Afternoon Hearing on 07 February 2012

James Harding , Dominic Mohan , Gary Morgan and Neil Turner gave statements at this hearing

Hearing Transcript

(1.55 pm) MS PATRY HOSKINS Good afternoon, sir. The first witness this afternoon is Mr Turner from the BPPA, the British Press Photographers Association. LORD JUSTICE LEVESON Yes. MR NEIL GAVIN TURNER (sworn) Questions by MS PATRY HOSKINS MS PATRY HOSKINS Good afternoon, Mr Turner. Could you please provide your full name to the Inquiry.
A. My name is Neil Gavin Turner.
Q. Thank you. Behind tabs 15 and 16 in the bundle, which you should have in front of you, you will find the two statements provided to the Inquiry by the BPPA. They're not signed statements. Can I ask you, therefore, to confirm that this is the evidence of the BPPA and that the statements are true and accurate to the best of your knowledge and belief?
A. I can confirm that.
Q. Thank you very much. I'm going to start with the first statement, which is behind tab 15. LORD JUSTICE LEVESON Can I thank you for these submissions, which are very helpful and do provide a perspective on part of the work of the press which hasn't been the subject of as much attention as other parts.
A. Thank you. MS PATRY HOSKINS I'm going to start with a brief introduction into what the BPPA is and who it represents. We can see that from the bottom of page 26 the first statement, 54177. The British Press Photographers Association, you tell us, has among its membership a large percentage of the country's front-line news photographers. It was founded in 1984 and its aim is to promote and inspire the highest ethical, technical and creative standards from within the profession. You then go on to say at the bottom of that page that the BPPA can speak for press photographers who, because of the highly fragmented nature of their employment, may well speak to the BPPA when they would not speak to the Inquiry. You then set out a breakdown of your membership. You say that your total membership is just fewer than 800.
A. That's correct.
Q. And it breaks down into sort of four categories. First of all, directly employed photographers are 24 per cent of your membership. Does that mean directly employed by newspapers, magazines
A. And agencies.
Q. And agencies. Then employed on fixed or rolling contracts, 12 per cent. Again, employed on fixed or rolling contracts with the same sorts of bodies?
A. With various media organisations but primarily newspapers and agencies.
Q. Then working through agencies as freelance photographers, 18 per cent. So would that be someone who was not employed by an agency but simply worked on a freelance basis?
A. Who syndicates largely their images through an agency.
Q. Right. Then entirely freelance, 46 per cent, so by far the largest number.
A. That's correct.
Q. Yes, would be photographers who work entirely on their own account.
A. No, that would also include photographers like myself, who work on Monday for one employer, on Tuesday for a second employer and then Thursday and Friday on a story that they've generated themselves.
Q. I understand. LORD JUSTICE LEVESON Can you say from your experience how many photographers there are? I'm not talking about the citizen photographers; I'm talking about those who make their living doing what you do.
A. It's a very difficult figure to gather. We've spoken to the government sector skills council, Skillset, to see if they have a number. They don't have a number. The best guess that we've seen is probably somewhere in the region of 1,800 to 2,000. That includes a lot of photographers who are directly employed by local and regional newspapers, who are traditionally not our members. LORD JUSTICE LEVESON Okay. Thank you. MS PATRY HOSKINS Can I ask about your role in the organisation.
A. Yes. I am one of two vice chairman. I have been in that position for several years now. I joined the BPPA quite late, in 2003. Before being a vice-chairman, I was the editor of the website.
Q. What I am going to do is take you through your statement. I'm going to pick out a few key issues and then I'm going to turn to the key proposals that you have for the future, which you set out towards the end of the first statement. Let's start with the statement itself, please. Page 4, just over from where we've been looking. You explain at the start, under the heading "The culture and practices of professional press photographers", that one of the main problems highlighted by this Inquiry is that the vocabulary used by the public and much of the media regarding press photography is limited and largely wrong. You go on to say that there is anecdotal evidence that this is due to confusion about who you are and what you do. Can you, in a nutshell, explain is to us what the confusion is there and what it is that the public get wrong?
