turning up at places where I thought I could avoid media intrusion"?
A. Yes.
Q. Presumably as a very famous actress, you were well used to being photographed in certain circumstances?
A. Yes.
Q. But are we here talking about circumstances in which you were hoping to have some privacy?
A. I think there wasn't a circumstance that existed where I wasn't hoping to have some form of privacy but obviously in certain situations that was impossible. I think what was more baffling was the fact that people found out before I'd even arrived where I was going and so that feeling of people knowing absolutely everything about you was, as I said before, really intimidating and scary and confusing. I didn't understand how they knew, but I felt like I was living in some sort of video game and people kind of pre-empting every move I made, obviously as a result of accessing my private information.
Q. Thank you. Moving on now more broadly to the question of photography, were photographs taken of you published accurately, or were they altered? I understand there's a particular example that you'd like to tell the Inquiry about?
A. I mean, there are several examples of I think a story can really tell a picture, but often can tell sorry, that didn't make sense. LORD JUSTICE LEVESON The other way around.
A. Yes, thank you. MR SHERBORNE If it helps, I do have a copy of the article that Miss Miller is referring to, which I can hand up. MR BARR Sir, we were notified of this in advance and the publication in question has already been given advance notice of this, so I have no objection to a copy of it being circulated. LORD JUSTICE LEVESON You're going down unchartered territory for me. Does the relevant well if everybody's agreed, then so be it. Let me see it. It's not how I would prefer it to happen. Thank you.
A. Yes, in this particular situation I'm the ambassador of a children's charity for terminally and seriously ill children and I was at their annual fundraising ball where many of the children were and many people who were donating money, raising money, et cetera, and there was a very sick child that I was playing with in a corner of the room who was pretending to shoot me and I was pretending to die, which was you know, we were playing a game. And somebody took a photograph and the Mirror cut the boy out of the photograph and said that I was drunk. And obviously, looking at these photographs, they look you know, it's almost amusing. It looks awful. It looks shocking. And they were aware at the time of the situation, the real situation that I was in. And so I complained, I sued, I won, they printed an apology that was miniscule and sort of irrelevant a few days later, but by that point the damage is done. If anybody in my line of work sees this photograph and hears that I was behaving as they suggested at a charity event, it's just detrimental to my career, to my reputation, and I think this is sort of the problem. You know, the fact that they knew that they would be sued and have to pay damages was really not enough of a deterrent in certain situations within the media. You know, this was LORD JUSTICE LEVESON This article should not go on the website. There is absolutely no reason to do it, and I'm not prepared to republicise that which has happened.
A. Thank you. MR BARR It may suffice if I read the apology that was later given by the newspaper in question. It's entitled: "Sorry, Sienna. On Saturday, 12 March, we printed pictures of Sienna Miller, who is an ambassador for the Starlight Children's Foundation charity, at the Starlight Ball for terminally ill children. We said that Sienna's boozy antics had shocked guests at the event and thereby suggested that she had behaved in an unprofessional manner. We are happy to make clear that Sienna was not drunk and did not behave unprofessionally. In fact in the pictures Sienna was on the floor playing with a seriously ill six-year-old child. We have apologised to Sienna." If I can move from photography back to the question of phone hacking and to bylines and to the way also in which sources were portrayed, you say at paragraph 9 of your witness statement that the intrusive pieces about your private life, often sourced to "pals or close friends", appeared to be closely linked to what you remember was being said to you by your family and friends. Did the fact that these articles were being attributed to "pals and close friends" fuel the suspicions about your friends that you've described earlier?
A. Of course. Especially when the information coming out was very similar to that which I'd said to specific people.
Q. And to those who wrote these articles, under whose bylines they appear, do you think that it is ethical to give a false attribution to a story?
A. No. Absolutely not. LORD JUSTICE LEVESON Not a difficult question to answer. MR BARR No, sir.
A. But often journalists they would be written by anonymous journalists, they wouldn't print their names, which was almost an admission from their part that it was unethical.
Q. I hope I'm bowling the straightest of balls. If I can move on now to the time when you found out that you had been hacked and at paragraph 12 of your witness statement you say that you discovered that it wasn't only you, that lots of people close to you had been put under surveillance, and that Mr Mulcaire had created a project under your name?
A. Yes.
Q. How did you feel when you found out that the intrusion had gone beyond you to those around you?
A. I felt terrible. I mean, these were people who had never done anything remotely public, who had been under constant surveillance by this man. And it just seemed very crude, looking at the notes, his hand-written having initially been told there was no evidence and then receiving a stack of evidence, hand-written notes with dates referring to very personal things within my life. All my telephone numbers, the three that I changed in three months, my access numbers, PIN numbers, my passwords for my email that was used to later hack my email in 2008, was on these notes. And then, as you said, you know, a number of my friends, I think about 10 phone numbers in total. So there was just this web of surveillance, which obviously makes it very easy to understand how they were getting all of this information. Everyone close to me was being monitored and electronically listened to.
Q. I see. Could I ask you now about the litigation itself, just a few questions. First of all, what was your aim in taking action against the media? News International in particular, News Group News. Were you seeking financial compensation or did you have some other purpose?
A. No, it was not about financial compensation. I would rather have not gone through any of the litigation that I've had to go through. No, not for financial gain. I wanted to understand the extent of the information that they had on me. I wanted to know who knew who knew about all of this information, who had access to my telephone numbers, who had been listening to me. I mean, it's that feeling of knowing people are talking about you behind your back or watching you and not being able to confront it. It's very frustrating. So I wanted to get to the bottom of it.
Q. Your civil claim was successful, and did you think that the court procedures provided an adequate remedy for you?
A. No. I'm still waiting for the full disclosure, which is the only thing I really want, from News International, and so far it's been very unsatisfactory what I have received. I will continue to wait for it, but it's been a long process so far.
Q. Although this is strictly a matter between you and News Group News, it may be right that I tell you I've been told by counsel, Mr Rhodri Davies, that that order is going to be complied with. Can we perhaps look at what it was that was admitted in the litigation that you brought? Could we have up, please, the document, the reference number which ends it starts at 31105 and I'm looking at paragraph 8 on the second page, please. That must be a wrong reference. LORD JUSTICE LEVESON No, I don't think so. I think that's what you want. MR BARR Yes, that's exactly what I want. Thank you. We see there then this is what was admitted in a nutshell in the civil proceedings. Perhaps I can read: "This meant that News Group accepted that confidential and private information had been obtained by the unlawful access of the claimant's voicemail messages, that confidential and private information had been published as a result, and that there had been an invasion of her privacy, breaches of confidence and a campaign of harassment for over 12 months. News Group accepted that these activities should not have taken place and that the articles should not have been published." So there we have it in a nutshell. Could I take you now, please, finally to the end of your statement, and paragraph 18. In the conclusion to your witness statement, amongst other things, you make the point that the actions of the News of the World made your life hell and damaged a lot of your relationships, making you nervous and paranoid. I don't want you to go into anything private that you don't want to say in public, but are you able to give us some insight about the type of damage that was done?
A. It's really hard to kind of quantify in words. It's more it's more the state of mind that you're in as a result of that level of intrusion and surveillance and interception, which is just complete anxiety and paranoia. I realised, having watched the testimonies of people this week, that there are far more severe cases of this with the Dowlers and the McCanns and it's alarming what's happened. Comparative to my life, this was too much to deal with and I've had to fight tooth and nail constantly to gain the freedom which I've managed to acquire now. The relationships that were damaged, just this kind of breeding of mistrust amongst all of us. It wasn't just me accusing people, it was my mother accusing people, nobody could understand how this information was coming up, so everybody was very upset and confused and felt very violated by this constant barrage of information that was being published. It was impossible to lead any kind of normal life at that time, and that was really difficult for a young girl. MR BARR Thank you. Those were all my questions.
A. Okay. Questions from LORD JUSTICE LEVESON LORD JUSTICE LEVESON What you could put it is this way, is it, that it is important to identify who has done wrong, but it is equally important to exonerate all those who have done absolutely no wrong?
A. Yes. LORD JUSTICE LEVESON Yes, I understand. Thank you very much indeed for coming. I know you have a busy life and I'm very grateful.
A. Thank you. MR CAPLAN Sir, can I make one matter clear? I think it was a slip of a tongue by Mr Barr, but he was asking Miss Miller: "The proceedings you brought against the media and News International in particular" in the context of phone hacking. I think it's quite clear that Miss Miller's evidence is in relation to bringing proceedings solely against News of the World. LORD JUSTICE LEVESON I think that's absolutely right. Thank you very much.
A. Thank you. MR BARR Sir, the next witness is Mr Thomson. Do you want to move straight to Mr Thomson or have a short break? LORD JUSTICE LEVESON We'll carry on. His statement is actually provided in the main commentary; is that right? MR BARR It is, sir, but what I was proposing to do was to try and exploit the benefit of Mr Thomson's long experience as a media lawyer and to ask him some questions about the functioning of the system. LORD JUSTICE LEVESON That's absolutely fine. I'm not challenging his giving evidence. I'm merely putting it in a slightly different box to the evidence that essentially we've been hearing to date. MR BARR Indeed, sir, it's going to be of a rather different nature. LORD JUSTICE LEVESON Thank you. MR MARK THOMSON (sworn) Questions from MR BARR MR BARR Mr Thomson, could you give us your full name, please?
