Afternoon Hearing on 13 December 2011

Tom Crone and Julian Pike gave statements at this hearing

Hearing Transcript

(1.45 pm) MR JAY Mr Pike, Mr Silverleaf's opinion is dated 3 June 2008. Am I right in saying that in the first instance it was sent to your firm?
A. That's right.
Q. Can you recall to whom you then sent the opinion within your client?
A. Tom Crone.
Q. Pardon me?
A. Tom Crone.
Q. You sent it to Mr Crone. Did you discuss its contents with Mr Myler?
A. No, I don't think I did, no.
Q. Did you discuss its contents with anyone else within News International apart from Mr Crone?
A. No, I don't think I did, no.
Q. So you would not be in a position to assist the Inquiry one way or the other as to who within News International saw that opinion?
A. No.
Q. Is that correct?
A. That's right.
Q. Can I ask you, please, about a separate matter, namely private investigators, please? First of all, in your first witness statement, paragraph 14, which is our page 01313, you say, under paragraph 14: "To the best of my knowledge, the firm has not advised NGN or NI on retaining private investigators in order to source information for articles, nor has it advised either company generally on the legality of paying police officers, public servants et cetera." So you're making it clear there that your firm has not advised News International on retaining private investigators specifically in order to source information for articles; that's correct, isn't it?
A. That's right, yes.
Q. You weren't intending to go any wider than that, were you?
A. No, that's what I said.
Q. In paragraph 15, you say: "Save for that which I set out below, I do not have knowledge as a matter of fact that private investigators have been paid by NGN or NI or of either company having connections with private investigators." Do you stand by that sentence?
A. Yes, I do, yes.
Q. Even in relation to the surveillance of two lawyers which took place in 2010?
A. Correct.
Q. Did you not have knowledge of that at the time, though?
A. I had knowledge that in April 2010 that a surveillance was being carried out on Mr Lewis and Ms Harris. I didn't have any knowledge of the detail of that.
Q. But you did have knowledge, did you not, as a matter of fact, that one particular private investigator, Mr Webb, had been paid by NGN or NI, or have I misunderstood what you're saying there?
A. I think you misunderstand. I didn't know Mr Webb even existed in 2010.
Q. But you knew that two lawyers were under surveillance; is that right?
A. That's right.
Q. Under surveillance by who?
A. By the News of the World. I didn't know who the individual was who was doing it.
Q. But didn't you think that it must have been a private investigator who was carrying out the surveillance in 2010?
A. Not necessarily, no. It could quite easily have been two or one freelance journalist.
Q. Oh, right. Can I just explore that in a little bit more detail, Mr Pike? In April 2010, you were aware that two lawyers had been placed under surveillance for a particular purpose; is that correct?
A. That's correct.
Q. Did you not have more specific information, without knowing the identity of the investigator, that it was a private investigator as opposed to a journalist?
A. No, I don't think, I did, no.
Q. Okay. But it's the sort of task, would you not agree, that a private investigator might be asked to undertake rather than a journalist, since after all it's outside the realm of what a journalist normally does, don't you think?
A. In my experience, it's perfectly possible for both. Freelance journalists are able to carry out this exercise as much as a private investigator.
Q. Paragraph 18. You say: "On a few occasions, the firm has instructed private investigators on the instructions of NGN in respect of matters arising in individual cases in which we have represented NGN." So you're not intending there, are you, to be covering the surveillance of two lawyers?
A. No, it's a general statement that sometimes in cases it's necessary to instruct private investigators to do certain jobs for you. I've explained some of those examples in a later witness statement.
Q. Your second witness statement, paragraph 5, please. I don't have the ERN number for this.
A. It's all right, I have it.
Q. You ask more specific questions about surveillance and then you say in paragraph 5: "For a number of reasons, by the early part of 2010, I had concerns, which had accumulated over the previous months, that Ms Harris and Mr Lewis may be exchanging highly confidential information gained from acting for claimants (and Mr Taylor in particular) in cases against NGN in order to assist other clients in bringing further actions against NGN." In paragraph 6: "I shared those concerns with NGN and in March 2010, I suggested we should consider again whether Ms Harris and Mr Lewis were in a position to continue acting. I also mentioned surveillance." Pausing there, who did you mention surveillance to?
A. That was in an email that I sent to Mr Crone.
Q. I think it's the email of 26 March?
A. That's right.
Q. But I just wanted to check. "I was instructed by NGN on 5 May 2010 to engage private investigators to conduct a review." So of course one is moving forward in time about seven or eight weeks, but you're making it clear there, in the next two sentences, that that was a review by a private investigator of documents which were in the public domain; is that right?
A. Correct, yes.
Q. Let's look at the email of 26 March. We'll come to that in a moment, actually, if you bear with me. Paragraph 7, though. If I could just continue to the end of this witness statement before looking at particular documents. You say: "By that time, I was aware of the fact that NGN had put Ms Harris and Mr Lewis under surveillance. I was not informed of the nature of the surveillance." When were you aware of that fact, Mr Pike?
A. I'm not certain. Probably about the I think it's towards the end of April. 20 April I think was the date.
Q. Were you told what the products of that surveillance were?
A. No.
Q. Were you told anything about the nature of the surveillance?
A. Not at all, no.
Q. Is it your evidence that you were told nothing about who, in general terms, was carrying out the surveillance?
A. That's correct. LORD JUSTICE LEVESON Wouldn't you have been somewhat concerned about that, Mr Pike, to make sure they didn't overstep the bounds of what you considered were appropriate?
A. That's a very reasonable observation in hindsight with what we know now. At the time, I thought it perfectly obvious what the bounds of that investigation was meant to be, and one I'd hoped at the time anticipated at the time that News of the World would be able to carry out what was, frankly, a very straightforward job of surveillance as regards Lewis and Harris. MR JAY I want to ask you a little bit more about that. It's of its nature somewhat unusual for two lawyers to be placed under surveillance; would you agree?
A. I absolutely agree, yes.
Q. And the purpose of doing this and you cover it in paragraph 8: "If it were established by these enquiries that Ms Harris and Mr Lewis were in an intimate relationship, this would not of itself have proved that they had improperly shared any confidential information but it could well have provided circumstantial support in evidence." Let's assume you're right about that just for the purposes of argument. The sort of surveillance, though, which we are talking about here would have to be of a somewhat expert nature, wouldn't it?
A. Not necessarily. I mean, you have to be able to carry out a surveillance exercise. It doesn't necessarily have to be expert.
Q. I just wonder whether it's the sort of thing that a journalist would ordinarily do. Here you have two individuals who, after all, are just lawyers, if they don't mind me putting it in those terms. It's quite a delicate operation. You would expect, would you not, a private investigator to be doing this sort of thing, wouldn't you?
A. Certainly if I was organising it, it would be done via a private investigator, but you know, there are, I think, probably plenty of examples I'm probably not the best person to ask this question, but there are plenty of examples of journalists who will carry out, you know, a surveillance operation to see, you know, where someone's moving. LORD JUSTICE LEVESON We're dancing a bit on the head of a pin, aren't we, Mr Pike, because you did say in your first statement that you would expect the newspaper to use private inquiry agents and indeed for it to be common in the business?
A. Absolutely. But I don't think it automatically follows that on each occasion there's a surveillance exercise that it's always going to be a private investigator. MR JAY Just to explore your state of mind, didn't you think it, at the very least, possible that a private investigator might be carrying out the surveillance exercise?
A. It's certainly possible, yeah.
Q. And is it your evidence that at the time you did not enquire further into what was going on and indeed the propriety of it?
A. That's correct.
Q. Your third witness statement doesn't take the matter much further, but I should ask you, therefore, about the supplemental witness statements of Mr Lewis and what appears at the back of that statement, which is at the back of your tab 2. You'll see there, I hope, the document which is headed, "Report 3". Are you with me, Mr Pike?
A. I am, yes.
Q. Could you help us, please, with the authorship of this report?
A. I can't. The first time I saw this document was yesterday afternoon when it was given to me by the Inquiry.
Q. Thank you. Can I ask you, please, about page 5 of the report on the internal numbering of it, under the heading "News of the World strategy". Maybe to put it in context, forgive me, Mr Pike, if we could go back to the key points on the first page: "The motivation of and association between the key civil lawyers opposing News International is becoming clear. Specifically, the main protagonists are politically motivated with a number being strong Labour party supporters, their cases helping promote their professional advancement. The News of the World is planning to use these tensions and motivations as a way to force compromise and settlement." Did that represent News International's strategy as far as you were aware?
A. I had no knowledge of that whatever.
Q. Okay. I think it would also follow then that your answer to my question on page 5 would be the same. Under the heading "News of the World strategy": "The News of the World is aware of these facts and is planning to put pressure back on the solicitors by revealing these facts and by linking their political affiliations and career benefits from the cases. They plan to do this publicly and through discreet lobbying." Again, that's something unknown to you?
A. Yes, absolutely.
Q. The email we were talking about a little bit earlier on, dated 26 March 2010, is at page 22. If I could ask you to look forward to that, please, Mr Pike.
A. I have it.
Q. It's from you to Mr Crone. Under the heading "Solicitors", top of page 23: "I think we should look again at preventing JMW That's Ms Harris' firm, isn't it? and Stripes [that's Mr Lewis' firm] from acting. They will both continue to be deeply untrustworthy, continuous leaks to the Guardian, and the potential cost-savings of JMV acting did not exactly materialise in Clifford. I think we should go and get an expert review on the question of conflict." Then you suggest going to leading counsel at 39 Essex Street, Mr Treverton-Jones, Queen's Counsel. "I've not mentioned to Taylor's lawyers that Lewis has appeared acting for Phillips, but I strongly suspect Taylor may want to hand this to the SRA complaint he's made against Lewis." So you were aware that Mr Taylor had complained to the Solicitors Regulation Authority about Mr Lewis and that was something that you felt you could contribute to; is that right?
A. Mr Taylor well, his lawyers contacted us partially because he needed to be released from his confidentiality agreement in order to both instruct Brabners and to take his complaint forward. So they contacted us in that context and the clearly we were able to assist them to some extent.
Q. The next sentence has been heavily redacted, Mr Pike.
A. Mm.
Q. "I had a brief word with [redacted names] but we need to put some surveillance onto them." Pausing there, the surveillance was going to be put onto Mr Lewis and Ms Harris, wasn't it?
A. That's right.
Q. And the surveillance you're referring to is surveillance by private investigators or journalists?
A. If it had been done through my office, it would have been via private investigators. If it had been done by News of the World, as far as I was aware, it could have been done either way.
Q. Can we look at a letter you wrote or rather, your firm wrote on 14 September 2011 at page 20 of this bundle. May I ask you to provide the context for this? It's obvious that the author of the letter, who is a fellow partner of yours, has spoken to you for the purpose of providing the information to Linklaters, but can you help us as to why the letter was written?
A. Yeah. I think by the beginning of September and you've got sight of the answer at tab 4 in my bundle there had been some coverage of the fact that I think it was probably the three solicitors, Lewis, Harris and Thompson it had been made public that they were all put under surveillance and therefore we were asked what we knew about that.
Q. Fair enough. This is covering, in the main, the instructions which were given to a firm called Tectrix in May 2010. They covered public domain information, didn't they?
A. That's right.
Q. Can I ask you about one sentence at the end of paragraph 1 of this letter: "Julian Pike's email, dated 20 April 2010, refers to the paper renewing their surveillance and so he believes he must have been told something about the surveillance of Lewis and Harris, but he does not recall whether he was told by Ian Edmondson or Tom Crone." Can you assist us further as to what you might have been told about the surveillance, in particular who was carrying it out?
A. As you've seen, I sent an email on 26 March suggesting that there should be surveillance of the two of them. I know that having seen an email of 20 April, that Mr Crone told me on that date that they were renewing the surveillance. I don't have specific memory for the intervening period, whether or not I had a another conversation with Mr Crone about that surveillance operation, but obviously with my notes mentioning "renewing surveillance", it is perfectly possible that there was a conversation between 26 March and 20 April between me and Mr Crone about the issue of there having been surveillance. I can't specifically recall that, I have no record of a conversation during that period dealing with that point, but it's certainly possible.
Q. Did not Mr Crone tell you words to the effect that the surveillance hadn't in fact yielded anything of interest?
A. I don't specifically recall that, no.
Q. There's a slightly earlier letter I need to refer you to as well, Mr Pike, at page 18 of this bundle, 7 September 2011. You can see from paragraph 4 at page 19 it being confirmed and reiterated: "The only investigations that Farrer commissioned were in May 2010." Those are the Tectrix investigations of public domain documentation?