A. It's the overuse of the term "paparazzi" is the primary problem. All of our members would tell you that they frequently get called the paparazzi. It's usually in a jokey way, but professional press photographers are exactly that. They're people who do this for a living. They do it professionally. They're not just some bloke with a posh-looking camera. They are people who are professionals. I guess the issue is in several of the statements and several of the articles surrounding the early stages of the Inquiry, words like "freelance" weren't always used properly. Certainly, like I say, "paparazzi" was used with ridiculous abandon, and it's just all of the words that we see attached to photographer or used instead of photographer are very, very, very largely badly applied.
Q. All right. Leading on from that, you tell us, down at the bottom of page 4, that the activities of press photographers are not limited, of course, to celebrity photographs. They can range from sports action to press conferences, and from feature case studies to war and famine. You then go on to say: "Most professional photographers will have touched all of those subjects as well as the red carpet events, doorsteps and other genuine jobs that seem to have been labelled as paparazzi by a lot of commentators." That's a fair point, of course. Turn to page 5, just over the page. You say, second-last paragraph: "To flesh that out a little, we find ourselves responding to news stories, many of which are still breaking, with very little information and a lot of expectations from our newspapers the news agenda dictates that we often operate in direct competition to one another on the same story which results in what lazy television journalists often refer to as a pack of photographers or a mass of paparazzi." Then you go on to say: "The behaviour of professional photographers, even in a pack, is normally good, ethical and entirely legal." If we just try to set the context for my question, the very last paragraph I want to refer you to in this context is at the top of page 6. You say that the problems are exacerbated in various ways. You seem to suggest that in other countries, photographers are given rather freer access to buildings such as courts, parliaments and committee hearings, and it's all a bit difficult because in Britain you simply don't have the same access. Are you suggesting that in the UK there should be freer access to such buildings such as courts, parliaments and committee hearings? You appear to suggest that even at this Inquiry photographers are limited to being out in the street. You seem to have a problem with that. Is that an unfair characterisation of what you're saying?
A. It's not a problem in terms of that's the way it has been certainly since before I joined the profession, but you have to put this into a context where television news has access to the footage from this room, television news has the ability to shoot all sorts of cut-away shots and build a story, to do interviews to camera. We, as still photographers, have to sum up all of that in a single frame, and when you're restricted to a single position in a cold or freezing street outside, where you're going to have three seconds to grab the picture you want, and you're standing shoulder to shoulder with 20 other people and television crews are there in the way as well, then clearly we don't have, as a media, I guess what you would call a level playing field.
Q. Are you suggesting there should be a bank of photographers at the back of the room here?
A. I think that the time has come when it should be investigated whether a single stills photographer or a limited number of stills photographers with, you know, the right equipment, now we can shoot in really low light, be admitted to some of these hearings, because if we want or if our newspapers that we work for want to run stills from here, if I said something extremely controversial now, they would have to run a still grabbed from what is relatively low quality video, and certainly not up to the technical requirements of newspapers. So I'm not overtly suggesting that we open it up to stills photographers. I guess what we're doing in this part of the statement is creating a background by which we're explaining why some of the actions that we have to take, quite legally and ethically still, to get our pictures have to be taken and possibly suggesting ways that, you know, some of the issues that you might point to could be overcome.
Q. Another solution that you seem to be suggesting, right at the end of page 6, is that people who are the subject of your photographs could be a bit more relaxed about giving up their photograph. You say this: "Professional news photographers have one goal: to get good, interesting pictures that editors will want to use. None of us enjoys the process of having to wait on wet and windy pavements for hours and nobody actually wants to chase cars down the road because people involved in news stories haven't got the sense to stop and talk for two minutes." Now, is that paragraph intending to suggest that those involved in news stories should, in most situation, be able to just stop and talk to photographers and allow their photograph to be taken?
A. I think there's definitely an element where if people did then, you know, again, a lot of the issues and a lot of the problems that are seen to arise could be sorted out. I mean, this is a tiny percentage of what we do, a really tiny percentage, but it happens and, you know, we have it within our powers as a society to kind of just change a few attitudes and then overcome possible issues. LORD JUSTICE LEVESON And those who don't want to be photographed?