A. Mark Walter Harold Thomson.
Q. And your professional address?
A. 41, Maiden Lane.
Q. You voluntarily provided the Inquiry with a witness statement, which is signed and dated 7 November 2011. Are the contents of the statement true and correct to the best of your knowledge and belief?
A. Yes.
Q. The statement is going to be taken as read, Mr Thomson, so we don't need to go to all of it. But you set out in the introductory section your professional credentials as a media lawyer?
A. Yes.
Q. It's right, isn't it, you've been practising media law for something in excess of 20 years?
A. Yes.
Q. And that you have acted, if I can put it this way, for both sides, but most recently predominantly against tabloids in the popular press?
A. Yes.
Q. And that you also have experience of media-related regulatory work?
A. Yes.
Q. You're an author in the field and you also have had recently a particular interest in representing the victims of voicemail interception?
A. Yes, that's right.
Q. You go on in your witness statement to deal with breach of confidence actions. You give as an example a case in which you acted for Hugh Grant in 1996 and 1997, concerning information emanating from a hospital. You say that at paragraph 12 after supremely lengthy and unsatisfactory dealings with the PCC, legal proceedings were issued? LORD JUSTICE LEVESON Are these the proceedings which Mr Grant told us about?
A. That's right, yes. LORD JUSTICE LEVESON The incident, so we can bring it to mind.
A. The hospital, yes, exactly. LORD JUSTICE LEVESON Yes, right. MR BARR Could I ask you, from your perspective as a professional media lawyer, what was unsatisfactory about the PCC's handling of this case?
A. They were slow and their concern and I think the Mirror's concern was the impact of an adjudication on possible future proceedings. So the jurisdictional question was, I think they were trying to suggest that Mr Grant ought to waive legal claims before the Mirror adjudicated. He wasn't prepared to. I think there was over six months', maybe nine months' delay before they finally adjudicated in the form we've seen. It was a very short adjudication and it didn't deter the Mirror, because when we issued proceedings, they defended initially the claim for breach of confidence, so it had no effect apart from delay.
Q. Moving from that particular example to the general, at various places in your witness statement you tell us about the PCC. Can you tell us in a nutshell what you consider to be the problems with the current PCC set-up?
A. They wear too many hats. They appear to represent the media at times, such as in the Parliament, they appear to be speaking as their trade union spokesman. The other times they're trying to adjudicate as independent persons, and then they try and mediate at the same time, and I think that in small part they're effective. Notification of harassment is
Q. If I just stop you there and we'll pick up on that point of independence. What do you think can be done about that?
A. Well, I really don't think that just a few adjustments to the PCC will work. I think my view, having done a lot of broadcasting work, is the only way if Parliament and everyone wants proper regulation, it has to be something like the ITC, an independent regulator with power to investigate, and that means power to call for evidence, draft articles, emails, the powers to fine, so that newspapers are actually take it seriously, and powers to order corrections or not apologies, necessarily, because that has to be voluntary, but powers to order corrections on the same page as they appeared. And unless that happens, a PCC with a few extra teeth isn't going to work, in my view. LORD JUSTICE LEVESON You'd better explain for those that don't understand something about the background of the ITC.
A. There's been a number of regulatory bodies in broadcasting, but the ITC was a precursor to Ofcom, and the ITC were the regulator for commercial stations. They derived from one of the many broadcasting acts, but they had considerable power to investigate of their own motion without necessarily a complaint being made, to order corrections, statements about whether there's been an intrusion, and when I know, because I acted for Carlton TV, when you get a notice from the ITC, you take it seriously. On the investigation that the ITC did for Carlton, they asked for hundreds of hours of background tape recordings of the programmes in question. It took nine months to investigate, and I had thousands of hours of tape recordings in my room, but they did a complete and thorough investigation. They asked searching questions, asked for documents, and they adjudicated Carlton were not in breach and it was a great relief, but the broadcasters took it seriously because they could be fined. Carlton had been fined two or three years before, I think ?1 or ?2 million in relation to another programme, so they knew the effect, and Carlton took it seriously and it was dealt with seriously and other broadcasters I know, because I at times acted for them, thought the ITC were effective. My view is that in private, most newspapers don't think the PCC are effective, but that's how they want it.
Q. Picking up on the question of being taken seriously, you do make clear in your statement, and you've just repeated it now, that you don't think that the media take the PCC warnings seriously. I'd like to ask you, are you referring across the board or to a particular section of the media or to a particular title?
A. I think it's across the board, really, but mainly non-broadsheet newspapers, so red top and tabloid newspapers. They don't want the PCC to be effective, in my view. They're quite happy with it as it is. They may say they want a few more tweaks to make it tougher, but as long as the PCC exists, this current activity will continue.
Q. Whilst you are, I think, on balance very critical of the PCC in your statement, it's right to say, isn't it, that you do point out that there are some things that they have done successfully. Could you tell us, and having told us about the bad, could you tell us about the good, please?
A. Yes. They've developed they occasionally do get involved pre-publication, it used to be they only covered what was published but now they've changed their rules, they do get involved in pre-publication situations into news gathering and in particular harassment. So what we did in the Hugh Grant matter, and it worked to a limited degree, was I sent them an email, we asked them this is the Tinglan Hong harassment, but I've used this process before. I sent an email expressing concern about a media siege of Tinglan Hong's house, and they passed it on to the media and also recently, it's a good development, they've contacted picture agencies as well. So they pass on the message and endorse it, saying, "This is unacceptable", and it's a good way to circulate notices, but ultimately, if the media and the paparazzi agencies want to do it they will do it anyway, which is why we had to get a court order later.
Q. I see. Could I move away from the PCC to the question of prior notification LORD JUSTICE LEVESON No, before you go there, can I just come in on that?
A. Yes. LORD JUSTICE LEVESON There are two things that I want to just ask you about in relation to what you've just said. The first is that the PCC's reach was wide enough to extend to photographing photographers and their organisations, in the sense that they gave out the notice to them.
A. Well, it wasn't, it is voluntary, and this is the point, that they have I mean I've had conversations with them. It's not part of their remit, but so technically they don't regulate photographers, and I've spoken to agencies as well. They don't have power to regulate independent agencies or news agencies, it's just publishers, and this is a problem. A lot of the product that newspapers produce comes from freelancers, freelance journalists, freelance photographers, but what they thought, even though they don't have the power or the reach, is that we will at least notify the agencies, and that's a good idea, but their constitution doesn't allow for it, which is why in my view the PCC plus won't work. Any new proper regulator has to deal with not just the publishers, but the independent agencies, photographic agencies and freelancers. LORD JUSTICE LEVESON How can you define that? I'm not asking you necessarily to do it off the top of your head, but if you've given some thought to this issue, how you might define that group is not unimportant.
A. Well, photo journalists, journalist agencies, people involved in producing stories for the media. This is why I think the PCC can't it structurally can't work in the sense that the structure is just about the newspapers, whereas in reality some of the worst Sienna Miller's explained some of the worst activities in relation to photographic agencies, and they're independent, and in reality the PCC can't regulate that and the newspapers turn a blind eye on how they got the material. As long as they have great photographs of someone getting angry or crying, they'll publish the photograph. So my view is the regulator an effective regulator has to deal with news-gathering persons wherever they're from in this country, so whether it's a paparazzi freelancer, an employed paparazzi or news agencies, that has to be dealt with and that's the only way it will be effective. LORD JUSTICE LEVESON Then you have to be able to identify them.
A. A lot of them have NUJ cards, even paparazzis. They sometimes say, "I have an NUJ card". It's relatively easy in my view to work out LORD JUSTICE LEVESON So you could create a list, could you?
A. Yes, I could. LORD JUSTICE LEVESON You might like to think about doing that.
A. Yes. LORD JUSTICE LEVESON The other question that I wanted to ask before you go on to the topic Mr Barr wanted to cover was the way in which this would ever work in relation to publications that aren't traditional periodicals, whether they be magazines or newspapers, and more particularly, more specifically, the Internet.
A. Well, I mean the Internet is difficult, and there's convergence, which means that the BBC now compete online with the Daily Mail and it is an issue. In reality, the Ofcom regulations don't cover the BBC online, but only cover BBC on radio, so the regulations are a complete mess in my view and need to be sorted out across the board. I think in the list that I could provide you with, the most damaging publications are the publications of traditional news websites, so whether it's the BBC or Daily Mail or the Mirror, the online publications have significant effect, whereas minor websites minor websites are probably beyond regulation. But that doesn't mean that regulation shouldn't take place, because the real damage occurs to the traditional newspapers and broadcasters who make money off those news platforms. So it's workable. You can do that. LORD JUSTICE LEVESON It's not just minor websites. It's also bloggers and the rest of them.