A. That's right.
Q. But paragraph 7, please. "We advised [that presumably is Farrers advised] Tom Crone in making the enquiries early in 2010. When instructed by him to do so, we reported back to him on the information provided by the PI." Could you assist us as to what that might be a reference to?
A. I think that's a reference to what you've seen already. You've got the email of 26 March and we then I appreciate it might seem to be a relatively long period of time. An awful lot was happening between sort of March and beginning of May, but beginning of May, we are given those instructions to proceed with those limited enquiries and we make those searches. And as you know, I think we reported back about ten days or so. Maybe not quite that long, but a few days later after the enquiries had been made.
Q. We know that you obtained advice on behalf of your client from leading counsel on 13 May 2010?
A. That's correct.
Q. The attendance note we see at page 7. Did you seek advice from him as to the propriety of any surveillance?
A. He was aware that I think it's right in saying he was aware that surveillance had been carried out, but certainly there was no suggestion whatsoever from him that what was being undertaken was wrong, as it wasn't.
Q. So is it your evidence to this Inquiry that you were aware, in general terms, of the surveillance being undertaken this is before the surveillance your firm itself commissioned on 5 May 2010 but you weren't aware of who was undertaking it. In particular, you weren't aware that a private investigator was undertaking it as opposed to a journalist?
A. That's correct.
Q. For your own peace of mind, at the very least, did you not enquire as to who was undertaking the surveillance?
A. I don't think I did, because I had hoped that News of the World would be able to carry out what, to my mind, was a fairly straightforward exercise. Unfortunately, history has shown that that has not turned out to be correct.
Q. From your own experience in litigation or generally, are you aware of cases where, in the course of continuing litigation, lawyers have been put under surveillance, namely the other side's lawyers?
A. No. I mean, we were you haven't asked me about what was behind all of this, in that here we were faced with what we perceived to be significant breaches of confidentiality over a significant period of time and the issue was we wanted to look at getting to the bottom of that and dig around and put together a jigsaw of what was going on. In that context, it was a perfectly legitimate exercise to carry out the enquiries that were carried out through the firm of investigators that we instructed, and in terms of carrying out the surveillance operation on Mr Lewis and Ms Harris, that also was a perfectly legitimate exercise to do. Carrying out exercises in relation to Mr Lewis's family I could not condone at all because it served no purpose. Entirely irrelevant.
Q. In order to reach that judgment that it was a perfectly legitimate exercise, wouldn't you have to know more about the nature of the surveillance which was being undertaken and the degree of intrusion which it might entail?
A. No. If it was being done properly, then you wouldn't it wouldn't be a hugely intrusive exercise at all because the individuals involved would be only on public property, only carrying out surveillance from that vantage point. They're not going, for example, into somebody's house or into a building. So I I have no concerns about instructing a firm of investigators to do that exercise. I agree, clearly things have gone beyond that which was legitimate, but there was a perfectly legitimate exercise being carried out and clearly someone has strayed beyond that remit.
Q. But you're investigating two lawyers. The purpose of the investigation is to see whether there is a relationship between them. Although the investigation might be carried out only from public property, it still carries with it serious Article 8 implications at the very least; wouldn't you agree?
A. Article 8's not an absolute right, I have to say. That has to be balanced with other interests. I say now that if I was faced with the same circumstances today, I'd have very little trouble doing it again because it's a perfectly legitimate exercise.
Q. But in order to ensure that it's being carried out within reasonable constraints, you would want to be satisfied of the instructions given either to the journalist or the investigator to make sure that they kept within proper boundaries. Wouldn't you agree with that?
A. Well, that's easily said now, but I at the time, I would have and I did expect the News of the World to be able to carry out a very straightforward surveillance exercise without straying from what they were permitted to do.
Q. Is it your evidence that you were unaware until it was quite widely publicised two months ago that Mr Webb was systematically carrying out surveillance on behalf of News International and NGN?
A. Correct. MR JAY Thank you. Those are all the questions I have for you, Mr Pike.
A. Thank you. MR SHERBORNE Sir, there is one matter I would like to explore with Mr Pike in relation to a document he has just been shown. I don't know whether, sir, you will give me permission to do so. LORD JUSTICE LEVESON Which document is that? MR SHERBORNE It's the attendance note of the conference with Mr Treverton-Jones. LORD JUSTICE LEVESON And you want to analyse page.? MR SHERBORNE I obviously don't have the bundle that you have LORD JUSTICE LEVESON No, no, the page within the document. MR SHERBORNE The page within the document is it's the first page, the front page, the record of attendance. LORD JUSTICE LEVESON Yes. MR SHERBORNE I don't know whether it's possible to have the top of that document on screen so everyone can follow. It's, I think, page 7 of tab 4 of Mr Pike's bundle. I don't know whether the technician has the technician doesn't have the bundle. Sir, do you have a copy in front of you? LORD JUSTICE LEVESON I do. I don't particularly want to give you my bundle because then I don't have it. MR SHERBORNE I can hand up a clean copy, actually. LORD JUSTICE LEVESON All right. MR SHERBORNE It's just the top of the page. (Handed) It's just the top part.
A. Thank you very much. Questions by MR SHERBORNE MR SHERBORNE Mr Pike, this is an attendance note made by your firm on 13 May; is that right?
A. Correct.
Q. If we just look at the top of that, we have a client there. That's your client, isn't it, News Group Newspapers Limited?
A. That's correct.
Q. Can you help us with the number there, 8085? What does that refer to?
A. That's the client number.
Q. That's an internal reference to a client number? I see. Then we look at "matter" and we have a number of names there. We have, for example, Sky Andrew. That was the claim brought by Mr Andrew, Sol Campbell's agent, against News Group Newspapers; is that right?
A. That's right.
Q. That's a claim for the unlawful interception of his voicemails?
A. That's right.
Q. And Vanessa Perroncel, similarly a claim against your client?
A. That's correct.
Q. And Nicola Phillips?
A. I should add that in relation to Vanessa Perroncel, that's not part of the phone cases case series, as it were.
Q. But she made a complaint about that?
A. No, she didn't. She made a complaint about a breach of privacy which did not involve phones.
Q. But it was made at that time?
A. The claim was alive at that time, yes.
Q. And Nicola Phillips was also a complaint about voicemail interception?
A. Correct.
Q. And Andy Gray?
A. Yes.
Q. David Davies?
A. Yes.
Q. George Galloway?
A. Correct.
Q. Kelly Hoppen?
A. Correct.
Q. Let me ask you about the Sienna Miller reference, if I may. It's right, isn't it, that Miss Miller we know issued proceedings against News Group Newspapers for the interception of her voicemails as well?
A. That's right.
Q. And you were involved as acting on behalf of News Group Newspapers in that litigation, weren't you?
A. That's right.
Q. Can you recall that the first step taken in Miss Miller's action was a Norwich Pharmical order, wasn't it?
A. I didn't know that at the time, but I learnt that it was what happened, yes.
Q. And that was a route that some of the hacking victims took, which was to apply to the Metropolitan Police for an order and not to notify News Group Newspapers before doing so?
A. I think that's the route taken by one or two, yes.
Q. And once the document had been obtained, then a claim was made, a letter of complaint was sent to News Group and then proceedings or a claim form were issued against News Group Newspapers; is that right?
A. Correct.
Q. Were you aware that the application for the documents from the Metropolitan Police was made on 1 June 2010?
A. I wasn't aware of that at the time, but I subsequently became aware of that, yes.
Q. Are you aware of the other features of that application, namely that it was made anonymously?
A. Um
Q. The letters "AZP", do they ring a bell?
A. No, they don't. I don't think so.
Q. Will you accept from me it was made anonymously?
A. Okay.
Q. And it was heard in private?
A. If you say so. I wasn't there.
Q. That application was made on 1 June. That was some three weeks after this meeting?
A. Okay, yeah.
Q. And as far as News Group's concerned, do you recall that the first time any mention was made that there was a complaint by Miss Miller was on 6 September, some four months later?
A. That may be right. I haven't researched this.
Q. Would it be helpful for me to show you the letter before action that was sent by
A. I'm prepared to accept it if that's what you say, yes.
Q. You see, what I don't understand, Mr Pike, is how, on 13 May, did you know about a claim from Miss Miller that didn't even exist at the time?
A. I don't know the answer to that question. I could go back and see if I could find the answer to it. Clearly there's a reason for it.
Q. Are you saying that you really have no recollection as to how Sienna Miller's name and a claim was referred to in the record of attendance on 13 May?
A. As I just said, I don't have a recollection, sitting here today, as to why that's the case. LORD JUSTICE LEVESON Presumably it's not terribly difficult to go back to file 730 and see where it starts?
A. I'm sure I can, yes. LORD JUSTICE LEVESON Right. MR SHERBORNE Perhaps you can do that, Mr Pike.
A. With the permission of Linklaters, I will. MR SHERBORNE You see, the point is that at that time the only people that will knew about the fact that Miss Miller's voicemail had been hacked into and that she was going to complain about it were Miss Miller's solicitors and the police.
A. I don't know the answer LORD JUSTICE LEVESON We'll have to see, won't we? Let's find out the answer.
A. Right. MR SHERBORNE I have no further questions. LORD JUSTICE LEVESON Thank you. Mr Rhodri Davies, is there any issue of privilege? I'm not so sure there is, as to this. MR DAVIES I can't imagine that there can be privilege. LORD JUSTICE LEVESON Right. You're not very far away, Mr Pike, in Lincoln's Inn Fields.
A. That's right. LORD JUSTICE LEVESON I would be grateful if you could do that.
A. Can I raise one matter? LORD JUSTICE LEVESON Please.
A. Can I take you to the witness statement of Charlotte Harris, page 3, paragraph 19. LORD JUSTICE LEVESON Yes.
A. In that paragraph, Ms Harris has made a number of what could be described as either serious or very serious allegations against myself in terms of what I have supposedly said to her on the telephone and in a letter. In relation to the letter, she suggests that I said to her in that letter that she would be committing career suicide. I have had the opportunity since this witness statement was served on me to go and look at the correspondence to the relevant file and that claim as set out in that statement is untrue. I would invite the Inquiry to suggest to Ms Harris that she goes back to look at the file and correct her evidence. I have the letter. I know exactly what it says. It does not say that of her. MR JAY I think Ms Harris withdrew that part of her statement. LORD JUSTICE LEVESON Is that right? Well, I seem to be resolving many issues between many people during the course of this Inquiry and it's only right that professional people have the chance to do that. You have the letter to which you think she's referring?
A. I do. LORD JUSTICE LEVESON Does it offend any privilege that you owe to anybody to let us see it, or more particularly also to let Mr Sherborne see it?
A. I'd obviously have to ask Linklaters if they're happy for well, if News International are happy for this letter to be released. The alternative, of course, is Ms Harris can correct her evidence. LORD JUSTICE LEVESON I don't care how we do it. I think it's obviously sensible just to spend no more than a few minutes on it. What's the position, Mr Sherborne? MR SHERBORNE Sir, the version of Ms Harris's witness statement I have doesn't contain any reference to that. Mr Pike obviously has a different version. MR JAY I think it's an earlier version and that's why LORD JUSTICE LEVESON What I am looking at is a signed version, so
A. Dated 28 MR SHERBORNE I'm looking at a signed version too, and mine doesn't have it in it. Do you want to exchange versions? LORD JUSTICE LEVESON No, you can see mine. I'm perfectly content to accept MR BARR Sir, since I called Ms Harris, I think I can clarify this. There was the signed version you have. There was a subsequent signed version which omitted the allegation about the letter, and that subsequent version was the one which went into evidence, sir. LORD JUSTICE LEVESON Very good. So it is withdrawn, Mr Pike.
A. And is the allegation also withdrawn about the telephone conversation? LORD JUSTICE LEVESON You had better let me see the original statement. Thank you very much. It's merely the last two sentences. So I record that you challenge that which Ms Harris says?
A. I do. She's referring to a different case and the conversation relates to a conversation about her client, not about her. LORD JUSTICE LEVESON Right. Thank you very much. So there's just one bit of information we'd like from you and that relates to this title.