A. Well, we have the Press Complaints Commission code of conduct, which we absolutely insist that people sign up to or abide by, and if someone says, "I don't want my picture taken", then under the PCC code, you stop taking their picture. MS PATRY HOSKINS I'm going to turn to page 7 of your statement, please, under the heading "The marketplace for news pictures and how it affects those cultures and practices". I'm going to ask you about the second-to-last paragraph on that page. You explain, in a nutshell, that freelancers and other photographers are having to find exceptional pictures, and you say that this is all happening at a time when newspapers' circulation is still dropping and work is actually thinner on the ground. You then say, at the end of the paragraph, that you have had several reports from photographers who have expressed reservations about being told to shoot pictures that would be regarded as unethical and/or in contravention of the PCC Editors' Code. Without naming any names, can you tell us who has told photographers to shoot pictures that would be regarded as unethical or in contravention of the PCC Editors' Code? Who puts that pressure on?
A. The marketplace, in a nutshell, and a manifestation of the marketplace would be the chain of command within newspapers, but I don't think any particular one group of individuals is to blame. It's just that atmosphere where we see things on television, on live rolling news, and newspapers require stills of what you can see on television. We've pointed out that here at this Inquiry, before it started, news photographers got together with the officials of the court and put the pen that you see which we've all walked past to get in. That was put there at the request of press photographers to give us some kind of semblance of order at the Inquiry, and when witnesses, especially the high profile witnesses that appeared in the early weeks, came in that entrance, walked past, got their pictures taken, didn't stop and pose for pictures, just passed by, everything's fine. Unfortunately, one very, very high profile witness chose, completely within her rights, to come in through another entrance
Q. Is this your second witness statement?
A. Yes.
Q. Can we turn to this. Tab 16. I think you identify the person as being JK Rowling.
A. Yes.
Q. I didn't mean to interrupt, I just wanted to make sure we had the right document.
A. No, we do, we do. And it became apparent that a lot of the agencies and a lot of the newspapers wanted the photographers to get pictures of JK Rowling leaving, and we've spoken to a lot of people who were very uneasy about that, and all of them made a conscious decision, you know: "Well, if I do go and photograph her leaving despite the fact that she clearly is not wanting to have her picture taken, will I be breaking any law? No. Will I be breaking any PCC ethical code? Probably not. Let's see when we get there." So individual photographers made the decision whether they would themselves go and take that picture or whether they wouldn't. Some did and some didn't, and some freelancers who make their living entirely based on whether they get, you know, the better picture than anyone else, one or two of them decided that that would be something they felt they needed to do too. LORD JUSTICE LEVESON So it requires rather more discipline by those who want to publish these photographs to make sure that they are obtained without breach of the code?
A. Absolutely, yes, yes. And I do believe, unless someone can tell me otherwise, that all the photographs taken on that day were actually taken without breaching the code. LORD JUSTICE LEVESON I don't know.
A. I mean, as far as I'm aware. I wasn't there personally, but I've spoken to several people who were, and that's what I'm led to believe, so MS PATRY HOSKINS Can I summarise your evidence: there was an agreement that photographers attending the Inquiry would stand behind barriers outside the exit that we walk through, yes?
A. Mm-hm.
Q. And the agreement was that they would remain behind those barriers and that's where they would obtain photographs and nowhere else, yes?
A. That was the agreement made between photographers and the court officials.
Q. You say this in your second statement: "Several photographers were ordered by their papers to get a picture of her [this is Ms Rowling], even if that meant suspending the agreement about only working from within the barriers. Others felt enormous pressure without hearing from their editors." I don't want you to name any names or any newspapers, but can you confirm that you've been told, and if so in which circumstances, that photographers were ordered by UK national newspapers to obtain photographs in this way, despite the fact that it would breach the agreement?
A. I'm prepared to say that photographers working for UK newspapers and/or agencies were ordered in such a way.
Q. Have you spoken to the photographers concerned who were ordered to do this?
A. Yes, I have.
Q. I know it's hearsay evidence, but they've spoken to you directly about it, have they?
A. Yes.
Q. Is there anything else that you want to say about that particular incident before I move on?
A. Only that the arrangement I've said this twice, but I think it bears saying again. The arrangement was made by photographers, who could see that there was going to be an issue. They took it upon themselves to make those arrangements. No one did it for them.