A. Yes, that's an issue as well. There are ways. I mean there's an issue about when someone's blogging about you, whether strategically a complaint ought to take action bring attention to someone whose following is 100 or 150. In fact in reality whether it's a legal complaint or a regulatory complaint, possibly complaining about a blogger is self-defeating because you bring attention to something which is best ignored. My view is that on those small websites, best ignored until they reach a critical mass of attention in a newspaper. If you run around trying to worry about every single blog on the Internet, you'll end up sort of paranoid and mad, and that's not worth it. LORD JUSTICE LEVESON I don't want to get myself into that position. All right, thank you. Yes? MR BARR Indeed putting some clear blue water between paranoia and madness, can we move on to prior notification and you tell us a little bit about that in your statement. I'd particularly like to explore with you what you say about the trend that you've observed with prior notification. You describe that now there's rather less prior notification given than there used to be.
A. Yes.
Q. Can you perhaps give us some detail about that? Has this been a progressive decline or a sudden decline?
A. It's a progressive decline. I've got to make a distinction. Although I've had many disputes with Associated, and quite a lot of my work is against them, in fact, oddly or not, they tend to notify almost all their stories. You do tend to get the Friday afternoon email from Associated much more often than any other newsgroup. But the other, the red tops tend less and less to notify on bigger stories, and as someone said before here, the bigger the story, and perhaps the more intrusive the photograph, the less likelihood there is. The photographs are generally potentially more intrusive, and the media groups recognise that and hence the reason not to notify, because if they say, "And there's an intrusive photograph of someone in their garden or semi-naked", it's pretty obvious that a lawyer may well advise to instruct counsel to apply to court immediately. They want to sell newspapers, they don't want to be injuncted, they don't notify.
Q. Have I understood you correctly that you think the motive that is driving this is a desire to prevent injunctions
A. Yes, it was admitted in the Mosley case, but yes, it's quite clear. They don't want to be stopped. They rather and for clients who've seen if there's an intrusive story that has been published, you don't get notification, many clients say, "It's out now, I have to deal with it, I have to explain to everyone about it", they'd rather not take action about something that's come out, and that's a calculation. The media don't want to be stopped, but they realise that to sue on something that's private is going to be difficult, it's going to be embarrassing, it involves people talking about their private life to some extent, and the media win by not notifying.
Q. So is there a gradation then? Is there any pattern? Is it on the more intrusive stories that you tend not to get a notice?
A. Yes, the more intrusive stories. My experience of the tabloids, and I include the Daily Mail in that, although they strictly are not, is that it's the intrusive stories that are of great concern. The Daily Mail does tend to notify. The others tend not to notify, more and more so, and it's the intrusive photographs of the intrusive stories. We can all spot something really intrusive. It's what they would want on the front page of a Sunday newspaper. The more intrusive it is, the less likelihood it is or even if they do notify, they might notify at the last possible moment on Saturday afternoon when someone's shopping or not available, so they choose their time well, if they do notify, but it's less so now than it used to be. In the 1990s, I said in my statement, in the 1990s, you would always get notification. You would or would not get injunctions, but you would it was unheard of not to get notification. But then around about 2001, 2002, when the Human Rights Act came in, maybe they were worried about it, it became less and less.
Q. I see. I'm getting the impression that your evidence on this issue is the problem particularly with the tabloid end
A. The red tops, yes.
Q. Can I take it it's not a problem with the broadsheets?
A. Yes, I don't think I think I've only sued the broadsheets once or twice in the last 20 years, but for confidence or invasion of privacy.
Q. I'm going to move from that now because I think we may hear more about prior notice this afternoon, and I'm going to take an excursion away from the regulatory theme to pick up on paragraph 16 of your witness statement, which is in the section "Media and paparazzi harassment, Sienna Miller".
A. Yes.
Q. We've just heard from Sienna Miller, but you say that you've personally witnessed a number of car chases when photographers have jumped red lights or driven dangerously to pursue her, and that it is terrifying?
A. Yes.
Q. How common an occurrence is this sort of law breaking in order to get a story or a photograph?
A. My view, it was very common, especially for Sienna Miller, but I was meeting her at her home or at one time I was going to court with her and I saw the mob of photographers outside and at one stage I think she was just going to the GP for tablets or something, they ran they raced across I think it was vivid memory, they had a Porsche and they raced across a zebra crossing with that woman with a pram, or a pregnant woman, and it was really frightening. I think I notified the police and they couldn't get evidence of it. But it is truly frightening to see a sort of news mob in pursuit. It's certainly intimidating and frightening when they surround you at a restaurant, but the pursuits are dangerous and I have recommended clients video it or film what happens and I've seen some of these car pursuit videos and they are frightening, and the paparazzi who are not regulated, they frequently jump red lights and endanger themselves and others, and for Lily Allen, they crashed into her when they went through a red light a few years ago and we had to get an injunction to protect her as well.
Q. Would it be fair to say that the lessons which it would have been thought might have been learned after an inquest which was conducted in this very court have not been learnt?
A. Exactly.
Q. Can I move now to a second topic arising out of your section on harrassment and it's at the top of page 6 of your statement, where you explain that Sienna Miller became well-known for enforcing her rights legally, so the press largely moved on to another less risky target. That seems to me to raise a question for potential claimants: fight or ignore. Is that a real issue for victimses of harassment as to how to deal with it?
A. Yes. I mean I think I've said this many times, I'm not waiving privilege, but when Sienna couldn't take living in England any more, she said "I can't face it any more", I said, you've got two choices. Ignore, fight or move to Paris. Those were the only options. And in reality she had only one option, which was take action.
Q. If we expand that a little, obviously there are some people who have the means to fight
A. Yes.
Q. in these circumstances. How can those without means be protected? How can they fight, if that's what they elect to do?
A. It is difficult, because a lot of the time you're insofar as a lot of the time you're dealing with photographers, you don't know their names. You might have their number plates, have pictures of them, you don't know their names. Insofar as no win no fee arrangements are available to protect, and they theoretically would be, if you're suing unknown people, which is what Tinglan Hong's action is, against "unknown photographers", no lawyer will acting on a CFA against an unknown defendant because you're never ever going to get paid. So in reality, unless there's a proper regulator, there is no protection from paparazzi at all unless you're wealthy, which is wrong.
Q. If there was a LORD JUSTICE LEVESON Hang on, you could also find a different way of doing it.
A. Move to Paris? LORD JUSTICE LEVESON No, no, no, you misunderstand me. You could find a different way of obtaining a remedy that is short of the panoply of High Court proceedings.
A. Yes, undoubtedly, and one of the I mean, this is why I think an effective regulator, and this is the European Court decisions on this, Peck v UK, but an effective regulator should provide effective remedy, which means an injunction possibly compensation, that may be left to courts but an injunction to stop those people governed by that regulator would be effective, and it would be cost-effective. So that's a solution, but I think there'll be a lot of hostility by all those affected by allowing another body, not a court, to grant injunctions. It's quite complex. They may then end up with jurisdiction disputes about who should grant an injunction, should you have to go to a high court judge or should you go to the regulator. But if a regulator could stop this activity, effectively at no cost, it would work and the media would scream and howl about it, mainly because it would work. MR BARR I'm going to move on now to another topic. It's on the same page of your witness statement, paragraph 22.
A. Yes.
Q. Where you talk about exemplary damages and you explain that you've had a change of mind and you now think that exemplary damages in actions for invasion of privacy and breach of confidence are appropriate and necessary in exceptional circumstances. Of course, the answer to that question lies in the hands of the senior judiciary as a matter of law, unless there's legislation, but can I give you the opportunity to explain why you think that should be the case?
A. Because of this calculation. I mean, this calculation that they make. If in fact in extreme circumstances a newspaper is obtaining confidential information by unlawful means such as phone hacking, deciding cynically not to notify, therefore taking the opportunity to stop it away from the victim, and if they're making a calculation that, well, we're going to make ?50,000 out of that headline anyway, then if they make that calculation and they intrude permanently into someone's privacy, which can't really be remedied, then they should pay for that. They make the cynical, unlawful calculation, they should pay. In fact, it's not just me, in fact the suggestion to this, or the it was reminded me by Jack Straw in his speech I've exhibited, but he suggested, when he was talking about the origin of the Human Rights Act, that if newspapers choose not to notify, and it's not in the public interest, then that should trigger an availability for exemplaries. It may well be that one can formulate a condition for exemplaries. If the means of acquisition is unlawful and they choose not to notify and there is no public interest, then exemplaries ought to be available and that may deter newspapers from taking these steps.
Q. One of the other themes of your witness statement is the ways in which you believe that the media are getting around the laws that undoubtedly exist, and I'm now looking at page 8 of your witness statement, paragraph 28.
A. Yes.
Q. You say that the problem recently appears to be that having failed to lobby for immunity from the Human Rights Act, the media has sought to get around privacy laws by a number of other means ranging from simply denigrating privacy claimants and it's there I want to pause. You give some examples, but could you give us some idea of the scale of the problem, in your experience, of the press denigrating people who take them on?
A. Well, you have to look at the Daily Mail attack on Hugh Grant. It's pretty clear that they're attacking him because of his
Q. That might perhaps be a single incident, but my question is about the scale. Is it common or not?
A. Yes, I believe it is. I acted for Loreena McKennitt in her privacy action which went up to the Court of Appeal and was successful, and the House of Lords, and she was not only attacked frequently in columns of broadsheets and tabloids, but they misdescribed her, the nature of her action, critically misdescribed it. In fact, it's quite interesting, if you look at all the attacks on Loreena McKennitt, they had the same critical error running throughout. It's Paul Dacre's speech, articles in the Independent, they had the same it's like it was written by someone and regurgitated repeatedly. The same mistake was there in the trenchant criticism of my client's action. Max Mosley can speak for himself LORD JUSTICE LEVESON What was s that mistake?