A. Yes, that's fine. LORD JUSTICE LEVESON Thank you very much indeed. Thank you, Mr Pike. MR JAY Before I call the next witness, Mr Crone, I'd just like to check that the bundles are in order. If I could just be permitted a minute or so to do that. LORD JUSTICE LEVESON Yes, certainly. Does that mean you want me to have a break? MR JAY Please. LORD JUSTICE LEVESON I can do that. Mr Sherborne, you've heard what Mr Pike says about the conversation. I don't think it's a matter for me to go further in at all and I don't intend to do so. It's a matter between her and him. But it might be sensible that she checks that her memory is as she says rather than as Mr Pike says. But it's a matter for her and for him. (2.28 pm) (A short break) (2.35 pm) Mr THOMAS GERALD CRONE (sworn) Questions by MR JAY MR JAY Please sit down Mr Crone. Your full name, please.
A. Thomas Gerald Crone.
Q. Thank you. You have provided the Inquiry with two witness statements. The first is dated 30 September of this year, and it has your signature and a it doesn't actually have a statement of truth, but do you confirm that this is your truthful evidence?
A. Yes.
Q. The second one was provided pursuant to a notice under section 21, subsection 2 of the Inquiries Act. It hasn't, at least in the version I have seen, been signed by you, but again, is this your evidence, Mr Crone?
A. It is my evidence. There's one correction I need to make in it, I think, the second one.
Q. Could you identify that for us, please?
A. It's in relation to the passage about the meeting with Mr Lewis, where I went with him to a restaurant in Fetter Lane and Mr Lewis had previously given evidence at the CMS committee, I think, to the effect that Mr Pike was supposed to be accompanying us to that lunch and he couldn't make it. I, in my evidence, say Mr Lewis is wrong about that and Mr Pike was there. He is right; I am wrong. I apologise. There was a third person. LORD JUSTICE LEVESON It's (f): "As far as I was concerned, the lunch was purely a social occasion. Mr Lewis' recollection that Mr Pike was not there was wrong; he was." So I just need to cross out that sentence?
A. Yes. There was a third person, but it wasn't Mr Pike. MR JAY Thank you, Mr Crone. First of all, I'm going to take you through your first witness statement, highlight matters and ask some supplemental questions before I move on to your second statement. In your first statement, you tell us who you are, that you were called to the bar in 1975. You practised for five years then you moved to the legal department of the Mirror Group. In 1985 you moved to NGN, and you became legal manager of News International in 1991; is that correct?
A. I think 1989 is when I became legal manager of did you say News International? Oh sorry, I wasn't listening. Yes, you're absolutely right.
Q. Yes. You occupied that position until this year; is that right?
A. Yes.
Q. In the period with which we are concerned, your responsibility was the News of the World primarily and someone else was responsible for the Sun; is that right?
A. I would say my responsibility was for the Sun and the News of the World. I spent more time on the News of the World because my deputy tended to spend more time on the Sun.
Q. Fair enough. As for your role within News International, you tell us about that in paragraph 2 of your first statement. It covers both prepublication issues and post-publication issues, including, of course, litigation; is that right?
A. Yes.
Q. Can I ask you, please, about paragraph 3? The question related to the legality of methods of information gathering. You say: "I am answering this question on the basis that the relevant legality relates to compliance with criminal law. I can remember very little by way of detail over such a long period, but during the 31 years I was a newspaper lawyer, there were occasions when my advice was sought by a journalist on the legality methods of receiving or obtaining information. Since these conversations were in the context of advising an individual about his or her potential legal liability in specific situations, I believe them to be covered by privilege." I think I can ask this general question, though, Mr Crone: did you ever advise News International or its employees on issues of phone hacking?
A. On one occasion. Well, actually, probably on several occasions after the arrests, one occasion before.
Q. The arrests were on 8 August 2006; is that correct? I can't ask you about a specific case because that is covered by privilege, but I can ask you when that occasion was, please.
A. I'm concerned about this, sir, because I am sure it's covered by privilege. I was asked for advice. I went away and did some research and I came back and gave some advice about specific matters. If I give the date or the time I gave the advice or to whom or the content, it seems to me I am encroaching on areas I shouldn't LORD JUSTICE LEVESON If you gave to whom or the context, you most certainly are infringing on legal professional privilege. I don't immediately see why you are if you're merely asked for the date, by which I suppose Mr Jay means the year, to get some context?
A. Because, I would contend, there are various people under arrest at the moment. Some of those people were around in certain years and some of them were not around in certain years, and it seems to me that at the very least I think I would be giving a fairly decent clue as to who I might have been giving the advice to if I gave the time. LORD JUSTICE LEVESON I'm not so sure you would, actually, because it could be anybody from a junior journalist up to editor-in-chief. Mr Jay, help me on this. MR JAY Sir, you're right. I can't obviously proceed down a certain road but the innocuous question I have posed, in my submission, can be asked. LORD JUSTICE LEVESON Just pause. Mr Rhodri Davies, I appreciate that this may or may not be relevant to you, and it may or may not be a former employee, an employee it obviously was a former employee because he's always worked for you. MR DAVIES Yes. LORD JUSTICE LEVESON I don't want to step on anybody's toes but I just don't see how identifying a year would help identify a person or a situation at all. But I'm anxious for a contrary argument, if there is one. MR DAVIES From a standpoint of legal professional privilege, I do not think that I could object to Mr Crone answering as to a year. It seems to me that the point Mr Crone has raised is a slightly different one, which is that his answer may not breach privilege but it may incriminate someone else. I'm in no better position to answer that than anyone else. LORD JUSTICE LEVESON It's pretty useless information, given that there are a vast array of possibilities. I'm not going to ask him the question he was asked and I'm not going to ask him what the answer he gave. MR DAVIES No. As I say, I don't think I'm in any better position than several others here to comment on the situation. LORD JUSTICE LEVESON No. I know you've been particularly concerned, legitimately, properly, about your ex-clients. MR DAVIES Yes. LORD JUSTICE LEVESON Thank you very much. I'm going to make one other enquiry. Mr Garnham, does this cause potential difficulty? MR GARNHAM My answer might. LORD JUSTICE LEVESON Right, then don't answer. Mr Crone, I do not believe that the year that we're talking about, without identifying the context or anything about it, can possibly infringe professional privilege.
A. I was thinking of the individual rather than the company, sir. LORD JUSTICE LEVESON Yes, but I'm not going to ask you who. And presumably, as you've made it clear, your advice was sought by journalists, in the plural. That's not just restricted to senior members of the editorial staff, I suppose, generally?
A. That is true, yes. Sorry, was that a question? Yes. LORD JUSTICE LEVESON Yes. So
A. It's a I'm sorry, sir. My thinking on this, which I'm subject to your ruling. It's a game of 20 questions and every one chips away at the privilege. LORD JUSTICE LEVESON But actually Mr Jay has only asked one. I appreciate that he might ask a second I'm not saying he will and I am prepared to consider each question on a question by question basis. So far, so good. I understand the point you're making. I hope I have made it clear that I am anxious to protect the integrity of the investigation and not to impact adversely on the rights against self-incrimination the witnesses have. I do not believe that anything you say in answer to this question could possibly be used in relation to any one individual. That's how I see it.
A. You will no doubt rule, sir. I'm just foreseeing the next question will put me in even bigger trouble and it will go definitely towards providing all the clues. LORD JUSTICE LEVESON Right. What is the next question, Mr Jay? MR JAY The next question is not any specific question. LORD JUSTICE LEVESON I promise you, it will be a specific question but it's not directed to this topic? MR JAY It isn't directed to this topic, save it will be to ask Mr Crone about whether he looked at the Regulation and Investigatory Powers Act 2000 in the context of any advice he gave. LORD JUSTICE LEVESON Right. So I don't think you need worry about the next question, because that's
A. Perhaps the one after that, sir. LORD JUSTICE LEVESON Mr Crone, we can play this game all afternoon.
A. No, I'm not playing a game, I promise you. LORD JUSTICE LEVESON No, I understand that and I'm not suggesting you are, I really am not. I understand the point very clearly and I do not intend to prejudice any investigation. Once during the course of this Inquiry a question has slipped under the wire of my thinking, and I don't intend to let it happen again. Right, you can answer this question, and then we'll think about the next question.
A. The date was the year was 2004. LORD JUSTICE LEVESON Thank you. MR JAY Thank you. In the context of any advice you gave, did you look at the Regulation and Investigatory Powers Act 2000?
A. Yes.
Q. In the context of this general question, have you given advice to journalists at the News of the World in relation to surveillance?
A. No.
Q. Thank you. LORD JUSTICE LEVESON While we're on the topic, what about the Data Protection Act?
A. Yes. LORD JUSTICE LEVESON Consistently throughout or
A. I was once asked to put together a note on what the law of data protection meant in relation to journalists, working journalists, and I did so. I can't remember exactly when that was. I think I've seen it in the bundles somewhere. I may be wrong. LORD JUSTICE LEVESON All right. MR JAY I was going to ask you about Operation Motorman. When, if at all, were you made aware of that?
A. I think when Whittamore, the private detective in the West Country, was arrested, I was made aware of that.
Q. And when were you made aware that some of his customers, if I can so describe them, were employees of NGN or NI?
A. After the arrest. But not in any great detail, I have to say.
Q. Were you asked to advise at any stage on data protection issues, including any possible criminal offences?
A. You mean in relation to Whittamore?
Q. In relation to Operation Motorman, yes?
A. I don't think so.
Q. Okay. The next page of your witness statement I'm afraid the paragraph numbers have gone slightly awry. On our numbering, it's page O2/745.
A. That's the one I have.
Q. Thank you. The question you were posed related to the legality of paying public servants, including police constables, for information either in cash or in kind. You give the same sort of answer here as you gave in relation to illegal news-gathering. You say: "I can remember very little by way of detail over such a long period, but during the 31 years I was a newspaper lawyer there were occasions when my advice was sought by journalists being offered a story based upon information which came directly or indirectly from a police officer or public servant and that person, ie. the source, was looking to be paid." Can you tell us, please, when those occasions were?
A. I don't remember any of the specific ones. I just know that I've encountered the situation.
Q. Approximately when?
A. Over throughout my career, actually.
Q. Approximately how many occasions then?
A. I couldn't hazard a guess. Very infrequent. Probably less than one a year. People come to newspapers looking for money and you don't necessarily know who they are until one deals with them and then they aren't necessarily coming directly but they're sending someone else in who is representing them and layers unfold and you find out what's going on and you realise that it's a situation where someone's looking to be paid who fits into one of those categories.
Q. And on such occasions, can you assist us, please, as to what your advice was?
A. Consistently that it would be a criminal offence to pay someone in public office for information which they shouldn't have been passing out.
Q. Was that advice ever put in writing?
A. Not that I'm aware of, no.
Q. Can I move on to question 3 at the bottom of the page, where we're dealing with phone hacking. So we get our bearings, am I right in saying that from August 2006, you were giving general advice to News International relating to the Goodman/Mulcaire matter?
A. Yes.
Q. Am I also right in saying that you attended the sentencing hearing before Mr Justice Gross on 26 January 2007; is that right?
A. Yes, yes, I did.
Q. And then in the civil litigation that ensued, you took a close interest in the course of that litigation; is that also right?
A. I was handling it as the lawyer inside the company until until early 2011.
Q. Of course I'm going to come back to that but for the moment we're dealing with general matters. On the next page, under paragraph 8, you were asked about corporate governance. Can I ask you this, though, the second paragraph under that rubric: were you the person who dealt with the Press Complaints Commission complaints?
A. No.
Q. Can you tell us who did?
A. That would normally be the managing editor of the newspaper, on both titles, the Sun and the News of the World. I might have had occasional dealings but it wasn't my responsibility.
Q. Given the importance of such complaints and one imagines the importance of the Press Complaints Commission why didn't you have any direct dealings with those matters, save on exceptional occasions?
A. I think weight of work on my side, certainly. I think there was plenty to get on with and occupy all of my time without having to deal with the PCC complaints as well. It's also not for me to allocate that I do this or I do that. It's usually someone else. The editor would probably have a say on who he wants to do the PCC work and it certainly became the norm for a long time that that was always the managing editor.
Q. One possible reason might be that PCC complaints were not taken very seriously and therefore why trouble the main in-house lawyer; is that fair?
A. No, it's not. I think they were taken very seriously. In fact, I think when there was a PCC complaint, the journalist usually asked more of the managing editor than when there was a legal complaint being asked of me or the outside lawyers.
Q. Is that really the position, Mr Crone?
A. Yes. That's my experience.
Q. Okay. I'm not going to alight on all these answers, but can I ask you, please, about question 11 at the bottom of this page and the answer you give at the top of the next page, O2747. You say: "After the arrest and conviction of Clive Goodman, a new editor, Colin Myler, came to the News of the World and introduced a number of measures to tighten controls and procedures in order to eliminate illegal or unethical practices." What practices were you referring to there apart from phone hacking?