Q. Can we turn to page 9 of the first statement, please, behind tab 15. It's under the heading "The problems that the market for celebrity images are causing", and you explain in the second-to-last paragraph that people who look like press photographers and use much the same equipment as press photographers and whose pictures often end up in the press are causing much of the problem. You call them "celebrity-chasing amateur paparazzi or stalkarazzi, as Professor Greenslade refers to them". They're causing the profession a lot of problems and later on in this statement, you refer to their actions as "sometimes illegal and unethical". Can you tell us a bit about the illegal and unethical activities of these types of photographers that you're trying to describe?
A. They're very well described in some of the witness statements of some of the core participants in the first couple of weeks, but they do involve chasing people down the road, driving dangerously/illegally. They do involve initiating a reaction and a response from people to get different facial expressions, you know, in a kind of completely over-the-top way. They do involve the trying to photograph women in compromising ways to show you either what they're wearing under their skirts.
Q. Lying on the pavement and taking photographs up their skirts?
A. Yeah, and you know, holding cameras in strange positions. Working in packs deliberately. Deliberately running in front of people. I mean, you know, hearsay, I'm afraid, but I've heard it second-hand that they've seen one photographer deliberately get into a fight with a celebrity so a second photographer, with whom they were working as a team, could get the picture of the fight and split the money. That is hearsay, but I'm pretty sure it's happened, having observed some of these guys at work.
Q. That particular incident might be hearsay but all the other incidents that you describe, have you witnessed those yourself?
A. I have to admit that I've only spent one night observing these guys at work. This was about two years ago. I was in town at night and I thought: "I'll go and have a watch and go to one or two of the haunts and have a look at them." And you know, I was fairly upset with some of the activities, it has to be said, yes, and I do want to draw kind of the word "illegality" into this, because what they were doing wasn't well, it was unethical but a lot of it was also illegal.
Q. All right. So when the celebrities spoke of the various things that had happened to them being chased, being spat at to gauge a reaction, being chased in cars in a way that was dangerous you wouldn't doubt that they were telling the truth, would you?
A. I would not doubt that those incidents have happened, yes.
Q. Can I ask you about privacy laws versus the public interest. This is section 4 of your statement at page 11 onwards. Here I think you're setting out an objection to a new privacy law. I think the chairman will have read this section and I don't think we need to ask you about it in any detail but I want to pick you up on one matter, please. It's page 11, the second-last paragraph. You're talking about French law and about restrictive privacy rights in France. You're giving a number of examples there and essentially saying that the French privacy laws go too far in your opinion. Would that be a fair assessment?
A. I think the assessment would be that the problem with French privacy law, as we understand it clearly none of us are French lawyers. We've spoken to photographers who have worked in France and they say it's not necessarily the laws, what it is, it's the interpretation of the laws and the way that the news organisations have chosen to function in France for fear of contravening those laws that is actually the issue.
Q. Let me pick you up on one point. In the second-last paragraph, you refer to two politicians, Mr Strauss-Kahn and former president Francois Mitterrand. You say they had hidden elements of their private life from view using this law that, had it been known to the public, might have cost them elections and therefore their jobs. But have you considered whether or not there are cultural elements which might mean that the French public may not need to know or may not have wanted to know about the person
A. Cultural elements notwithstanding, I mean, people who are in favour of privacy law in this country talk about French privacy law in a way that they seem to want to import it not exactly wholesale, because they have a different legal system, but to import huge chunks of it. So it doesn't matter whether it's a cultural issue. It's because if we imported a French privacy law here without kind of huge references to our culture and our legal system, then we would be in the same danger.
Q. Let's turn, please, to your four-pronged approach as the solutions to the future. Section 5, page 13. You say in the second paragraph that your board is of the opinion that you need a four-pronged strategy. I'm going to take you through each and ask you to explain in very brief terms. Can I say from the outset that you specifically say that this does not amount to licensing of press photographers.
A. Absolutely not.
Q. And you would not want it categorised in that way. Bearing that caveat in mind, can you tell us about the four. The first is having a system of clear and strict tests applied before publication of any photograph. Can you tell us about that?