A. They suggested that Loreena McKennitt had complained about a biography, about all these matters which were true and accurate, and in fact one of the most important parts of this judgment in the Court of Appeal was that the court said and accepted and it was decided at trial that a number of these facts in the biography were untrue, and so this started, if you like, the doctrine of false privacy. You can claim it's just as intrusive to complain about an allegation that's private and true as private and false. So if someone is saying that an actor has cancer, in the old days if it's untrue you'd have real problems in trying to stop it. It wouldn't be defamatory, it's rather sad. But newspapers sometimes would, and in one case of mine they said, well, because it's not true, you can't injunct for invasion of privacy. Well, this case made it clear for the first time that you can injunct for false private information, which is critical, but that was glossed over by the newspapers in their criticism in their rush to criticise Loreena McKennitt, and it's a really important point. LORD JUSTICE LEVESON Yes. MR BARR If I could ask you then from your experience to put a subjective quantification on the scale of denigration. Would you describe it as common, frequent, standard practice? Or uncommon? Where on the scale does it lie?
A. It's invariable. I've acted for Naomi Campbell, Loreena McKennitt, Sienna Miller at the time she was complaining she was chastised for complaining, for whingeing about her privacy. Max Mosley was every possible claimant, whether it's a footballer, they have all been chastised for complaining, for going to law to get remedies, and it's a sort of tactic to undermine their vindication by trashing the claimant.
Q. Is it a problem which is confined to a certain section of the media or not?
A. Less it's less so some broadsheets, but generally it's universal, this sort of sniping: how dare someone complain about their privacy? I've seen it in the Independent, in the Times, a little bit in the Guardian. It's more so in the Mail, the Mirror and the Sun, et cetera.
Q. It's a question of degree?
A. Yes, there's a degree.
Q. The second part of paragraph 28 of your witness statement develops another LORD LEVESON Sorry, I'm just thinking that last answer through. Of course, there has to be a balance, because ultimately they're entitled to take a different view.
A. Yes. LORD JUSTICE LEVESON Even from the courts, and frequently do.
A. Yes. LORD JUSTICE LEVESON So it has to reach a certain level, hasn't it?
A. Of course they can comment on the judicial process in the sense of, "Oh, well, I don't think that injunction should have been granted", but this is my opinion, my suspicion is: well, if they go to law, we'll give them a good trashing and it will deter other people from doing the same. That's my view about the strategy behind it because it happens, as I said, almost invariably. Let's make it difficult for them, let's deter others, let's trash them and maybe other people will think long and hard about doing it in future. LORD JUSTICE LEVESON Yes. MR BARR The second point that you develop in paragraph 28 of your witness statement, Mr Thomson, concerns the use of the social media and the Internet to break stories or to frustrate injunctions by disclosing identities. You described it in terms of the media using the social media and the Internet to achieve these ends.
A. Yes.
Q. What I'd like to ask you is do you have any firm evidence that injunctions have been frustrated at the instigation of the news media, or not?
A. I have firm evidence and inferences and anecdotal evidence from other lawyers, but if I go into the details of it, I break injunctions and people's privacy.
Q. I'm not going to ask you to
A. Can I give examples without going into details that identify the private information? On one client, a story was laundered. It went it was planted in America. The newspaper, having been granted having offered undertakings with a public domain proviso, exported the story to America and then reported it a week later, saying, "Aha, the US press have reported this, we can now report it". That's what I call story laundering. "We can't do it, but let's get the Americans to do it". Then there are other examples where an anonymisation order is granted, so the judge makes a decision to give the reasons for his judgment so there can be debate about why the injunction was granted, but he'll anonymise the person, so that the information is given as to the reasoning but not the person. So then the newspaper will have an article about the decision saying it's a scandal, and they will put a picture of the footballer next door, talking about something, and it will be nudge nudge, wink wink, this is the person who's doing it. Sometimes they might use social media. This is inference when we're talking about concrete evidence in these cases, it's always inference based on facts, so there are examples where Twitter has been used to identify the names of anonymised claimants and then other people have suddenly jumped up and said, "Look, it's on Twitter", and I think there has been in some cases evidence brought before the court that this is the sort of campaign of identification by jigsaw. So I have concrete examples, but I can't give you the details. I know of other examples from other lawyers, and they have put evidence before the court, but it's not
Q. Not direct evidence, it's inferential?
A. It's inferential evidence, yes. LORD JUSTICE LEVESON Of course, all that's very difficult to prove. To give you the American example.
A. Well, yes, the American example, but in fact an American film producer rang me and told me that's what happened because he spoke to the American newspaper and they said I can't go into full detail it is really difficult. LORD JUSTICE LEVESON I'm actually thinking ahead because throughout this exercise I'm not only taking what you're saying, but trying to think of ways that could be devised without impacting on freedom of speech or freedom of expression let alone
A. No, this is the most difficult area. This is I mean, the Internet to some extent, parts of the Internet are the Wild West, and we all know that, and America, unlike any other country, has a very different legal situation, so it is quite common and easy to post get things on a website in America, or use Twitter or use Facebook, which all these social media websites, the servers are in America, so it is really difficult, but as, I think there have been some decisions, I think it's JAH or CTB, I can't remember which anonymised initials, where a number of judges have said, "Just because it's on Twitter doesn't mean I'm going to undo this injunction", but this is a difficult area, as we've seen in the sort of so-called superinjunction scandal a few months ago. It is very difficult and there's no easy solution. MR BARR That's an answer we're getting all too frequently. If I move on now to the next section of your witness statement, which deals with phone hacking.
A. Yes.
Q. Because you represent a number of claimants in the voicemail interception litigation, you have an opinion on what the evidence shows and you set out that at paragraph 32 of your witness statement, don't you?
A. Yes, that's right.
Q. It may be the easier thing to do is to ask the technician to bring up on the screen page 9 of your witness statement. I think the technician has the URN or would you like it? THE TECHNICIAN I don't have copies of those documents. MR BARR You don't have copies. Perhaps it's best left that people can read your statement in this regard when it's posted onto the Internet. Can I pick up on one particular topic, and that is where you say at the bottom of page 10, you start talking about phone hacking activity not being confined to one newspaper and one newspaper group, but you say "common industry practice". I just want to explore the basis for this assertion. You first of all cite what Mr McMullen has said, and we'll be hearing from him in due course. You've heard my learned friend Mr Jay's opening when he referred to there being corner names in the Mulcaire document naming the Sun and the Mirror. Is that the basis for your assertion or does it go further than that?
A. Yes, it does. I have to be careful because some of the I don't want to trespass on the police area, so I'm going to talk slowly to make sure I don't trip up. In addition to the corner names and McMullen, of course Piers Morgan has spoken about this a lot. I have the GQ article here, can I read it out? It's in his words.
Q. We're going to be hearing from Mr Morgan in due course. If you're talking about material which is in the public domain
A. It is, GQ.
Q. Then I think that's a matter which the Inquiry can take.
A. Right. LORD JUSTICE LEVESON So you send me to a GQ article
A. He interviewed Naomi Campbell and halfway through he said, "Have you got any questions?" and she asked him about phone hacking. LORD JUSTICE LEVESON We'll ask him and he'll explain himself then.
A. Yes. So that's another bit that he's made generalised statements that it was widespread. The next point is Heather Mills has said she's my client has said to Newsnight and confirmed to me that a person other than Piers Morgan admitted to her at the Mirror Group that her phone had been accessed. LORD JUSTICE LEVESON I wonder whether we shouldn't do this. If you have a list of
A. I have quite a long list. LORD JUSTICE LEVESON bits of evidence, I just wonder and I want to be as full and forthcoming about all this.
A. Yes. LORD JUSTICE LEVESON Equally I have to be rather careful to be fair.
A. No, I'm trying to be LORD JUSTICE LEVESON I understand why you're being cautious, but if you have areas where because of what you've been told by your clients or otherwise, then what I think I would prefer you to do is to provide that to the Inquiry.
A. Yes. LORD JUSTICE LEVESON And enquire whether your clients are themselves prepared to give some evidence. My problem is
A. That specific point has already been aired on Newsnight, so it's public domain, but what I can do is I can give you the basis of my opinion in a document on that paragraph 36. I can give you further and better particulars of it. LORD JUSTICE LEVESON I think that would be better.
A. Yes. LORD JUSTICE LEVESON And then whatever I can bring into the public domain, I would.
A. Yes, I agree. LORD JUSTICE LEVESON What I'm anxious to avoid is you saying what somebody said and then
A. I agree. LORD JUSTICE LEVESON You understand the point?
A. Yes, I prefer that. LORD JUSTICE LEVESON Very good. MR BARR We've found a solution and the good news continues because my next question is, finally: is there anything further you'd like to say to Lord Justice Leveson about future regulation of the media?