A. I'm probably looking at it in the context of both Motorman and phone hacking.
Q. Motorman
A. Motorman being data protection offences.
Q. But Motorman had been known about since 2003 and Mr Myler doesn't arrive until early 2007. Are you saying nothing had been done about Motorman between those dates?
A. Well, I can't remember when I did my note on data protection. I'm sure there had been legal lecture courses along with other journalistic training courses internally where the data protection issues were addressed. The Motorman publicity from the Information Commissioner was issued in 2006 in two reports, I believe. So it was reasonably contemporaneous at the time of the Goodman/Mulcaire arrests and the subsequent arrival of Mr Myler.
Q. As far as you're aware, was any internal investigation conducted into the Operation Motorman matters?
A. I am not aware of one. There may have been one via the managing editor's office. I certainly wasn't involved in one.
Q. Thank you. Reading on in your statement: "I'm aware that all editorial staff were written to. Cash payments were virtually eliminated, a fresh programme and training days were initiated and the use of private detectives was forbidden." Cash payments for what are were virtually eliminated?
A. I think just cash payments.
Q. But over what range of activities? What did they relate to?
A. I think it's self-defining, actually. Without trying to be clever in my answer, I think cash payments were reduced to an absolute minimum. For whatever. Payments for stories, pictures, services. Those are probably the three categories.
Q. Can we look at those categories, one by one. Cash payments for stories; in other words, for tips. Cash payments to legitimate sources surely continued after 2007, didn't they?
A. My understanding is that they were reduced hugely. So there were still some of them but it was a lot less than previously had been occurring. But payments were not really my area. I'm not familiar with them at all. I've read subsequently what Mr Myler has said about them and I think Stuart Kuttner has produced something in writing or given evidence about them, but it's not something I'm very aware of.
Q. But cash payments might have legal ramifications which would touch on your area, wouldn't they?
A. Even when they did have a legal ramification, then it would touch on my area, but I can't remember, apart from the Mulcaire payments, where that became a serious issue. I think the Mulcaire payments were cash, from memory.
Q. ?12,300 was cash.
A. That's right.
Q. There's an issue as to what the ?104,000 related to and Mr Silverleaf touches on that in his opinion, but we won't discuss that now; we'll discuss that later. The use of private detectives was forbidden. Was that really the case?
A. Well, as I understand, that was the case. I mean, I didn't issue the edict. It with came from Mr Myler, I believe, or from the managing editor via originally from Mr Myler.
Q. I think my question was more: weren't private detectives used after 2007?
A. Not to my knowledge, no.
Q. Okay, we'll be looking at that in due course, Mr Crone. At paragraph 12, you're dealing generally with responsibility for checking sources of information. I think what you're really saying here is that prime responsibility would lie with the reporter, but the editor as well would have a responsibility for undertaking necessarily checks in appropriate cases to, as it were, check out the story; is that correct?
A. I think the responsibility went up the food chain, if I can use that phrase. The reporter, because he had direct contact with whoever the story was about or wherever the information was coming from, had a major responsibility. Those immediately in charge of him, who would be the desk heads, had a large responsibility because they were second in line of being most familiar with the story. And then after that, it would ultimately get to the editor via the production staff, who had to edit the story, subedit the story, place it in the paper, et cetera.
Q. On occasions when you were brought in to, as it were, check out a story, is this right: were you concerned to know the identity and quality of the source?
A. If the story had legal dangers, then the source of the story, the evidence in support of the story, was a major factor, clearly. So I would be interested, yes.
Q. How did you know whether or not a story had legal danger, apart from using your instinct and experience?
A. Just using my instinct and experience. If it makes allegations which are libellous, then you need proof to back up the story.
Q. May I ask you, please, to tell us in general terms as to the steps you might take to check out a story. Did you on occasion listen to tapes or read transcripts of recorded conversations?
A. Yes.
Q. Was this both before publication and, if necessary, after publication if the matter was turning litigious?
A. Yes.
Q. Did this at any stage cover stories which might have been the result of phone hacking?
A. No, I don't think they did. I'm trying to remember about the one incident which we're inevitably going back to. I don't think it is.
Q. In an inappropriate case, would you ask to know or would you seek to know the identity of the source?
A. I would always like to know, but if the journalist made it clear that it was a confidential source and he was deeply unhappy about revealing it or refusing, then I wouldn't necessarily press for that. And you would try and assess the story based upon previous information from the same source, according to the journalist, and extraneous and independent corroboration.
Q. Is the thought process you're indicating by giving that last answer one which an editor would naturally share?
A. I think it's it is an experience and instinctive thing and most editors have been in the job for a long time and will share those thoughts.
Q. Thank you. Let me ask you about paragraph 17 on page 02749, which was another question about private investigators. The question was whether, to the best of your knowledge, the newspapers owned by News International used, paid or had any connection with private investigators in order to source stories or information. You say: "I have no direct knowledge about the use of or payment to private investigators for these purposes, apart from what I've raid in connection with Operation Motorman and what has come out since 2006 in relation to Glenn Mulcaire." I miss out irrelevant words. Are you saying that you were unaware that private investigators were the sources for some of News International's stories?
A. The only ones that I can remember are Mulcaire, who I found out about afterwards, and Operation Motorman, which I found out about afterwards.
Q. Might I suggest to you, Mr Crone, many stories were obtained as a result of the activities of private investigators. They were then turned into stories by journalists and you must have been aware of that, mustn't you?
A. No, I wasn't, no. I'm not even sure it's right, but maybe you can tell me otherwise.
Q. In paragraph 18, you were asked a more specific question: "What was your role in instructing, paying, advising on or having any contact with such private investigators and/or external providers of information, including advising on these activities?" You say: "I cannot remember details but on a handful of occasions over the years, we, ie usually outside lawyers and I, have agreed to commission private investigators to check certain matters relevant to the defence of litigation arising post publication. To the best of my knowledge, this did not involve any illegal activities." Could you help us about the nature of the certain matters which you're referring to there and which needed to be checked?
A. I think post-publication litigation probably nearly always, I'd have thought, for libel where we needed to acquire or substantiate the evidence in support of our story.
Q. Were you intending to cover there the discreet surveillance of two lawyers last year?
A. No. It didn't occur to me when I was answering that question, no. Let me just read the question and answer. No, absolutely not.
Q. Why didn't you mention those two lawyers in answering that question?
A. The role I played and the knowledge I had in relation to the two lawyers is that I went to the in the context of the evidence you've heard from Julian Pike today, which actually were from my memory, there were quite a few conversations about: can we get evidence that what was being strongly suspected by Mr Pike and by me, whether that could be proven. I had a lot of conversations with him. It kind of went away for a short while, then blew up again in early 2010. Mr Pike came back to me and said, "Something's got to be done about this", and it wasn't actually just sharing or exchanging of confidential information to help other cases to which the information did not attach. My memory is it was also of leaking some of them were pretty blatant leaks of confidential information to its press.
Q. I'm not sure you've answered
A. There was one example when, I think, the Guardian Online published the contents of one of our confidential documents no, I think it might have been one coming in from the police. I can't remember the exact document. But the Guardian Online had published it before Farrers sent to me and I don't think I think it was something lodged at court actually. I don't Farrers had even lodged it at court before it was on the Guardian Online, which means it had to come from one source and one source only.
Q. That answer is all an answer to a different question which I hadn't asked. Just wait, Mr Crone. The question which you've answered would be to the question: why did you instruct private investigators? But the question I asked was: why hadn't you included a reference to private investigators in your answer to paragraph 18? Do you see the difference?
A. Yes, but I was moving on.
Q. Can you keep to the question?
A. Yes, I'll try. When it blew up again at the beginning of 2010, I think Mr Pike mentioned surveillance to me. I had never been particularly keen on surveillance, especially private investigator surveillance, for a number of reasons. One is that private investigators were not quite banned but there were strictures internally about using private investigators when Mr Myler came in, and I think I suggested this is my memory that since the News of the World news desk seems to be rather good at producing evidence that people are having relationships let me add legitimately, as far as I was concerned, not talking about phone hacking that it might be worth asking the news desk whether they could have a look at the people in question to see whether they could establish the nature of the relationship. And that did not involve private investigators.
Q. Can we be clear about this, Mr Crone? We're going to cover this in some detail later on but we need to establish what your evidence is now. Is it your evidence that private investigators, in the strict sense of that term, were not engaged in relation to the surveillance of Ms Harris and Mr Lewis; rather it was journalists at News of the World?
A. My understanding and that's all I can speak to at the time was that it was being conducted by the news desk. I knew that Steve sorry, Derek Webb, I think, was mentioned by the news desk to have a look at the situation, and as far as I was concerned, he was a freelance journalist.
Q. He wasn't a private investigator?
A. I didn't know him as a private investigator. I know him as well, I didn't know him at all, really, but I'd heard the name before and I'd understood that he was a freelance journalist.
Q. Are you sure about that, Mr Crone?
A. Yes, I am.
Q. So you were drawing a fine distinction in answering paragraph 18 between private investigators in the strict sense of the term and a freelance journalist otherwise; is that correct?
A. I don't recognise it as a fine distinction. My understanding is that a request to the News of the World news desk meant a reporter, albeit a freelance reporter, was having a look at the people as requested.
Q. We're going to look at that in more detail in due course. As you have rightly reminded us, the edict from Mr Mile was that the use of private detectives was forbidden. You've told us that in answer to paragraph 11, haven't you?
A. I might have overstated it because I've seen Mr Myler's evidence and I'm not sure "totally forbidden" is how he puts it, but I think there might have been exceptional circumstances where they might have been used, but generally not allowed.
Q. Of course, in answering paragraph 18, you have used the term "private investigators", not "freelance journalists", haven't you?
A. Well, it's the phrase in the question. I'm just repeating what the question says.
Q. Okay. Your second witness statement. LORD JUSTICE LEVESON Other providers of information might very well be freelance journalists, mightn't they?
A. If that was right LORD JUSTICE LEVESON I'm only
A. No, no, I accept what you say but if that was right and I was being asked to I mean, freelance journalists are used every day of the week, basically, in newspapers and sometimes they would be used to do odd jobs for the legal department, who need things checking out. I mean, the list would have been hard to remember and everything, and could have run on for a long time. I didn't think that was what was being asked, I must say. LORD JUSTICE LEVESON I see. MR JAY I am going to come back to that, Mr Crone. Can I ask you, please, to look at your second witness statement now. You start off by raising some general questions. I'm afraid the version I have has not been paginated, but I'm looking at the second page. LORD JUSTICE LEVESON In answer to which page? MR JAY It's (a). The question relating to page 69 of Mr Burden's book. LORD JUSTICE LEVESON All right. MR JAY What Mr Burden said in his book is this and I'll just invite your comment: "Kuttner is backed up by the quiet but potent legal boss of News International, Tom Crone You needn't comment on that, Mr Crone. regarded as the sharpest brief in the newspaper industry wields the ultimate power of veto over what goes two the Murdoch tabloids." You cover that. You think that overstates the position?
A. Well, misstates it. I don't have a power of veto, certainly.
Q. You have the power
A. The rest of it I wouldn't comment on; you're quite right.
Q. You have the power or the right or the obligation to offer strong advice. That's as far as it goes, isn't it?
A. I think only the editor really chooses what goes in the paper and what doesn't go in the paper. Ultimately.
Q. Then Mr Burden says: "It is Crone who can assess better than anyone the risk/reward in running a calumnious celebrity story." I think all he's saying there is that given your vast experience, you can work out what the cost might be of publishing a story which is defamatory. Do you agree?
A. Well, I think I kind of understood what it meant but I looked up calumnious and it's in the Oxford dictionary, and I think it's false
Q. Defamatory.
A. I'm looking for it now. I beg your pardon, I've lost my plate. False and defamatory, yes. And the context in which he makes his comment, from memory I don't have the page in front of me is an assessment made in the knowledge that this story is false and defamatory. And I can't remember ever doing that, frankly.
Q. If one toned it down a bit and said "in the knowledge that it might be defamatory unless justified", you were the person best placed, owing to your vast experience, in working out the risks? Is that not fair?
A. That may be, but he hasn't toned it down. He puts it the other way. And if I was asked to comment on what he said
Q. That's fair enough, but if I were to tone it down, would you agree with the proposition?
A. I was the lawyer most of the time on duty in the News of the World and therefore I would be the person best placed, I would think.