A. Yeah, I mean, the duty should be placed on all editors of all media not just newspapers but certainly websites, possibly blogs, if it could be done that when they publish photographs in their newspapers, show them on television, have them on their websites, that they have had to go through a series of tests to prove beyond, you know, reasonable doubt or whatever level of test that the people who put this into place demand, that those photographs were sourced ethically, legally and in a number of other ways.
Q. What would the tests be?
A. I think we haven't set out a series of tests because, you know, this set of proposals was put together reasonably quickly and we felt that until we'd had a great long conversation about what we thought the tests should be, then maybe we should just talk about tests and let greater minds other than ours come up with the solutions. But you know, the number of tests you would speak to the photographer, say, "Where were you when you took the picture? Did you engage in conversation with the person concerned? Did the person concerned ask you to stop taking pictures? Are you aware of the PCC code of conduct?" or whichever code of ethics that photographer is operating under. "Were you aware of all the ethical and legal consciouses and do you think that you abided by all of those considerations?"
Q. All right, so essentially asking them a series of questions with a view to finding out whether or not the picture was taken in a way that might have invaded someone's privacy? Isn't that what happens already, or isn't that what should happen already?
A. I do not pretend to work on a picture desk. I don't think that I'm the right person to answer those questions.
Q. Okay. The second relates to UK press cards. You say that essentially if someone held a UK press card, then there would be a lower standard of checking and proof because the photographer holding the press card would have already performed tests as they were shot. I think you're suggesting that if someone held a press card, they would somehow be held in higher esteem than someone who didn't hold such a press card, and you could rely on the images produced by such a person rather more easily. Is that fair?
A. I think that's a fairly good summation. I think the UK press card scheme already requires that you have a track record as a working journalist to get one, and I think in parallel with part three of this four-pronged approach, I think it would be fair to say that people holding UK press cards, you know, should be held to a much higher standard of ethics because they would have signed up to the relevant codes, and therefore newspapers could use their work with a greater degree of security and certainty, without having to perform time-consuming and difficult series of tests.
Q. Thirdly, you say that the press card scheme could be strengthened by having an enforceable code of conduct which would include the suspension and cancellation of cards. Presumably in situations where someone acted unethically, they could have their press cards suspended or cancelled? Is that the suggestion?
A. Absolutely. And actually, you know, can I make one small kind of subcorrection here: the UK Press Card Authority does already suspend and cancel cards. The BPPA is a card-issuer and we have done that. So the press card scheme already does have the ability to do that, and re-reading this, it kind of implies that it doesn't, and it does.
Q. Okay. Finally, you would agree a simply outline about exactly which laws would apply to photographers when they are going about their legitimate business. Trespass, assault, intimidation, harassment and so on. Can you just explain that to us briefly?
A. Yes. Sorry, could I just refer to a couple of notes I've made?
Q. Of course.
A. What we would be seeking really would be and I'm quoting from myself here a simple and robust explanation of the relevant legislation that recognises and encapsulates best practice. A credit card size pocket note, if you like, and pages on websites that outline all of the relevant statutes that really could take effect. I realise that's not a simple task and I know we have a roomful of lawyers here who probably would rub their hands with glee LORD JUSTICE LEVESON No, I think what the roomful of lawyers would say is there's an enormously weighty tome which does that exercise, and to get it onto one card would defeat even the most erudite of them.
A. Okay, I'll take that for sure. But I mean certainly kind of outlining which areas of the law photographers could be in danger of breaching and hopefully, because we're professionals, we would do the background reading that goes behind all of that and kind of, you know, be much more aware of what goes on. Equally, you know, what we're trying to do here is kind of by creating systems like this for professionals, hopefully those aspiring professionals, those people who are kind of out there with their camera trying to make a bit of money, would see that there's a framework like this within which the people they may be some of them aspire to be would be operating within those systems and equally fall in line. We are professionals and I don't think many of our members ever fall foul of any of that legislation anyway because they're all fairly well aware of it, but it doesn't hurt to kind of really underline what could be done and what is out there. MS PATRY HOSKINS Can I just ask you one question on your four-pronged approach. You said at the outset that one of the real concerns is stalkerazzi, people who arm themselves with a camera, don't have any experience, don't behave like real press photographers. I'm struggling to see how this four-pronged strategy would deal with that kind of situation. Presumably newspapers and magazines would be still entitled to buy photographs from these people? They wouldn't be required to have a press card, so there would still be a market for their photographs. Even if there were a series of clear and strict tests applied before their photographs could be purchased, nevertheless, if the photograph was good enough or interesting enough, it would be purchased, and therefore the market would still exist and the competition between photographers would still exist. How does your strategy deal with the problem of stalkerazzi at all?