A. No. It's covered in my statement. LORD JUSTICE LEVESON It's not only in your statement, but in a large number of articles that you've attached to your statement, public domain material.
A. Yes. LORD JUSTICE LEVESON In which you've explained your views not only in a book but also in evidence that you've given.
A. Yes. LORD JUSTICE LEVESON And I'm very grateful to you for taking the trouble to put it all together.
A. Thank you very much. LORD JUSTICE LEVESON Thank you. MR BARR Sir, it would now be a convenient moment for a break. LORD JUSTICE LEVESON Yes. (11.59 am) (A short break) (12.05 pm) LORD JUSTICE LEVESON Yes, Mr Jay. MR JAY The next witness it is Mr Max Mosley, please. MR MAX MOSLEY (sworn) Questions from MR JAY MR JAY Make yourself comfortable, please, Mr Mosley and your full name for the record.
A. Is Max Rufus Mosley. LORD JUSTICE LEVESON Mr Mosley can I thank you as well for the effort you've put into assisting the Inquiry. You must be heartily sick of lawyers, even if you are one yourself. But I'm very grateful.
A. Thank you. MR JAY Mr Mosley, there is a lengthy witness statement which you have signed. I'm going to ask you, please, to turn it up in that large forbidding bundle in front of you under tab 1 and confirm, please, on the 29th page, that that is your signature that bears the date 31 October this year, and that you have signed a statement of truth; is that correct?
A. Yes, I have.
Q. In relation to yourself, you were born in 1940, you are fluent in French and German, you went to Christchurch, Oxford, to read physics and you then qualified as a barrister?
A. That is correct.
Q. In terms of your professional career, you didn't in fact practice full-time in the Bar, you did something else altogether, Formula 1. Tell us a little bit about that.
A. While I was at the Bar, I used to race in club races as a sort of hobby and that grew and eventually I moved up into Formula 2, which is just the category below Formula 1, and met people I'd been at Oxford with and we decided to start a company making racing cars, so I gave up the Bar after five years and entered the world of motor racing.
Q. What happened, to cut a very long story short, because it was a very distinguished career, is that at one point you were president of FISA, which is part of the FIA, but then in 1993, you were elected present of the FIA, which is the Federation Internationale de l'Automobile, the governing body of Formula 1?
A. That is correct.
Q. And you remained in that role until your retirement in 2009. Please give us a thumbnail sketch of what might be said were your achievements in that role.
A. Obviously the FIA is known because of motorsport, because it particularly governs Formula 1, but it is actually the world federation of all the big motoring clubs, and so during the time I was there, we expanded enormously the amount of activity concerning ordinary motoring, and I had a great deal of activity, particularly in Brussels, to do with road safety and the environment, and the main thing I did was I started, with other people, the European new car assessment programme, which was a crash test programme to improve the safety of vehicles, and that led to really what can be called a revolution in the safety of road vehicles, and I think has contributed to saving a very great number of lives, hundreds in this country, thousands in Europe. Of course it wasn't just me, it was the organisation which I headed, but it's the side of it that nobody talks about, they talk more about Formula 1 motorsport, but it was actually the road safety plus the environmental things, things like improving the emissions legislation so it was more effective. There was an endless list of things to do. LORD JUSTICE LEVESON This is road safety across the piece, nothing to do with trying to drive fast, but simply trying to drive safely on the roads of countries throughout Europe?
A. Exactly, sir, yes. It was deaths on the roads for example in this country has halved in the last 15 years and about 30 per cent of that, according to Transport Research Laboratory, is due to improved vehicle safety, and I think what we did is probably responsible for most, if not all, of that. So it's significant. MR JAY The world of Formula 1, of course, is a glamorous world. Would you say that you were someone who courted publicity, Mr Mosley?
A. No, never. I tried to get on and do my job. I felt that if you're running something like Formula 1, it's a bit like running a hotel. If it's done properly, you never see the manager. The people who were the stars and the publicity were the drivers. My job really was to try and run it and make sure first of all that nobody got killed and secondly that it was run as fairly as it possibly could be in a very, very difficult technological environment.
Q. We should note that you received a Legion d'honneur in Paris, the only public function, I think, that your wife attended; is that correct?
A. It is correct. That was entirely to do with road safety rather than Formula 1.
Q. One might be forgiven for observing on a personal note that this world is a long way removed from the world which your parents inhabited. Is that a fair way of describing it?
A. It is. There was an element of deliberateness about that. The first time that I took part in a club race and got somewhere up the grid, people were standing around talking about the list of people, and somebody said, "Mosley, Max Mosley, he must be some relation of Alf Mosley the coach builder from Leicester", and I thought I'd found a world where things are slightly different.
Q. Thank you. I'm going to move straight to paragraph 10 of your witness statement, and the date is 30 March 2008, Mr Mosley. It's an article published in the News of the World. I'm just going to give the heading, we're not going to look at the text, I'm going to paraphrase one matter, and we're certainly not going to look further than that. LORD JUSTICE LEVESON And there's no question of this article appearing MR JAY No. LORD JUSTICE LEVESON Anywhere. Good. MR JAY "Formula 1 boss has sick Nazi orgy with five hookers." The article itself links you with your father, doesn't it?
A. It does.
Q. The article appeared on the front page and then on pages 4 and 5 of the newspaper, and photographs appear which were the result of I think a covert camera in the lapel of Woman E, as she was called; is that correct?
A. That is correct.
Q. Can you tell us, please, about the timing? The article was not in the first edition of the News of the World, it was in the second edition. Why do you think that was the case?
A. I think that was to avoid any danger of me finding out about the article and asking for an injunction to stop it being published.
Q. So it's implicit in what you've said that the first you knew about the article is when it was drawn to your attention, you were given no forewarning by anyone?
A. That is correct. I first learnt of it about 10 o'clock on the Sunday morning.
Q. The article had two aspects. There was a personal aspect, it goes without saying, but then overlaid on that there was the Nazi theme aspect.
A. Yes.
Q. And both must have caused you concern, but the Nazi theme was particularly damaging; is that right?
A. Well, yes. I mean the other theme was a straightforward invasion of privacy, which I thought was outrageous and illegal, but the Nazi allegation was completely untrue and to me, particularly, enormously damaging. And I was outraged by that.
Q. Yes. What happened, tell me if I've got this right, on the News of the World website, video footage was placed?
A. That's correct.
Q. Was it put there in a way in which it could be copied by others, to your knowledge, or not?
A. Yes, my understanding is that there is software which prevents videos being copied, but they did not, for whatever reason, employ that software, so the video was then copied all over the world.
Q. I think initially the video footage was removed by the News of the World at the request of your lawyers. However they then notified you that they were going to put it back online, and that prompted you to apply for an emergency injunction; have I got that right?
A. I think that's right, from memory. We asked them to take it down, and then we applied for an injunction, but they put it up again I think over the weekend, even.
Q. Just moving ahead a little bit, Mr Mosley, the precise chronology is that the application for an emergency injunction was heard by Mr Justice Eady the Friday afternoon, which was 4 April?
A. Correct.
Q. And his Lordship indicated that he would reserve his judgment over the weekend, and presumably deliver it on Monday morning. Do I have that right?
A. That's correct.
Q. But what happened over the weekend in relation to the footage?
A. As I understand it, they then well, they then published a second story on 6 April.
Q. Yes.
A. Which purported to be an interview with Woman E, the one who had worn the camera, but we found out subsequently at the trial that Mr Thurlbeck who wrote the article had written it beforehand, took it up to her at Milton Keynes and said "I want you to sign this, here's ?8,000" and intimated that if she didn't sign it, her picture would be published unpixelated. LORD JUSTICE LEVESON So let me understand this. The article is the previous weekend.
A. Yes, sir. LORD JUSTICE LEVESON It comes on for an injunction before Mr Justice Eady on the Friday.
A. Yes. LORD JUSTICE LEVESON He reserves without granting relief over the weekend; is that right?
A. Yes, that is right. LORD JUSTICE LEVESON And that is when you learned of these other activities?
A. Yes. LORD JUSTICE LEVESON Thank you. MR JAY The second article is over that weekend, on 6 April, and you told us the circumstances in which it was published and the evidence, inverted commas, on which it was based. In other words, no evidence at all.
A. No. I mean what happened subsequently is that the woman who was supposed to have given the interview appeared on Sky Television and said that there was no truth in the Nazi allegation at all. I should have said that the main purpose of the story on 6 April was to try and stand up the Nazi allegation, but she actually first of all didn't turn up to give evidence at the trial because she wasn't prepared to perjure herself, and secondly actually went on, as I say, television and said that there was no truth whatever in the story. LORD JUSTICE LEVESON Hang on, I'm losing the chronology because the trial is much later on.
A. Indeed, sir, yes. LORD JUSTICE LEVESON But the Sky News, was that
A. Sky News I'm sorry, I've made a muddle there. The Sky News came after the trial. I'm so sorry. LORD JUSTICE LEVESON No, no.
A. She didn't turn up at the trial and then LORD JUSTICE LEVESON The facts are very much in your mind and I have them, I think, but I just want to be clear.