Q. Then Mr Burden, without naming the individual, quotes from a former News of the World journalist. This is, again, on page 69 of his book and I would ask you to comment on this description as to whether it is in the slightest bit familiar with your experience. I'll read it out first: "What you have to imagine is that in the hell's kitchen that is the News of the World newsroom, where a horde of little devils rake muck, lie, invent anything they will think titillate and tempt a less diligent public into hating, sneering at or despising someone else, preferably someone they once admired because they were in Corrie or played for Man U or won Big Brother or used to be married to a prince or sometimes just unfortunate members of the public who are in the wrong place, there, behind a string of editors, stand Kuttner and Crone, the legal ringmaster always on hand to tell them just how far they can go and what it will cost them if they do transgress, so they can balance that against additional sales." Is that a fair picture or not?
A. No.
Q. Because?
A. Mr Burden maybe I'm taking it out of context, but you'll probably be able to tell me. I've seen a witness statement he has before this Inquiry saying that most of his conclusions were reached by extrapolation and conjecture. Now, as a libel lawyer, in-house, I would advise anyone not to publish defamatory, damaging allegations based upon conjecture and extrapolation. Provable fact, I think, is the way to do these things. That's the way the News of the World has always tried to do them, not in the way that he suggests.
Q. Okay, Mr Crone. On the next page
A. And practices, clearly, as well.
Q. I didn't catch that last answer?
A. And practices. It's his own statement, that he's written this on the basis of extrapolation and conjecture. It's full of defamatory statements, as are his blogs. Very fairly can he base his allegations upon any evidence because he doesn't have any and because they're untrue LORD JUSTICE LEVESON I'm not so sure about that, because that takes a lot of other material into account. Did you commence proceedings against him?
A. No, I've never sued anyone for libel, sir. I could have on many occasions, various people, including him on numerous occasions. You'll probably ask me what he said. I can't remember, but it's all on record, some of it in that book. MR JAY About ten lines into page 70 of his book, he says that you were interviewed whilst making a TV programme on the subject and you suggested you would never be unemployed as a libel lawyer for three reasons. Before coming to the reasons, do you remember or can you tell us about the TV programme he might be referring to?
A. I think he identifies it as Kelvin MacKenzie, doesn't he? Am I wrong?
Q. Depending on how you read page 70, you might well be right.
A. I've assumed that's what he's talking about. I can't remember what I said to Kelvin MacKenzie but those phrases sound familiar.
Q. Yes. So the phrases he attributes to you as to why you'd never be unemployed as a libel lawyer I suppose you would say this is just common sense, really: "Sometimes journalists deliberately mislead people." Is that correct?
A. It's been known.
Q. Newspapers well, at News International and NGN it's been known, hasn't it?
A. I think every newspaper lawyer has come across as journalist who has told a lie, certainly.
Q. "Sometimes journalists get it plain wrong." That is obvious. "Sometimes people lie and keep on lying for financial or image reasons." And then you mention two people who have been caught. So in other words, those are cases where the libel would be justified; is that correct?
A. They're claimants I'm referring to.
Q. Sorry, you're right. On the next page of your statement, at page 81 of Mr Burden's book I can read this out. I doubt whether you disagree with this, though: "Piers Morgan recounts cheerfully in The Insider how, when faced with a possible action for breach of copyright from the Mail on Sunday for lifting, or effectively stealing, an exclusive interview with Will Carling and his wife, he calls across the newsroom to Tom Crone: 'Hey Tom, how many fingers will this cost if we nick it all?' Crone flicked five fingers at him. '50,000 maximum damages.' 50 grand would have been well worth paying for a front page and two spreads inside and the bigger sales revenue it would bring." I think in your answer you're effectively agreeing with that, aren't you?
A. I agree that I held up five fingers, but primarily because I could have shouted across the room and I don't like shouting across rooms, and I was in the middle of doing something and so was he, so I didn't go over to him. It was some distance. Copyright-lifting is something newspapers do. Every newspaper has been caught out lifting more than they should done from someone else's exclusive, which is very often an exclusive interview that's been bought up by the other newspaper or an exclusive book serialisation. It can be a fine line. Sometimes it's a bit wholesale. Mr Morgan, I think, probably on this occasion, was thinking about doing something wholesale. I can't remember actually what he eventually did on that occasion but that was the context.
Q. I think it may go a bit further than that, Mr Crone, because the context is: well, although we are committing a tort, namely the interference with an intellectual property right, lifting someone else's copyright, given that it's only going to cost us 50,000 maximum, it's something we would consider doing because of the knock-on advantages to us. Do you see that?
A. Yes. That's what Mr Morgan says, yes. Absolutely. I don't think many editors would share the idea that doing something and deliberately incurring a ?50,000 bill for damages, never mind legal costs, would be ever worthwhile, frankly, but Mr Morgan had his book to write and no doubt he thought he'd tell a good story on it.
Q. But by clicking your fingers and indicating the 50,000, weren't you giving the message that it might well be worthwhile because whatever you might be paying in damages, it would not be as much as the commercial advantage in nicking the copyright?
A. I don't think there's anything you have the book in front of you and I haven't. I don't think there's anything in the way that's described which would support what you've just said, no.
Q. Okay. Can I ask you, please, about the Firth story, which is the next item at pages 116 and 117. We can forget about the "arrogantly" point because it's not going to go lead anywhere. I'm going to ask you, though, about your view of the practical and ethical issues surrounding the affair. Could you tell us about that, please, Mr Crone?
A. The story, as I recall, was that a reporter went down and availed himself of some services on offer in a house in the country. I think these people, from memory, gave massages, something like that. Perhaps he'd had some information that they went further than massages, so he went in there and he received something that went beyond massage and it was published and then they reacted quite strongly against what had happened. My view, getting back to your question, was that the story was pretty tacky. I don't make the decisions on these things going in a newspaper, but if I had made the decision, I would have thought it was too tacky to publish, frankly, and didn't justify the didn't justify really identifying these people in that way.
Q. Were you ever asked to advise on this sort of privacy issue which involved, of course, weighing up the private rights of individuals against the public interest in promulgating this sort of story?
A. Well, not in 1999, which I think was the year, wasn't it? Or 1998, even. Not very often, no.
Q. Later, Mr Crone.
A. Later? Yes, all the time. No, I was asked about the privacy law and how the judges would interpret it. I wasn't asked for my own personal views, no. Just: "Where are we on this? Are we okay with this?" And that would be advice given on the basis of whatever the law at a particular time was. LORD JUSTICE LEVESON But it's not just privacy, is it? Public benefit runs through lots and lots of potential media issues. Data protection is a very good one. Doubtless Mr Jay will deal with it. But public benefit is very much a matter for lawyers, isn't it? Or did you not advise on that?
A. I would have done in the context where it was relevant to whichever area of law was engaged. So on this one, was data protection engaged? I don't recall that it was, actually. And the privacy law really wasn't hadn't really come into existence at all in that year. LORD JUSTICE LEVESON That goes back to a question which Mr Jay asked you before in relation to the PCC, because it certainly engaged the code, and to give a holistic view, don't you have to think about it all?
A. Yes, but I was not advising on the PCC code because that was definitely the area of someone else who was there on the editorial floor to give advice on it, and the editor would have been aware of the PCC code in any case. MR JAY Can I ask you some more questions
A. I'm not a guardian of ethics, really. I know that sounds callous, but my job was really to advise on legal risk, the law relating to a particular situation that the newspaper was in or was thinking of getting in.
Q. We know that privacy law takes off, really, certainly by 2002, 2003. Does it not follow from that that you were asked to advise in an increasing number of privacy-type cases from about that time and subsequently? Is that right?
A. Yes. I think possibly Naomi Campbell was 2004, if I'm not mistaken. It really increased after that, yes.
Q. I think her case at first instance was 2002, but the exact date, Mr Crone, is not going to matter much. The question was a slightly more modest one: were you asked to advise increasingly on this sort of issue from about the date we're talking about?
A. On privacy?
Q. Yes.
A. It became a bigger issue incrementally, yeah.
Q. Were you not asked to advise specifically, in individual cases, on which side of the line a case might fall?
A. Yes. In terms of the way the court would look at it, yes.
Q. Indeed, Mr Crone.
A. Yes.
Q. So you could say, for example because you mentioned the concept of legal risk, which we understand, but in certain cases, you could advise: "Well, if we follow this course we are as near as certain bound to win or as near as certain bound to lose"; is that right?
A. No, I don't think privacy could ever be ever have much certainty about it.
Q. Right, okay. Your advice was more nuanced?
A. Quite the opposite. I mean, it was really all over the place. Perhaps it's getting ill slightly clearer these days, but I'm not entirely sure it is.
Q. There must have been situations, even with the developing common law and Article 8 jurisprudence, that you could fairly confidently advise which side of the line a case would fall, couldn't you?
A. Like all legal situations, there are 60, 70 per cent of the cases which are obvious and there are 30 per cent of the cases which are arguable, and it's amazing how often what you're presented with is the 30 per cent.
Q. Statistically, I'm having a little bit of difficulty in analysing that last answer, but let's not worry too much. Was your advice generally accepted or rejected?
A. In the area of privacy, I think there was a healthy debate about what was okay, what was legitimate and what was not legitimate, because it's a balancing of (a) is it private? If it is private, reasonable expectation of privacy, which I think I am trying to remember which case that really nailed itself onto the area in. But anyway, reasonable expectation of privacy was on the one side. If you got past that hurdle and there were plenty of arguments on the editorial floor about was it private, was it not private, intrinsically. You then moved onto public interest, where the arguments were even bigger and higher, and more
Q. The question though was: was your advice accepted or rejected in general terms?
A. I would express the view that they were probably going to get into trouble over it. That wasn't always accepted in terms of "We won't publish it", no. And that was always in the face of: "Well, we think this is in the public interest", or: "We think that this should be exposed", or: "This person makes a living off his or her public image and this is all to do with his or her public image." I always say, "Well, Mr Justice Eady might not agree with you in two weeks' time when we get in front of him for the first injunction", or one week's time, or something like that.
Q. You told us about your involvement or lack of it with the PCC and suggested that somebody else was responsible for dealing with complaints; is that correct?
A. Yes. PCC, yes.
Q. But the complaints, of course, are coming after the event. We're looking at the situation before the event. Is it your evidence to the Inquiry that your advice did not cover the PCC code when weighing up the public interest in terms of the injunctions set out in the code?
A. For as long as I can remember, if a PCC if part of the PCC code looked as if it might be engaged, the managing editor would have a look at it, would think hard about it, would sometimes consult the PCC sorry, not sometimes; very frequently consult the PCC about it at the weekend and then come back with an answer. And that was all done, really, outwith my little area by the managing editor.
Q. In a funny sort of way, that is anomalous since the issues bearing on the common law privacy, if I can be forgiven for using that term, are similar to the issues bearing on the code, aren't they?
A. They are.
Q. So is your evidence clear on this? You weren't asked to advise on code issues before publication?
A. I might be asked to advise on the law of privacy, which happened to be very similar to the code issues. But you asked me about code issues and the answer's no. If you interpret "code issues" in a very, very general way but privacy law, yes; code issues, no. They might, on any particular subject, amount to the same thing.
Q. Apart from you and we're looking at ex-ante now, not after publication did the managing editor have any legal advice available to him or her to assist as to the meaning of the code?
A. Well, he could come and talk it through with me, but I think he there were only two of them, really, for that period. Well, for going back to the beginnings of the privacy law. That was Stuart Kuttner first, and then Bill Akass, managing editors. I had frequent conversations with them about stories, issues, whether it was right, whether it was wrong. But in terms of, you know, is it PCC code compliant, that was their area.
Q. But without the benefit of legal advice; is that correct?
A. Well, they could come over and chat to me about it, but if they were going back and saying, "I think this is okay with the code, and incidentally, I was worried about it so I've had a quick word with Tom but I've, most importantly, had a word with the PCC about it", that would not be an uncommon scenario, I suspect.
Q. I just wonder how seriously the code was taken because you must have been the primary resource for legal advice on the code but you're not giving us the impression that your advice was systematically sought on the code; is that fair?
A. I've already made the distinction. I was the source of legal advice on the law, and if the law and the code were similar, then inevitably I was advising on the code. But I wasn't being asked to advise on the code; I was being asked to advise on the law. I'm sorry if that sounds like it's going around in circles, but that's the way it was.
Q. Okay, well, we understand your evidence.
A. It was the code was given I've already answered this question earlier, in fact. The code was taken very seriously, the PCC.
Q. Yes. May I ask you now about your answer (e), still on Mr Burden's book. Page 153 to 154. Are you with me?
A. Yes.
Q. I'm not going to deal with the first eight lines because you're obviously right about that; prosecution decisions are taken by the CPS. But the last five lines: "My experience is that Mr Mahmood has not concocted stories. His investigations that led to successful prosecutions against hundreds of criminals." Then you give the famous recent example. What evidence did you have to support the proposition there that he's not concocted stories?