A. There's two answers to that, I'm afraid. The first is that if those tests did exist and were applied, then those images wouldn't be purchased. However, if publishers want to purchase those images and want to publish them, then they would be somehow in breach of the requirement for due diligence placed upon them. LORD JUSTICE LEVESON They're responsible for what they put into their newspaper.
A. Precisely. LORD JUSTICE LEVESON If that photograph has been taken in breach of the code of practice, they're responsible for that breach, even if they didn't know about it?
A. I think that would be a very fair assessment, yes. MS PATRY HOSKINS You said there were two parts to your answer. LORD JUSTICE LEVESON I think we've got the one.
A. I'm afraid MS PATRY HOSKINS You're happy?
A. Yes.
Q. Thank you very much. Was there anything that you wished to add? I think I've covered the points I wanted to cover, but I want to the give out opportunity to add anything.
A. We came here today, at your kind invitation, wanting to put forward our approach to help solve the problem. The BPPA is an organisation of professionals and we want to be part of the solution. We don't want to be seen as part of the problem, because we don't feel that we are part of the problem, and if any of our members are part of the problem, then we would like to be able to sort that out. You know, in the conclusions, we say that we want to provide assurances to the general public that professional journalists exist and our work is ethical, legal and trustworthy, and I think that's important. We've talked a little bit about the United Kingdom press card authority, and I know that Mr Dacre's evidence yesterday touched on this. The gatekeepers of the organisations who form the UK Press Card Authority are a deliberately diverse bunch and they operate in such a way that no single person can have to apply for that press card through one single route. So as a photographer, I can get my press card through the BPPA, I can join the NUJ, I might do it through the NPA, and that's a really important principle because, you know, if, as a photographer, you fall foul of one particular organisation, you can still apply for a press card through one of the others as long as you haven't committed offences and had your press card suspended. That's an important point. So we have quite a lot of the tools at our disposal already. We have a body in the UK PCA that has a track record, and also we have a group of people amongst photographers who have a serious track record. For example, we were involved in drawing up a series of guidelines with the Association of Chief Police Officers for the way that photographers and the police work together on the street, and largely that works rather well. That was done by us. So, like I say, we want to be part of the solution and that's our entire reason for putting up the series of proposals in the submission. MS PATRY HOSKINS I'm very grateful to you. LORD JUSTICE LEVESON Mr Turner, thank you very much indeed. Responsible photographers, like responsible journalists, are not part of the problem and they do need to be part of the solution. Thank you very much.
A. Thank you, sir. MR JAY Sir, the next witness is Mr Harding, who has been recalled, please. LORD JUSTICE LEVESON Thank you. MR JAMES HARDING (recalled) LORD JUSTICE LEVESON Mr Harding, you're still subject to the oath you took when last you came.
A. Very good. LORD JUSTICE LEVESON I'm grateful to you for returning. You will appreciate that my interest in the contents of your second statement is not prurient or seeking to unpick that particular decision, but rather the wider perspective which falls within my terms of reference.
A. I do. And Lord Justice Leveson, if you'll allow me, there is one thing I would like to say, which is in the last couple of weeks I've learned a great deal more about what happened in this incident. As editor of the paper, I'm responsible for what it does and what its journalists do, and so I want to say at the outset that I sorely regret the intrusion into Richard Horton's email account by a journalist then in our newsroom. I'm sure that Mr Horton and many other people expect better of the Times; so do I. So on behalf of the paper, I apologise. LORD JUSTICE LEVESON Thank you, Mr Harding. You will appreciate that nothing that you're discussing today is relevant to the litigation between Mr Horton and the Times. If Mr Horton wants to pursue some remedy, that will be a matter for him
A. Of course. LORD JUSTICE LEVESON to take advice and to do what he feels is appropriate.
A. Of course. Questions by MR JAY MR JAY Mr Harding, we're referring now of course to your second witness statement, which is dated 6 February, yesterday's date. It possesses four exhibits. That statement has s a statement of truth and you've signed it and again, it's your additional formal evidence to the Inquiry; is that right?