A. Even I'm getting a bit muddled. It's three years ago. MR JAY Let's take it slowly because it's important to keep the chronology in mind and not rush too far ahead to the next bend or chicane LORD JUSTICE LEVESON I think we can do without that, Mr Jay. MR JAY One aspect of the second article which you draw attention to in paragraph 15 of your witness statement at the end we don't have the article available even to us made it clear that the tape was being sent to Formula 1 chiefs; is that correct?
A. That's correct.
Q. Your feeling was, and you develop this in paragraph 16, that the purpose of the second article was to threaten you; is that correct?
A. That is correct.
Q. The judgment was given by Mr Justice Eady on 9 April, which I think must have been the Wednesday.
A. Yes.
Q. It doesn't matter, but in terms of summarising its outcome, you were unsuccessful principally because the material was already so far into the public domain that there was no practical purpose, Mr Justice Eady felt, in granting future injunctive relief. Is that a fair summary?
A. He said the dam had burst and in another place he said he didn't want to be King Canute, but he was really saying there was no point giving the injunction, it was everywhere.
Q. What he did order was that there should be an expedited trial of your privacy claim; is that correct?
A. That's correct.
Q. And the matter was very considerably expedited because the trial itself LORD JUSTICE LEVESON You're going a bit too fast, Mr Jay. Let me just understand it. Mr Justice Eady took the view that there was no point in coping with something that had already happened, and therefore he refused you relief, but he did, as I understand your evidence, observe there was no legitimate interest, element of public interest which would be served by the additional disclosure of the edited footage at this stage?
A. That's correct. LORD JUSTICE LEVESON But he didn't grant relief in relation to that, but as I understand what you've said, that didn't stop the News of the World just reposting everything again?
A. Yes. That's exactly correct. LORD JUSTICE LEVESON Then MR JAY That's paragraph 36 of the judgment. LORD JUSTICE LEVESON Paragraph 36. MR JAY On the internal numbering, page 11. On the longer number, 31208. His Lordship made precisely those points. LORD JUSTICE LEVESON Right. So then he orders an expedited trial. MR JAY The hearing dates it took place over five days, 7 to 10 and 14 July 2008.
A. Yes.
Q. Judgment itself was handed down on 24 July 2008.
A. Yes.
Q. We know that from page 14, which is the judgment, to which I will come in a moment. So this was all happening very rapidly in terms of the usual course of litigation, if I can so describe it. Can I deal with one point, though. Was it explained to you that if you decided to take defamation proceedings rather than proceedings in breach of privacy or breach of confidence, that the legal process would be much longer?
A. It was. I was told that would be about 18 months, and that for me would have been really then academic, because what I needed to do was to establish very, very quickly that the Nazi allegation was completely untrue.
Q. In terms of the choices which were available to you, on the one hand you were facing expensive litigation, that is obvious.
A. Yes.
Q. Were you given any idea I'm not going to ask you to talk about what you advised in terms of whether you would win or lose, but were you given any idea about how much the litigation might cost before you embarked on it?
A. Yes. I mean, when I had my first meeting with counsel, they explained to me very carefully that first of all there's no such thing as certainty in litigation, which I was already aware of, obviously. That if I lost, it would cost ?1 million or more. If I won, it would still cost tens of thousands of pounds. By taking the matter to court, the entire private information which I was complaining about would be rehearsed again in public, with all the press there, with the benefit of absolute privilege for anything that was said, and that at the end of all of that, no judge could remove the private information from the public mind. Indeed, by going to court, I was augmenting the degree to which the public were aware of it. But taking all that into account, I thought what they'd done was so outrageous I wanted to get these people into the witness box and demonstrate that they were liars. And the only way to do that was to put up with this extremely risky and unpleasant process, which I then decided to do.
Q. The only other choice was to pack up your tent and beat a retreat, presumably?
A. Indeed, and of course first of all I felt that was the wrong thing to do, because even if I went to some obscure village in the Andes, within a week or two people would know about it, thanks to the News of the World putting it on the Internet, but I also felt that this was typical of some of the things they do, and I was somebody who fortunately had the means and a little bit of legal knowledge, and within 18 months would be free to concentrate anyway. I felt if I don't do it, I don't know who's going to, because the number of people they pick on with a really bad case who have the means to fight it is infinitesimally small. It really one of the terrible things is that unless you're very fortunate and happen to have a bit of money, you simply can't take this on, as things stand at the moment.
Q. I'll deal with a number of contextual points before we come to the proceedings. The first point is the breadth of dissemination around the world with the Internet. Of course it's obvious but you touch on this in paragraph 22 of your witness statement. Indeed, you point out, is that right, in terms of the print media alone, there were 790 separate articles written in various UK newspapers and online between 30 March 2008 and 3 June 2008, so these articles were all commenting on the underlying substratum article in the News of the World, presumably?
A. Indeed. And, of course, on the Internet it was even more extensive. I mean, one example, I have a very good and energetic lawyer in Germany, and I think they've so far shut down 193 different sites which were repeating the News of the World story. Not shut down the sites, but got it removed from the site, I should say.
Q. And the matter itself is obviously of interest to the FIA, but they commissioned a report from distinguished leading counsel here, Mr Anthony Scrivener, and his report, as you made clear in your evidence, exonerated you?
A. Yes, he said there was no basis whatever for the Nazi allegation.
Q. One matter however I would like to deal with this is paragraph 25 is that an edited video or copy of it was sent to the president of the FIA senate?
A. Yes.
Q. By solicitors acting for the News of the World on their instructions; is that correct?
A. It's correct. They sent this and that was a matter for complaint actually in the French courts at a certain point because it was potentially criminal, what they did. But they sent the deliberately sent the entire video, inviting the FIA to show it to all the members.
Q. And the inference which may be drawn is that they were putting some sort of political or other pressure on the FIA to vote you off, is that what you're saying?
A. Absolutely. I had the impression from the outset that as soon as I challenged the original story, that the entire resources of News International, News Group Newspapers, were then deployed effectively to try and destroy me, and obviously one way of attacking would be to send this thing to the FIA and try and get them all to look at it and hope that they get rid of me.
Q. There was a vote of confidence, but you won it?
A. Yes. One of the things I did at the outset was I suggested to the body that deals with these things that we should have an extraordinary general assembly and invite the membership to vote, because it seemed to me they'd voted me into the position and they were the ones who were entitled to tell me I should resign or I shouldn't resign, and so I called a general assembly, everybody who wanted to say something was allowed to do so. At the end of it they voted and I won by a substantial majority.
Q. In relation to the evidence adduced at the civil trial LORD JUSTICE LEVESON Before you go on to that new topic, Mr Jay, can I just ask a question arising out of something you said two minutes ago, Mr Mosley. You said your energetic lawyers in Germany had shut down 193 different stories on different sites.
A. Yes. LORD JUSTICE LEVESON Is it only in Germany you've taken such action?
A. No, sir, I've done it in a number of different countries. I think we have litigation going on in 22 or 23 countries at the moment, and it's just an ongoing process because I mean I'm trying to do everything I can to get this material removed from the web and it's not easy, it's ongoing, it's very expensive, but Germany is actually the number one example. Because of the Nazi thing, it got very much picked up in Germany. LORD JUSTICE LEVESON How many sites have you been able to close down? If you don't know exactly I'm just trying to get a feel for the size of the exercise.
A. It's in the hundreds. My lawyers would probably produce an exact figure. One of the difficulties is that Google have these automatic search machines so if somebody puts something up somewhere, if you Google my name, it will appear. We've been saying to Google, you shouldn't do this, this material is illegal, these pictures have been ruled illegal in the English High Court. They say we're not obliged to police the web and we don't want to police the web, so we have brought proceedings against them in France and Germany where the jurisprudence is favourable. We're also considering bringing proceedings against them in California. But the fundamental point is that Google could stop this material appearing, but they don't, or they won't as a matter of principle. My position is that if the search engines if somebody were to stop the search engines producing the material, the actual sites don't really matter because without a search engine, nobody will find it, it would be just a few friends of the person who posts it. The really dangerous thing are the search engines. LORD JUSTICE LEVESON Yes. Well, that's part of the problem.
A. Indeed. LORD JUSTICE LEVESON Yes. MR JAY The evidence before Mr Justice Eady of course, this is quite complicated and I'm going to just, if I may, identify some highlights, otherwise there's a danger we'll get bogged down in detail which people will not understand because they haven't pre-read your witness statement. There are just a number of points I'd like to bring out. The first point is the hidden pinhead camera, which was on the lapel of Woman E. Had she been given any instructions by the News of the World which you can assist us about, please, Mr Mosley?
A. Well, she was, because they had a rehearsal where Thurlbeck showed her how to fit it and wear it and this rehearsal was recorded on the tape. I don't think they knew this, to be fair to them. The beginning of the tape is Thurlbeck saying to her, "When you get him to do the sieg heil, get him to stand back about 3 metres so you get it in the shot". It was quite clear to me when I saw this that Thurlbeck was trying to set the whole thing up from the beginning as a Nazi episode. She, of course, never mentioned anything to do with Nazi. She knew that had she done so, everyone would have been horrified. Particularly the German girl, because being a modern German person, she would have been horrified. But it's absolutely clearly there, Thurlbeck telling her to try and get me doing a sieg heil.