A. The evidence of working with him for however long he's been there because I've probably been there slightly longer and not, from memory, seeing any concocted stories from Mazher Mahmood.
Q. Okay. Turn now, if I may, to the Max Mosley case, Mr Crone. Did you advise on libel and privacy issues before publication of the first story on 30 March 2008?
A. Yes.
Q. Did you view the videotape?
A. I viewed parts of it. I didn't see it from beginning to end. I saw a fair amount of it. I can't remember how much exactly. 15, 20 minutes. Maybe a bit more.
Q. Were you aware that the existence of the story was being kept to a narrow group of individuals within the News of the World to avoid the possibility of leaks?
A. Almost certainly. I think that happened every week if there was a decent story around.
Q. And this was a particularly big story, wasn't it?
A. It was a the big story that week, yes.
Q. Did you advise on whether Mr Mosley should be pre-notified of intended publication?
A. I don't remember specifically being asked for that advice, no. I think it came up in conversations.
Q. Who raised it in conversations?
A. I can't remember whether the editor was on that weekend, but whoever was editing that weekend.
Q. I think it was Mr Myler that weekend.
A. It was?
Q. So you advised him, did you?
A. Yes.
Q. It came up in conversations. Presumably the gist or the thrust of the conversation was along the lines: "We'd better not notify Mr Mosley since he'll injunct us." Is that right?
A. That was one of the factors. The other is if you notify someone, it's a good way to have the whole story leaked. Put it that way. And leaked in a slightly different way to the story we had but the same facts, effectively.
Q. You were well aware, were you not, that if Mr Mosley was pre-notified (a) he would make an application for injunction and (b) that application would probably succeed? That's true, isn't it?
A. I'm not sure I was so convinced about probably succeed, but I thought there was a good chance that it would succeed. But not necessarily "probably".
Q. What's the difference between "good chance" and "probably", Mr Crone?
A. A good chance is he was in with a good chance, say 50/50 chance. "Probably" is better than 50/50.
Q. May I suggest to you it was a bit higher than that. We'll hear from Mr Myler about it, but on the balance of probabilities, he knew and you knew that an application for an injunction would, on the then state of the law, succeed; that's true, isn't it?
A. No, I just said I didn't think it would definitely succeed. I thought it was in with a good chance.
Q. Again, I didn't say "definitely".
A. The whole thing is we have been, at weekends or on Friday night, in front of judges, weekend judges. No disrespect to the judiciary but one judge will say will give it one way and on the same set of facts another judge, in our experience, would give it the another way. So much of this is impression and, you know, personal views applied by the judiciary to what they think is right and what is wrong in behaviour. My own view on this, which I set out here, is that I thought it was a justifiable story without the Nazi element, to be perfectly honest, because Mr Mosley is a public figure. He's the global head and global spokesman of a most massive organisation LORD JUSTICE LEVESON Nobody else seems to think that, including the European Court.
A. Well, I'm giving my view. LORD JUSTICE LEVESON Sure. MR JAY If that was your view, then that would suggest that the chance of the injunction application succeeding was quite low, wouldn't it?
A. No, because my view doesn't accord, obviously, with the court's very often on this area. That's my personal view. I just think it's wrong that someone who represents over 100 million electorate, really, more than the president of the United States one has the right to expect him to be a fit and proper person. The local
Q. Before you climb too high on your mile high horse, Mr Crone
A. It's a big issue I'm sorry, it's a big issue with me. I can try and be quite short
Q. No, no, please just wait for the next question.
A. Sure, okay.
Q. Isn't it worse, Mr Crone, to publish a story like that, which is such an intrusion into a man's private life, without giving him at least the chance to explain what his position is? Didn't that thought, which is based, I suggest, on a degree of common humanity didn't that just flash through your mind for a nanosecond?
A. I mean, that's always, you know, the balance, if you like, but if a story is judged to be a right and proper story, but by and this may, again, sound very callous by going in front of the court, there would be an order saying you can't do this made almost instantly, then I think an awful lot of people in newspapers think that isn't always the best scenario. Not from a personal point of view, but from a general sort of right to publish point of view.
Q. But that rather suggests that your answer to an earlier question of mine was: "Yes, we well knew that Mr Justice Eady, or whoever, would grant an injunction pre-publication if Mr Mosley was notified." Isn't that right?
A. I gave my answer on that. There was a good chance.
Q. Did you have any involvement in the follow-up piece which was published on 6 April 2008?
A. I was on that weekend.
Q. Did you have any involvement in that piece or can you not now remember?
A. I was the lawyer on duty that weekend.
Q. So you're suggesting you must have had some involvement in it?
A. Yes.
Q. Do you remember asking Mr Thurlbeck anything about it, or is it too long ago?
A. I don't remember asking him, no.
Q. Was Mr Thurlbeck party to the discussions about whether, for example, Mr Mosley should be notified in advance of publication of the first story?
A. No. I don't think so, no.
Q. But I think you were present during the High Court proceedings during the cross-examination of Mr Thurlbeck when the issue of blackmail arose?
A. Yes.
Q. Do you accept that Mr Thurlbeck's emails to the two women amounted to blackmail?
A. They were pretty close, I think. LORD JUSTICE LEVESON Let's just think about that for a moment. Were you asked to advise on this?
A. No, I didn't know that had happened until it came out during the litigation. LORD JUSTICE LEVESON Does it cause you surprise that you weren't asked to advise on this?
A. A little, yes. LORD JUSTICE LEVESON I mean, this is pretty serious stuff. You've seen them now?
A. (Nods head) LORD JUSTICE LEVESON You're there to provide legal advice. I'm just a bit concerned about the you don't like the word "corporate governance", and you call it something else
A. I don't mind the word "corporate governance". I just don't think it's what I do. LORD JUSTICE LEVESON Well, providing oversight, legal propriety oversight to very important follow-up stories after an enormous publicity campaign. I'm just keen to get your feeling about the approach to these women which I may use different words at different times, but "remarkable" is the word I'll use now.
A. I was not consulted before the relevant emails were sent. I think it would have been sensible if I had been consulted because I would have suggested that's not really a very good idea and you shouldn't be doing it. LORD JUSTICE LEVESON But does it not follow, therefore, that the way in which these stories were being developed was existing in a parallel universe to the universe in which you were operating?
A. It was a department that didn't tell me that they were doing that, certainly, which was the news desk or perhaps it was just the journalist concerned. I think he says not, actually, but LORD JUSTICE LEVESON Well, there is more than one journalist concerned in it, but, you see, one can imagine that in some small stories you're responsible for a substantial organisation and I could quite visualise that in some small stories people will say, "It doesn't really matter, we don't need to trouble Mr Crone about this." But this was about as big as it was going to get.
A. Yes, but there are a lot there are many things go on in relation to many stories, and on some of them and it depends, perhaps, on who is the journalist or the desk head involved they will come and talk it through with me, and in other situations they won't. On this occasion, they didn't. LORD JUSTICE LEVESON This is going to be the big headline on the front page.
A. The emails? I don't think LORD JUSTICE LEVESON No, not the emails, but the follow-up.
A. Oh, the follow-up. Yes, I was there while the follow-up was being discussed. We were talking about the emails, weren't we? LORD JUSTICE LEVESON Yes, of course.
A. I'm sorry. LORD JUSTICE LEVESON But the follow-up depends upon the emails. The idea of getting these women, that's the story, isn't it?
A. It might help if I could see the follow-up, actually. My memory is that I think wasn't the follow-up based upon the story of one of the ladies? MR JAY I'll take it in stages, Mr Crone. You were asked about this matter by the Select Committee on 5 May 2009. Be careful about evidence given to the Select Committee because I can't ask you a question which might impugn it but I can draw your attention to what you've said. You can see it in the file if you wish, but take it from me, question 788 by Mr Adam Price: "The only instance of alleged blackmail, of course, in relation to this case is the charge made against your own chief reporter. "Mr Crone: No, absolutely not. You have not read Mr Justice Eady's judgment." Do you stand by that answer?
A. Um
Q. Do you want to see that answer?
A. I wouldn't mind, actually. I must say, I can't remember that.
Q. It's in file 3, which is the larger of the files which are on the chair behind you. Tab 3. The page number on the top right-hand side is EV177 under tab 3.
A. I'm so sorry, I didn't hear the last bit.
Q. Tab 3
A. I have tab 3.
Q. EV177. Bottom right-hand side. The pagination is the top right-hand side.
A. And the page number is?
Q. EV177, question 788.S?
A. I don't have that pagination, but I'll go to 788.
Q. You do. It's the top right-hand side of each page.
A. Well, mine says 66, 67.
Q. Go much further through tab 3. Go three-quarters or four-fifths of the way through
A. Right, I have that. I'm with you. Question 7
Q. 88.
A. And it's EV
Q. 177.
A. Sorry about that. Right.
Q. The more precise question is: if I were to ask you the same question as Mr Price asked you, would you give me the same answer? (Pause) LORD JUSTICE LEVESON It might be sensible to allow Mr Crone the opportunity to read into this.
A. I've started at the top of the column. LORD JUSTICE LEVESON Let me just rise for a couple of minutes to allow you to focus on it. I think that's only fair. And we'll just give the shorthand writer a break and we'll come back in just a couple of minutes. Thank you. (3.50 pm) (A short break) (3.56 pm)
A. Yes, I would.
Q. So if I were to ask you the same question indeed I do ask you the same question, as it were your answer is: "No, absolutely not. You have not read Mr Justice Eady's judgment."
A. It would be exactly the same, yes. Can I put that in context?
Q. Please.
A. If you look at question 784, halfway down, I explain to Mr Sanders MP: "What Mr Justice Eady found [and it's in Mr Justice Eady's judgment, by the way] was that Mr Mosley, in his private behaviour, his behaviour in his private life, went so far as to leave himself exposed and vulnerable to blackmail. This is not blackmail 'Give me ?100,000, Mr Mosley'; this is blackmail 'I want the Formula 1 race in Abu Dhabi this year, I do not want it in Bahrain", multi-million pound decisions which impact upon large numbers of people. He has genuine power. He is genuinely a very high and serious public figure and he is bound to his constituents, and to the sport, to behave in a way which does not bring either the organisation or his office into disrepute." Move about five questions down and Adam Price comments: "The only instance of alleged blackmail, of course, in relation to this case is the charge made against your chief reporter. "No, absolutely not. You have not read Mr Justice Eady's judgment." And I think that makes total sense because I've told him what was in Mr Justice Eady's statement about Mosley leaving himself open to blackmail and it has nothing to do with Mr Thurlbeck, but it is an instance raised in the case of blackmail.
Q. Isn't the question, regardless of who asked the question
A. "The only instance of
Q. Just wait, please, Mr Crone.
A. Okay.
Q. The question is: "The only instance of alleged blackmail in relation to this case is the charge made against your own chief reporter?" So that was a specific reference to Mr Thurlbeck and could only be a reference to Mr Thurlbeck's emails to the two women, wasn't it?
A. I think it's semantics but he's saying that what I have described in the previous column is not right, the only instance is Thurlbeck, and I am saying absolutely not because I have accurately described what is Mr Justice Eady's judgment LORD JUSTICE LEVESON Mr Justice Eady was postulating a possibility, but the actual instance of blackmail is a different one. Isn't that the point?
A. Sir, I think that's a nice point, but it's not the one that was occurring to me because I had already explained that in Mr Justice Eady's judgment, he found that Mr Mosley definitely was exposing himself to the risk of blackmail. That's what I had been talking about. Mr Price is contradicting what I've said and saying, "No, the only instance is Thurlbeck", and I'm saying absolutely not, that's not right because Mr Justice Eady said something different. LORD JUSTICE LEVESON Well, I can read it for myself. MR JAY When Mr Justice Eady's judgment was handed down, what reaction, if any, was there within News International to Mr Justice Eady's finding in relation to the behaviour of Mr Thurlbeck in the context of blackmail?
A. I'm not aware of that.
Q. You're not aware of what?
A. Of what reaction there was. I mean, it wouldn't be did if you're talking about was Mr Thurlbeck disciplined, was he spoken to, I don't know the answer to that.
Q. But here was a High Court judge making a finding of blackmail against the chief reporter of the News of the World. Did that not at least spark any interest, either within your mind or News of the World's mind, such that further enquiries or further steps needed to be taken?