Q. To be clear about it, you obtain a copy of the video footage as part and parcel of the disclosure in the civil proceedings?
A. Indeed.
Q. Then the second point, and you've already dealt with this, Mr Mosley, this is paragraph 33, and this relates to the second article on 6 April, the follow-up article, Woman E was offered some more money, ?8,000, you told us. So we understand it in sequence, what is the significance of this point? What are you driving at here?
A. What to me at least is significant is that they wanted a follow-up article because I'd said that this was untrue, they wanted to really, really put the boot in, and so they wrote this article purporting to be by the lady and completely composed by Thurlbeck, got her to sign it, then went back and rewrote parts of it. During the trial, he was saying this was the result of numerous telephone conversations with her, which I don't think anybody really believes. The judge asked him if he'd kept a note, which of course he hadn't. It's not surprising, I don't think the conversations ever took place. He simply invented the entire article.
Q. In paragraphs 34 and 35, you explain that within the News of the World this story was very tightly kept, in other words to a limited number of people to avoid the possibility of leaks, because the risk of leaks would obviously cause a consequent risk that you might take proceedings for an injunction; is that right?
A. I think that's right. I think they realised that publishing this article was completely illegal, and therefore if I found out about it and went to a judge, it would be stopped. But, therefore, knowing it was illegal, they took elaborate precautions, including the spoof first edition, which you mentioned earlier, to make sure that nobody in my camp, as it were, would find out.
Q. The last evidential point I'd like to deal with, and this is quite a detailed point, but it's under the heading "Blackmail", and I'm afraid it does relate to Mr Thurlbeck. Could you tell us about this in your own words? Maybe we can start, I'll read it out, with an email which was sent on 2 April 2008, which is three or four days after the publication of the first article. The email reads: "I hope you're well. I'm Neville Thurlbeck, the chief reporter at the News of the World, the journalist who wrote the story about Max Mosley's party with you and your girls on Friday. Please take a breath before you get angry with me! I did ensure that all your faces were blocked out to spare you any grief, and soon the story will become history, as life and the news agenda move on very quickly. There's a substantial sum of money available to you or any of the girls in return for an exclusive interview with us. The interview can be done anonymously and your face can be blacked out too. So it's pretty straightforward. Shall we meet/talk?" Will you comment on that? But before you do, can I read out the email which was sent the following day, paragraph 37 of your witness statement: "I'm just about to send you a series of pictures which will form the basis of our article this week. We want to reveal the identities of the girls involved in the orgy with Max, as this is the only follow-up we have to our story. Our preferred story, however, would be you speaking to us directly about your dealings with Max and for that we would be extremely grateful. In return for this we would grant you full anonymity, pixelate your faces on all photographs and secure a substantial sum of money for you. This puts you firmly in the driving seat and allows you much greater control as well as preserving your anonymities (your names won't be used or your pictures). Please don't hesitate to call me or email me with any thoughts." And then finally there was an email with an offer of money. Anybody reading that, indeed, this was Mr Justice Eady's conclusion, might think this was close to being blackmail. Is that fair, Mr Mosley?
A. I think so. What he was saying to them, particularly in the last email, was: if you don't co-operate, we will publish your pictures unpixelated. If you do, we'll give you ?8,000 and pixelate them. For these women, that was terrifying, because they would all dread the idea of any of their family finding out, or their work. Three of them had really significant positions. One was a very serious scientist, another one had a major position in healthcare, another one ran an office. Very significant. Only one of them was what you might call fairly anonymous, and they were all terribly at risk. And the thought of this being published in the News of the World was terrifying for them. But the really admirable thing is that they did not succumb to it.
Q. Thank you, Mr Mosley. I'm not going to deal with what happened at the trial itself. What I am going to deal with is the judgment of Mr Justice Eady and navigate my way through it so that one can understand his findings and his reasoning, because his reasoning is important in terms of Article 8. In our bundle, the judgment starts at the internal numbering at page 14. It is a lengthy judgment. LORD JUSTICE LEVESON It's certainly a judgment that repays reading in full. MR JAY Yes. LORD JUSTICE LEVESON Yes. MR JAY Mr Justice Eady first of all, having set the scene, and I'm at paragraph 44 on the little internal numbers page 24, considers the factual question: was there a Nazi theme? And his conclusion was that there was not, although his conclusion comes at a slightly later point in the judgment. At paragraph 79, this is page 31, Mr Justice Eady deals with the blackmail allegation and he's absolutely clear about it, Mr Mosley. At paragraph 82 at page 32, Mr Justice Eady says: "This would appear to contain a clear threat to the women involved that unless they co-operated with Mr Thurlbeck, their identities would be revealed." There was then some cross-examination of Mr Myler on this issue at paragraph 85, and Mr Myler accepted that these emails could be interpreted as a threat. Mr Justice Eady's observation in relation to Mr Myler at the very end of paragraph 85: "This seemed to fall short of a wholesale endorsement of his chief report's behaviour."
A. He has a wonderful way of understatement.
Q. Yes, it's a nice flight of myosis, I suppose. LORD JUSTICE LEVESON It's the witness, Mr Myler works out that the cross-examiner is talking about blackmail and he said, "I'm not so sure it is", and he's asked: "Do you think there's a justification about threats? "I've already accepted that clearly looking at this it could be interpreted as a threat and I accept that." I would love to know how else it could be interpreted. MR JAY Yes. Mr Justice Eady then asked his own questions at paragraph 86. His questions were directed to the obvious point: well, why wasn't this raised with Mr Thurlbeck? Because here was Mr Thurlbeck possibly blackmailing people. Why didn't Mr Myler raise that with him? The answer was not, in Mr Justice Eady's view, or perhaps the view of any objective reader, satisfactory. What Mr Justice Eady says at the bottom of page 33: "That is effectively a non-answer, from which it would appear that Mr Myler did not consider that there was anything at all objectionable about Mr Thurlbeck's approach to the two women, as he didn't query it at any stage. This discloses a remarkable state of affairs." So it's a matter for others to judge, but arguably quite a strong judicial criticism there.
A. Well, I mean coming from a High Court judge, I think that's quite impressive, but almost sort of more impressive is that a few months later they applied for the title of newspaper of the year based on their groundbreaking year, they said, the Mosley legal: "We believe the impact of our experience and our way forward, following the Max Mosley legal ruling, have helped define the nature of modern tabloid reporting in Britain. The Mosley case itself [et cetera] was among the most fiercely debated stories of 2008." They go on to say what a wonderful job they've done, when a High Court judge has practically told them that they should have done something about this reporter. But I think that's it's completely symptomatic of their entire attitude.
Q. In paragraph 87, his Lordship records the sequence of cross-examination of Mr Thurlbeck on this point. I'm not going to go through it with you, but the upshot was at the end of paragraph 87 that Mr Thurlbeck either didn't understand the point that was being put to him in cross-examination or possibly pretended not to understand the point that was put to him in cross-examination. We're not sure exactly which.
A. Yes. His line was: but I was giving them a choice. But of course that's what blackmailers always do. They give you a choice between doing what they're blackmailing you into doing
Q. Those are all the facts we need, and to be absolutely clear, the judge makes a finding there was no Nazi theme. LORD JUSTICE LEVESON Just before you leave that, there is a point here, because I go back to the words that ring in my ears all the time: culture, practice and ethics. Mr Justice Eady said, when it was being put to him that it's blackmailing, he said: "No, I'm offering to give them something, I'm offering to pay them money for an anonymous interview. I'm offering to pay them, not to take anything from them, so in that sense I'm not blackmailing them at all. That thought never crossed my mind. I'm offering the choice." And the judge goes on: "It seems that Mr Thurlbeck genuinely did not see the point yet it is elementary that blackmail can be committed by the threat to do something which would not in itself be unlawful." So the question that's obviously going to have to be asked, quite apart from any questions to Mr Thurlbeck about it, is whether that state of mind was limited to one reporter or one newspaper or is actually the state of mind of others. MR JAY It's precisely a line which we have in mind, and Mr Thurlbeck has been asked to deal with that. LORD JUSTICE LEVESON Yes. But my point is that it's not just Mr Thurlbeck, because one can reach conclusions about an individual which are all fine and dandy and don't go very far. The question is: is this a pervasive perception? If it isn't, then I want to know it. If it is, then equally. MR JAY Yes. Mr Justice Eady's route to his conclusion as a matter of law, can we see whether we can chart a path through that. Move forward to page 40 on the internal numbering, paragraph 110. He's dealing here with the public interest issue. Was there a public interest to justify the intrusion? He deals first with a point which I'm sure didn't feature in the News of the World's thinking, but whether there was underlying criminality, and he soundly rejected that point. It's not something we need go into, Mr Mosley. He then deals at paragraph 112 with the Nazi theme point. There are two aspects to this. The first aspect is paragraph 123, if I can take them slightly out of sequence, where he finds that there wasn't a Nazi theme and therefore self-evidently if there wasn't a Nazi theme, it could not even classify as a possible public interest. Then in paragraph 112, he considers, well, if I had come to the conclusion there was a Nazi theme, what then? Maybe his conclusion was somewhat equivocal, he didn't have to decide the point, but you may or may not have or the case may or may not have followed a certain path had he made a finding of fact which he didn't. The third public interest issue, and this I think is an important one, is under the heading "Depravity and adultery". It starts at paragraph 124. The argument which Mr Justice Eady was addressing was whether there was a public interest in revealing immoral, depraved or even to an extent adulterous behaviour. His Lordship found that there wasn't, really as a matter of law, in particular at paragraph 127. But his analysis of the Strasbourg cases and a case in the House of Lords called Campbell was that given that there was a human right in play here, namely a right to privacy, and I quote: "It's not for journalists to undermine human rights or for judges to refuse to enforce them merely on grounds of taste or moral disapproval. Everyone is naturally entitled to espouse moral or religious beliefs to the effect that certain types of sexual behaviour are wrong or demeaning to those participating. That does not mean that they're entitled to hound those who practice them or to detract them from their right to live life as they choose." The real point he's making is that, given that we are in the domain of privacy, the law does not concern itself with making a moral judgment as to what occurs within the domain of privacy; my understanding of what Mr Justice Eady is saying. Do you follow that, Mr Mosley?