A. Well, I heard what was said and I heard the comments made by Mr Justice Eady in relation to that, but for steps to be taken or actions to be taken, that wouldn't be my area, and I don't know whether there were. I didn't I'm not sure I saw any, but I don't know what was said privately between whoever and Mr Thurlbeck.
Q. Didn't you feel that that fell within your jurisdiction? It is, after all, a senior High Court judge making a serious criticism of the conduct of someone. Didn't it at least require some sort of response within the company?
A. It doesn't fall within my jurisdiction. Absolutely not.
Q. Maybe it was
A. Or didn't.
Q. all part and parcel of the same syndrome: "We'll rubbish Mr Justice Eady. He's got it wrong in relation to the main point in the case. We'll ignore what he says." Did you feel that that attitude existed within the company?
A. There was, within the company, criticism of judgments made by Mr Justice Eady. I personally wasn't in the business of rubbishing what he said, no. Not at all.
Q. But we know from your witness statement that you disagree with him, don't you?
A. I disagreed with him on the way the privacy law was going generally, yes, and that was obviously being case-led, case-by-case-led. I've said to him, actually.
Q. Were you asked to advise in relation to any appeal? The answer to that question is either "yes" or "no".
A. No.
Q. I didn't ask you a question I should have asked a little bit earlier. You are aware, of course, that the video was placed on the News of the World website, aren't you? Or weren't you?
A. Extracts.
Q. Were you aware at the time that that was happening?
A. Yes.
Q. Were you asked to advise as to whether that should happen?
A. I don't think I was, no.
Q. Again, isn't it something which would fall within your jurisdiction, as it were?
A. If brought to me, certainly. I'm not sure whether I was aware after it had already gone up or before it went up. I think after it went up, actually, is my memory of that.
Q. Because that had at least as important privacy implications as the publication of the article itself, didn't it?
A. Yes. LORD JUSTICE LEVESON Not least because of the Naomi Campbell litigation, where photographs went too far but the fact didn't.
A. Yes. MR JAY And of course, the interim injunction hearing was heard before Mr Justice Eady, I think, on Friday 4 April. He gave his judgment the following week. By that point, of course you must have been involved in that hearing the video was well-known by everybody to be emblazoned on the website and seen by tens if not hundreds of thousands of people. You knew all that, didn't you?
A. That's what tends to happen when videos go up there. They go everywhere quickly.
Q. Did you express any concern to anybody about that?
A. I can't recall now having done so, no.
Q. Is that because you didn't, in fact, have any concern about that?
A. I though it was pushing it to put up the video, I have to say. But it was already up. My memory is it was already up.
Q. One thing you might do, Mr Crone, is advise that it's taken down. Did you think about giving such advice?
A. I don't think I did advise that, no.
Q. No. We know it wasn't taken down, I think I'm right in saying, aren't I? It wasn't taken down until Mr Justice Eady when was it taken down? MR SHERBORNE Can I just explain? LORD JUSTICE LEVESON Yes. MR SHERBORNE What happened was that it was taken down after the complaint following the publication of the article. LORD JUSTICE LEVESON Yes, and put up as soon as the injunction was MR SHERBORNE No, sir, it wasn't. What happened was there was an application on Friday the 4th before Mr Justice Eady, and whilst we were waiting for the judgment to be delivered the following week, it was put back up on the website, as I understand. LORD JUSTICE LEVESON Is that right? Because was it Mr Justice MR SHERBORNE I'll check Mr Mosley's statement. My recollection was that was the point. LORD JUSTICE LEVESON I remember the point, that it was already there, but there wasn't any interim relief over the weekend. MR SHERBORNE It was taken down before the application. That was the point of the application, was to prevent it going back up. LORD JUSTICE LEVESON Yes. MR SHERBORNE I can check the point, but certainly LORD JUSTICE LEVESON We can find the facts out. MR SHERBORNE Yes. MR JAY Sir, I read paragraph 36 of Mr Justice Eady's judgment in the interim application as suggesting something different. LORD JUSTICE LEVESON We can get the facts. MR JAY We can, and of course Mr Sherborne was involved in that case. LORD JUSTICE LEVESON Mr Crone, I'm just slightly concerned that on any showing, this was massive litigation. You were involved in privacy litigation with a man who clearly felt extremely strongly about what had been done to him, and what concerns me is that the appropriate approach wasn't discussed with the most senior legal officer in the company.
A. In relation to Which one? LORD JUSTICE LEVESON "I wasn't asked to advise on posting the video. I was probably only aware after it went up."
A. I LORD JUSTICE LEVESON "I thought putting the video up was pushing it, but I didn't advise taking it down. I wasn't asked to advise in relation to appeal." These are all
A. I was only allowed a yes or a no on the appeal. I could explain more about that, if you'd like. LORD JUSTICE LEVESON That's a matter for yes, I think because of the whole question of privilege. MR JAY Yes. LORD JUSTICE LEVESON That's a matter for you and for others. Do you understand the concern that I'm expressing?
A. I do. Part of the problem is memory, to be perfectly honest. I mean, I have trouble remembering without having access to the files that actually most of the people in this room have had access to, I have trouble remembering what happened in what order, what I was consulted on and what I wasn't. And you might say that's bad, but I say that is the truth and it's not easy, actually, going back quite a few years to advise on what you exactly actually were involved in and how it happened and in what order, and I have found actually, with the CMS committee I'm not going to go on about things but I had forgotten things that are wholly supportive of what I have been saying to the CMS when they've been calling me a liar. Then Mr Pike, in his evidence, comes up with documents and actually that completely supported me. It was my document and I couldn't even remember producing it. That's what happens when you're out of the files for a long, long time. I can't remember Mosley was 2007, 2008? I don't remember. I may well have advised before the video went up. Normally, I think, the video would have gone up overnight on the Saturday night at some stage. LORD JUSTICE LEVESON But then you wouldn't have said, "I thought putting up the video was pushing it", because then your advice would have been rejected and I think you'd probably have remembered that.
A. "Pushing it" doesn't mean "don't do it". It's pushing it you know, you're taking a chance there. I advise on risk. I don't necessarily make the decision on the risk and as I said earlier, on privacy unlike libel, I think, but on privacy, it would be more of a debate than: "Okay, if you think it's legally wrong, we won't do it." LORD JUSTICE LEVESON So are you saying that access back to your file on this case would help you?
A. I'm not sure it would but obviously seeing what happened in what order sometimes triggers other memories. MR JAY We now move off Mr Mosley's case to the issue of phone hacking. Can I ask you, first of all, about Mr Goodman's appeal letter of 2 March 2007. I regret to say it's not in any of the four files you have, Mr Crone. You probably remember it. It's in the Abramson bundle, if I can put it in these terms, we were looking at earlier today, under tab 4 of that bundle. The third point Mr Goodman made under (iii) was that: "My conviction and imprisonment cannot be the real reason for my dismissal. The legal manager, Tom Crone, attended virtually every meeting of my legal team and was given full access to the Crown Prosecution Service's evidence files." Is that factually correct?
A. No.
Q. What's incorrect about it?
A. I attended one meeting the first meeting I think I was probably there from start to finish, possibly not the whole meeting. The second well, I attended one other meeting, whether it was the second one or not, and I was only allowed in, I would say, for about 20 minutes, at the request at the wishes of Mr Goodman.
Q. Fair enough.
A. And I was specifically not allowed to have the prosecution paperwork by Mr Goodman.
Q. "He and other senior staff of the paper had long advance knowledge that I would plead guilty." Is that correct?
A. No, absolutely not. I think that actually his plea was decided pretty late on, from my memory. I think the first time I heard, sorry, his plea of guilty or not guilty being discussed was at that second conference, which I think was pretty late, actually, not long before the plea was entered. Perhaps November.
Q. Your memory is right; it was November 2006 that the plea of guilty was indicated. Then Mr Goodman says in the letter: "Despite this, the paper continued to employ me." Is that right?
A. As I understand it.
Q. You know it to be a fact?
A. Mm.
Q. "Throughout my suspension, I was given book serialisations to write and was consulted on several occasions about royal stories they needed to check." Is that right or do you not know?
A. I don't really know.
Q. Point (iv): "Tom Crone and the editor promised on many occasions that I could come back to a job at the newspaper if I did not implicate the paper or any of its staff in my mitigation plea. I did not and I expect the paper to honour its promise to me." Is that true?
A. No.
Q. So do we understand your evidence to be
A. Certainly in relation to anything I said. I don't know what the editor might have said to him, but not me. I told him and the context of that, as far as I can see he's possibly conflating maybe two different things, but I can say this. Andy Coulson had at least two or three, maybe more, conversations with me, saying he hoped that whatever happened to Clive Goodman at the end of the criminal process, and if he was found guilty and served his sentence, he would be able to come back to the News of the World in some sort of role, having served his sentence. Not a reporting role that involved interaction with the public in any other way, but perhaps book filleting or book serialisation, possibly. And I think he wanted me to relay that to Clive Goodman. Whether he specifically asked me or not, I can't remember, but that was an impression I had. So on at least two occasions, possibly at those two meetings, I would have relayed that to Clive Goodman. Absolutely no strings attached to that in terms of: "Keep your mouth shut". That was a not a phrase I ever used. That was not something I ever said to him. Obviously, one of the things that I was doing by attending the Goodman legal conferences was to find out what was happening in the case, but that wasn't something I necessarily discussed with Clive, saying, "Look, I'm here so that I can report back on what you're going to do." I would obviously, having attended whatever I attended and been told whatever I was told or listened to whatever I heard I would go back and I would report back on it to which everyone knew I would be doing that back to those at News of the World, News International.
Q. So your evidence is that you were giving no impression to Mr Goodman that the price for his keeping silent might be that he could stay on the paper; is that right?
A. I don't think I gave that impression, I have to say. In fact, I'm sure I didn't give that impression. When I first became aware of that, which was actually not when the letter was sent because I didn't see that letter until, really, a long time afterwards, I spoke to one of the lawyers who was in those meetings and asked him what he thought whether he thought there was any truth in that and I was told: "Absolutely not."
Q. You attended the sentencing hearing, as you told me earlier, on 26 January 2007. You say in your witness statement, under (h) I'm afraid this is unpaginated. You might have a little bit of difficulty in finding it. It's about six pages from the end. I'm not going to ask you about the first
A. I have it.
Q. sentence at the top of the page yet. You say this, the second sentence: "Having attended throughout the Goodman-Mulcaire sentencing/hearing, I formed a strong impression that was said about others at News International commissioning Mulcaire's accessing in relation to the non-royal victims was based upon more than circumstantial evidence." How and why did you derive that impression?
A. Because the prosecution, I think, had mentioned it on at least two occasions in his explanation of what had happened, that in relation to the other, non-royal Mulcaire victims, Mulcaire was doing it for I think the phrase was "others at News International", and that phrase or something like it I think was probably used twice by the prosecution. This is only memory. I haven't read the sentencing judgment at all recently. It was also the sentiment, if it is a sentiment, was mentioned by the judge in the same way, and I think, from memory, Mr Sanders, who represented Mulcaire, probably raised it at one stage as well, along those lines. That was against the background of what I was told actually by Clive Goodman's lawyer, that in his he was an experienced criminal practitioner, solicitor, solicitor that in his experience, this case had been better prepared against Goodman and Mulcaire than anything he'd ever come across. The investigation lasted nine months, from I think November through until arrests in August. The paperwork was voluminous and it was all well-presented and everything that was being alleged seemed to be standing up. So against that context, I came away from the sentencing hearing thinking that the reference to others at News International was likely to be based on real evidence, rather than conjecture.
Q. Although, of course, no specific evidence was placed before the judge, was it?
A. I don't know what was placed nothing that I could see, unless the judge has stuff in his paperwork that I wasn't aware of.
Q. Didn't your thought process work on this slightly more developed line, Mr Crone, that Mr Goodman was the royal correspondent, and counts 1 to 15 concerned hacking into voicemails of the royal household, and so that all tied up, but counts 16 to 20 related to individuals who, of course, had nothing to do with the royal family and therefore would be naturally outside the province of bailiwick of Mr Goodman, which would give rise to a strong inference that the others at News International would indeed be people who were not part of the royal department, as it were? Didn't your thinking go along those lines?
A. Yes, yes, it did. I mean, there are two explanations for what you've just set out. One is that Mr Mulcaire was doing it for people other than News International. But since the judge, prosecution and I think Mulcaire's lawyer had said for those at News International, that's what I tended to think.