A. I do. I think that it's entirely reasonable because the problem is that if you could breach privacy merely because you disapproved of what someone was doing or it was not to your taste, well, we would be all over the place because sexual behaviour covers a huge variety of things, and when you start analysing it, what I might like, somebody else might hate, and vice versa, so where would it stop? And the rational thing is to say that provided it's adults and provided it's in private and provided everybody consents, genuinely consents, then it is nobody else's business. I think Mr Justice Eady, if I've understood him rightly, was stating the law to be precisely that. In other words, it's the sort of John Stuart Mill attitude rather than the rather disapproving moralist attitude, and I think the law recognised the John Stuart Mill, that if you're not doing any harm to anybody, you should be allowed to do whatever you like. I think that view is the modern view, but of course once upon a time, people felt completely able to pillory people because they did something of which they disproved or their tastes were different, but we've moved on from that, and the idea that it's in some way the function of the tabloid journalists to pillory people whose tastes may be unusual is completely outdated. If that had not disappeared, we would still be persecuting homosexuals, the gay community would be at risk, or anybody else. So I think he's absolutely right, and I think it's extraordinary that the tabloid press don't recognise that, and of course the truth of it is that they do recognise it, but it doesn't suit them to admit that that is actually how things should be.
Q. Thank you, Mr Mosley. I think one has to be careful to distinguish between a philosophical position, which of course you're quite entitled to give us, and we can agree or disagree with that, and a legal analysis. Mr Justice Eady may or may not share that philosophical view, but all he was doing was saying, analysing Article 8 of the Convention, the concept of privacy means, and this is how the courts have interpreted it, that you do not conduct a moral judgment of what is occurring in the domain of privacy. It is just off limits. Do you see that?
A. I see that completely, and it makes absolute sense.
Q. I know of no case in Strasbourg or domestically which contradicts that part of Mr Justice Eady's reasoning. It is core to one of the key issues involving this Inquiry.
A. I think it is, and if I may say so, had he got that wrong, that would have been a matter for the Court of Appeal. The fact that it didn't go to the Court of Appeal I think strongly suggests that he got it right.
Q. That's certainly a fair point, since we know the case wasn't appealed. The only other point of principle which we gather from this judgment is and this is paragraph 135 the point: who decides the public interest? His Lordship is making it clear, and again this must be right as a matter of basic law, that it's for the court to decide ultimately, if the case comes before the court, and journalists' perception doesn't assist.
A. I think, yes, that must be right as well. LORD JUSTICE LEVESON Well, except that the court has to have regard to editorial judgment and the discretion so far as tastes and modes of expression are concerned. I'm merely just reading on. MR JAY At the end of the day, the Nazi theme allegation having fallen to the ground and the immorality point being a point which could be taken, there was no public interest justification which could be prayed in aid and you won.
A. Yes.
Q. Is that right? But you weren't successful in obtaining exemplary damages. It probably isn't necessary to explore why, but he made findings of fact which meant that whatever the law was on Cassell v Broome and the second head of exemplary damages law, you weren't going to obtain them in these circumstances. In a nutshell, it was that?
A. That's correct.
Q. In terms of damages, the award was ?60,000, which was, perhaps still is, the highest award of damages in a privacy case. Do you happen to know whether it still is the highest?
A. I believe it still is. LORD JUSTICE LEVESON Awarded by a court. MR JAY By a court.
A. I might perhaps add that I think I'm right in saying that since my case there's only been one full privacy trial, and that was the recent Rio Ferdinand case, which he actually lost, but of course people don't sue for the reasons I explained earlier, that you have to be quite eccentric or very determined before you bring a privacy action, because it's lose, lose, lose. LORD JUSTICE LEVESON We don't know how many settled. We don't know how many have settled.
A. No. LORD JUSTICE LEVESON Or maybe you do?
A. No, I don't know, but I think what happens is if somebody find out there's an application for an injunction, which then usually will be granted, if there's a good case, and that's the end of the case. Then, of course, if there's an application for an injunction that fails, then the information will be published and that's the end of the matter, so to speak. So I think somebody being awarded damages, I don't think there has been and certainly none of the settlements that I've heard of, except of course the famous Taylor and Clifford settlements, but that's another matter, and I think there are other reasons there, I've not heard of large sums of money changing hands. LORD JUSTICE LEVESON Yes. MR JAY Mr Justice Eady at the end of his judgment recognises two obvious things. The first is, and this always applies, that no amount of damages can fully compensate you for the damage done. That will always apply, whatever the context. Secondly, he says, in relation to you: "He is hardly exaggerating when he says that his life was ruined." And this is the "genie out of the bottle" point, isn't it?
A. It is because you work all your life to try and achieve something or do something useful, and I'd got to the point when this came out, I'd got to the age of 68 and I had achieved things that I was proud of, anyway, to do with the work I'd been doing with road safety and so on, and suddenly something like this happens and that's what you're remembered for, and however long I live now, that is the number one thing that people think of when they hear my name, and of course it really matters And sometimes, if I could just make this point, it's sometimes said, yes, but it's the same with personal injuries. If you have an injury, if you lose your arm, the courts can do nothing, they can only compensate you financially, and of course that's true. But the difference, and the fundamental difference, is this: that if you could go to a High Court judge and say, "I'm about to have an accident, I'm going to lose my arm, will you please stop the accident, because this is all you have to do, make an order", it's inconceivable that he'd refuse the order. The problem with accidents is that every possible precaution is taken to try and stop them happening, health and safety and so on, but in the end they happen, whereas any revelation of privacy can be stopped by a judge. The only thing that's absolutely essential is that you should know so that you can go to a judge. As soon as you know about it, it goes to an independent right of assessment where the judge will weigh your right to privacy against somebody's right to free speech, or whatever, and he will make a decision. But if they ambush you and they publish and it's out there, no judge on earth can save you. That's really what it comes to. MR JAY The judgment was handed down, there was not an appeal, we know that as a matter of record. There was a public statement or prepared statement delivered by Mr Myler on the outside here accusing the courts of introducing a privacy law via the back door. That's paragraph 50 of your witness statement. But to be fair to Mr Myler, that's his right, isn't it, to comment to the judgment? Would you agree?
A. I think he's absolutely got a right to comment on the judgment.
Q. Whether he should have commented without appealing may be for others to judge, but there was some fairly certainly bad taste, if I may be forgiven for describing it in that way, reporting. Paragraph 52 of your judgment.
A. My statement.
Q. Of your statement, pardon me. Some newspaper couldn't resist the rather feeble crack: "The day freedom got spanked."
A. Yes. I mean, this is sort of typical of there's a steady stream of that sort of thing coming from the gutter press, and, you know, I think one just has to put up with that. Once it was out, they were going to do this, but and it's not just the Sun.
Q. But again, they had the right to comment, and whether they do so in a high-minded way or some different way is a matter for their house style?
A. Indeed. I think it reflects more on them than on me. MR JAY It's 1 o'clock. LORD JUSTICE LEVESON I think that's a convenient moment, but before we finish, you quoted, Mr Mosley, from a document which you described as the News of the World either putting themselves forward for or otherwise being put forward for an award. Is that in the bundle of documents?
A. I'm really sorry, sir, it's not, but I have a copy and we can make copies available. I forgot to put it in. LORD JUSTICE LEVESON No, that's fair enough, but I would like to see it. Just so that I make it clear why I want to see it, because it goes back to whether this is one reporter or, indeed, one journal, but what is happening in the industry as a whole.
A. Indeed. LORD JUSTICE LEVESON That's the point.
A. Sir, as you will see, this makes it clear that they were very proud of what they'd done. LORD JUSTICE LEVESON All right. That's the point. I'd be very grateful if you could make that available. Thank you very much. 2 o'clock. (1.01 pm)


Gave a statement at the hearing on 24 November 2011 (AM) ; and submitted 1 pieces of evidence
Gave statements at the hearings on 24 November 2011 (AM) 24 November 2011 (PM) and 18 July 2012 (AM) ; and submitted 6 pieces of evidence
Gave a statement at the hearing on 24 November 2011 (AM) ; and submitted 12 pieces of evidence


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