Q. Are you suggesting that Mr Mulcaire was moonlighting for some other newspaper?
A. No, I'm saying those are the two explanations. He's either doing it for someone else, or he's doing it for others at News International, because Mr Goodman actually, in fairness, Mr Goodman was doing a lot more than royal because he had a column which was kind of a gossip column, which touched on all areas of celebrity as well as royalty. It was under the heading "Blackadder", which he ran for, I think, a year or two just before this period.
Q. You didn't seriously think, did you, at the time that Mr Mulcaire was acting for other newspapers? He was working full-time for News International, wasn't he?
A. I think I did I certainly think that now, and I can't remember when I first thought it, but I suspect at the time I probably did think that to some extent. But as I say, my view is that it was for others at News International because that's what I've heard from the other three parties in court on that day.
Q. Weren't there rumours going around within News International which might have infiltrated into your thinking and supported the view that the others at News International were indeed involved?
A. I don't remember rumours, but I didn't need rumours because I'd already got it, really, from the hearing at the Old Bailey.
Q. What is the basis for your saying at the very top of this page of your witness statement, in answer to the question which was put to you: "When were you first aware that the rogue reporter explanation as to the extent of phone hacking at or at the behest of staff of the News of the World is erroneous? How did you become so aware?" Your answer was: "I can't remember when and by whom the rogue reporter explanation was first put out, but I was of the view that it was erroneous from the outset." What was the basis for saying that?
A. I can't remember when, but I'm pretty sure it was put out after the sentencing hearing. So I go on to say: "I formed this impression at the sentencing hearing."
Q. You're saying quite categorically, though maybe one shouldn't draw that inference, but you were of the view that the rogue reporter explanation was erroneous from the outset. That's what you're telling us here.
A. That was my view.
Q. So it was a view which was in your mind in the early part of 2007, perhaps at the latest; is that right?
A. At the outset, yeah, whenever it was first mentioned.
Q. Did you discuss that view with anybody else within News International? I had discussions which were privileged, yes. But I don't think any of them involved me saying there's clear and hard evidence, to be perfectly honest. LORD JUSTICE LEVESON Quite apart from privileged discussions, did you yourself, as responsible for legal risk within News International, do anything pursuant to your concern?
A. Well, I had the discussions that expressed not specifically that concern but expressed the view that others were probably involved. MR JAY The party line was being put out: one rogue reporter. And you heard that party line being peddled, didn't you?
A. Yes.
Q. It wasn't just peddled once, it was peddled several times. Didn't that ever cause you concern?
A. Yes. My feeling is I thought it would probably come back to bite the people who were saying it, which was the company, sure.
Q. That was your feeling, was it?
A. It was. LORD JUSTICE LEVESON Well, you were certainly right there. So did you do anything about it?
A. Well, I had discussions, sir, as I've said. MR JAY Were the discussions in the context of a specific request for legal advice? I am entitled to ask you that.
A. I was giving legal advice in the discussions definitely, yes.
Q. But was it in the context of a specific request for advice, Mr Crone?
A. I think it was me reporting upwards on what was going on, the legal ramifications and what I thought.
Q. In the course of those discussions I'm not sure I can ask you that question, Mr Crone, so I won't. But looking at your state of mind, were you concerned: we have at least the appearance here of a culture of cover-up, that this might come back to bite News International and sure enough it has done these concerns had to be expressed to people?
A. I think I missed the question in that one. Was I concerned?
Q. Were you concerned that we at least have here the appearance of cover-up, that there was a risk that this would come back to bite the company, as indeed it has done
A. I think
Q. therefore, people needed to be warned?
A. There was a I had a concern to some extent about that, but I think there was a line taken that in the absence of clear, admissible evidence, and in the absence of the police asking any questions of any person on the News of the World other than Clive Goodman, or suggesting that arrests should be other arrests should be made, after what was an obviously very, very thorough investigation, I think the line was taken that this was the worst thing that had happened in the newspaper's history, probably, almost certainly, and the company's primary thought was to draw a line under it, especially since, clearly, the police didn't look as if they were taking it further in any other direction.
Q. Wasn't the thinking perhaps along these lines: well, the police are doing nothing about it for whatever reason, they've got their convictions in the Goodman/Mulcaire cases, therefore the risk of it coming back to bite us was in fact quite low, contrary to your view, and therefore it was a risk that could appropriately be run? Was that the thinking that you were encountering?
A. I wasn't advising along those lines, but I don't want to get into the advice I was giving. We had litigation running from Mr Gordon Taylor at that stage. He was the only one out of the five actually who had issued proceedings against us. Since the remarks made at the sentencing hearing by the other parties and the judge were made publicly and fairly widely reported, I think, I was surprised that there wasn't other litigation. I was surprised in the light of what was said that we hadn't heard more from the police, but I think the fact that the company hadn't heard further from the police I think reassured people that that that was a line that they could take and hopefully draw a line under it.
Q. Yes, I think you perhaps misunderstood my question. I'm distinguishing between your thought process and the thought process others might have had. Your thought process was: there is a risk here, and that's consistent with the evidence you're giving us. But the thought process of others might have been: well, we'll run the risk because after all the police are not doing anything about it. Is that correct?
A. Well, I yes, it probably is. I was aware that there was some litigation going on and who knows where litigation is going to end up and what's going on come out, and also whether further litigation will follow.
Q. Of course, you tell us that when litigation started, and that was the Gordon Taylor case, proceedings were issued in the spring of 2007. You were personally keen, is this correct, to settle them quickly?
A. Yes.
Q. Why was that?
A. Just to sort the matter out and hopefully put that one to bed because I was conscious there was a good chance that other litigation would spring up, possibly from all of the other four, possibly from other people as well, and my job was to contain litigation, to conduct litigation so that other litigation doesn't spring from it, et cetera.
Q. Yes. Your job is also, if you could, to protect the company from reputational harm; is that right?
A. Yes. I think I can't deny that.
Q. Yes, and this litigation certainly had that propensity, to create reputational harm, didn't it?
A. Yes.
Q. Did you have any sense, Mr Crone, that you were encountering a degree of perhaps a tendency in News International to hope that this would all go away and therefore keep it quiet?
A. I think that was everyone's hope, to be perfectly honest.
Q. And to keep it quiet as well?
A. Well, keep what quiet? It's going back to hard evidence, admissible evidence, evidence known or just the suspicions and what was said at court and so forth.
Q. There was a meeting with Mr Lewis in Manchester, I believe; is that right?
A. That's right.
Q. Mr Lewis's account is in, I think, the second of the files we've put together for you under tab 26.
A. Is that the second with a Roman second?
Q. Yes. Paragraph 12. Evidence along the same lines. Page 23445.
A. Yes. Is it page 4?
Q. Yes.
A. Yes, got it.
Q. "After I'd issued proceedings [we know that was in spring of 2007] I was called by Julian Pike, a well-known partner at Farrers. Julian suggested that Tom Crone should come to see me. I was very surprised by this suggestion. I'd conducted many cases involving NGN and not once had Mr Crone sought to meet me let alone leave Wapping, where he worked, to come and visit me all the way up in Manchester." Is Mr Lewis factually correct there?
A. I can't remember "many cases". I'd certainly dealt with Mr Lewis before. I don't know how many cases. I doubt if it was more than three or four, max.
Q. I think all he's saying
A. But I hadn't visited him in Manchester, no, that's true.
Q. It's 2 hours and 8 minutes on a fast train, and you have to get to Euston. It's quite a trip, isn't it, Mr Crone? That's all he's saying, isn't he?
A. He's saying what I read him saying here.
Q. He also says: "It was fairly obvious to me that NGN were worried about Gordon's claim." That's true, isn't it?
A. You mean that we were worried? Yes. Yes. I was worried about it.
Q. So there was a meeting. "I remember that he started the meeting with the words 'we thought this had all gone away'." Did you say that?
A. I can't remember saying it, but I'm not denying I did.
Q. "He told me that he'd asked all News of the World journalists whether they'd been involved in hacking." Is that correct?
A. Yes.
Q. How many people did you speak to?
A. Six or seven, I should think. Maybe a little bit less. Maybe five.
Q. The "all News of the World journalists", that suggests everyone. You'd obviously been a bit more selective than that.
A. I don't think I told him I spoke to "all News of the World journalists", no. I think I'd suggested I'd spoken to those who could possibly or were likely to have been involved.
Q. Could possibly or likely to be involved, but you had a handful; is that right?
A. Yes.
Q. "He said that they had confirmed to him that they had not." Again, is that correct?
A. Yes.
Q. "In response to this statement I said to Tom that whilst I believed him, I did not believe them." Did Mr Lewis say that?
A. Yes.
Q. Did you believe them?
A. Well, I'm reverting I'm returning to what I've been saying to you in the last few answers: I thought it probably was more widespread than one rogue reporter.
Q. I think there's a dispute
A. But I couldn't say to them, "You're lying to me and here's some evidence", because I didn't have any.
Q. Fair enough. The next sentence is in dispute: "He asked me how much Gordon Taylor would accept to settle his claim and I told him ?250,000 was the figure that my client would accept." Did he say that?
A. My best recollection is that that figure came along afterwards in a letter, but it's possible he said it, but I really don't recollect that. I don't think he mentioned how much he had in mind until the letter came along. Simply because I seem to remember when I saw the letter it was, "Wow, that's a lot of money".
Q. But the upshot was that the meeting ended quite swiftly; is that right, because, from your perspective that whatever the figure was it was far too high?
A. I don't remember hearing the 250, so if it ended swiftly, in my memory it had nothing to do with that, no. I don't remember it ended swiftly, actually. I thought we just ran out of discussion. It was all very pleasant and shake hands and off I went.
Q. Yes. Okay. Then the litigation proceeded and know that. We also know that in January 2008 Mr Taylor made an application for third-party disclosure against the police and that you were sent documents disclosed by the police to the claimant in April 2008. Do you follow me?
A. Yes. LORD JUSTICE LEVESON Mr Jay, just pause there for a moment. MR JAY Yes. LORD JUSTICE LEVESON How long do you have for Mr Crone? MR JAY At least another hour. LORD JUSTICE LEVESON Then I think the answer probably is to draw stumps now and carry on, if it's a convenient moment. MR JAY Yes. And I note the time and Mr Crone has been going for a while. LORD JUSTICE LEVESON Yes. MR JAY Regardless of LORD JUSTICE LEVESON I'm very conscious that I am responsible for disrupting today's timetable. But just before we leave, let me just ask one question of you, if I might: some employers might take the view that they would have to find out if any of their employees had been breaking the law. Some employers. They might ask the police for help, get back their own documents to see what they revealed, and commence an internal investigation to clear out anyone who might have been involved in illegal behaviour. An alternative view is perhaps represented by an answer that you gave me, and this is why I want to ask you now while it's still fresh in people's minds, namely that even in relation to a reporter who is convicted of serious crime and sent to prison, will want to try and help him, not in the same public-facing role, but to find work for him, and that might mean that there's no real purpose investigating, in going further, who did what to whom. Because I'm concerned about practice and custom and ethos, rather than the individual specifics, I just wonder whether you want to comment on the perception that within the newsroom here, the latter view prevailed and absolutely not the former?
A. The I think the sentiment that Clive Goodman could return, if I can just deal with that, was Andy Coulson's. It certainly wasn't shared above, as I found out subsequently, because he was dismissed immediately after very shortly after he was sentenced. LORD JUSTICE LEVESON Yes. It's not specifically the decision, of course. I take your point, and I know he was. That's how you got into the topic.
A. Mm. LORD JUSTICE LEVESON But it's the general feeling, it's the ethos of the system, not the specific decision that I'm really directing my question to.
A. I can't speak for what was going through other people's minds, those running the company at the time, and they didn't specifically share with me in this context. But I think there was a feeling that bad things had happened, clearly, possibly more than had come out, but there was also a feeling that they weren't going to happen any more, they weren't happening now, when those thoughts were going on, they weren't going to happen any more, and the company hoped to move forward on that basis. That's my view of it. LORD JUSTICE LEVESON It's particularly in the context of what Mr Goodman then says is, "Come on, everybody, I was promised this support". Anyway, I was just keen to get your over-arching view of the ethos at the time, which to me is more important than any of the specific details about the individuals, as I'm sure you appreciate. All right. Thank you very much indeed. 10 o'clock tomorrow morning. Thank you. (4.40 pm)


Gave statements at the hearings on 13 December 2011 (PM) and 14 December 2011 (AM) ; and submitted 2 pieces of evidence
Gave statements at the hearings on 13 December 2011 (AM) 13 December 2011 (PM) and 20 December 2011 (AM) ; and submitted 38 pieces of evidence


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