A. That is right, yes.
Q. Some of it I think I can summarise. Some of it I'm going to have to address with more care, since there's quite a lot of detail here and the full picture can't emerge unless we do cover the detail. You say in paragraph 4 that the reporter who was involved in this was Mr Patrick Foster, who, as you say, was a staff reporter aged 24 at the time of the incident; is that correct?
A. Yes, that's correct.
Q. Your understanding is that in May 2009, he, on his own initiative, sought to identify NightJack, then an anonymous blogger, a police officer, and he did so, on your understanding, by accessing NightJack's email account. Is that correct?
A. Yes, that's what I now understand.
Q. I think the evidence which supports this, and indeed ties it into a date, namely 19 May 2009, is page 1 of exhibit JH4.
A. Yes.
Q. This is from Mr Foster to Mr Barrow, who you tell us was the then home news editor, to whom Mr Foster reported: "Martin, sorry to bother you. Do you have five minutes to have a quick chat about a story away from the desk, down here in the glass box, perhaps?" The fact that it's away from the desk might give rise to certain inferences, but tying that in with what you know now, you believe that the email hacking probably occurred just before this email was sent?
A. Just to be clear, Mr Jay, I know the basis of this is exactly this email, which came to my attention in the last week.
Q. Yes. I'm not suggesting for one moment, Mr Harding, that you saw this at the time. You've done some detective work and
A. Since then; correct.
Q. the picture has been pieced together.
A. Correct.
Q. In paragraph 9 of your statement, you tell us that Mr Foster also informed Mr Alastair Brett, the then legal manager of the Times and the Sunday Times, and you think that took place on 20 May, and you invite our attention to a couple of other emails in this email stream.
A. Yes.
Q. Page 2 of JH4.
A. Yes.
Q. I'm afraid I don't know whether this material is yet on our system so I'm not able to provide the unique reference numbers, for which I must apologise. I imagine they probably have been put on the system, but I'm working from a bundle which was prepared by Linklaters, my assistants, so I don't have the page numbers.
A. Right.
Q. But I'll read it out: "Hi Alastair, sorry to bother you. Do you have five minutes today? I need to run something past you." So this is all part of the same picture.
A. Yes. Just to be clear, my understanding is that when Mr Foster went to Martin Barrow, Martin Barrow then said, "You have to go and see the company's legal manager, Alastair Brett."
Q. Thank you. Page 4, please, of this sequence of emails. Still on 20 May in the late afternoon, Mr Foster to Mr Barrow: "Alastair on side. SB That's Mr Bevan, who is referred to in the lower email.
A. Mm.
Q. has sent typically polite email below. Am trying to talk it out of paper this Saturday for three reasons: (1) am away this Friday, (2) want a little more time to put ducks in a row and pix That presumably is photographers?
A. Yes.
Q. (3) want little more space between the dirty deed and publishing." That gives rise to a fairly clear inference, doesn't it?
A. It does. What I should say and that's the reason I mentioned, Mr Jay, that it's important to understand that a great deal of what we now know we have learnt as a result of pulling up all of the past emails between the parties involved, making sure that we now, for the first time, look at the legal correspondence, the nature of the legal instruction, the legal arguments and the transcript of what happened in court. All of this has been made available in the last week. I think one of the questions that we'd originally had a long time ago was: what exactly had Mr Foster done, whether or not and what role that had played in his investigation into the identification of NightJack? Clearly, this email suggests that he wanted to put some space between what he'd done in seeking access to that email account and his efforts to identify him using legitimate sources.
Q. Yes, because those efforts started at page 5
A. Yes.
Q. on 27 May 2009. I think that says: "Have pic of him [that's obviously picture] with computer. Going to start fronting up process." The way I read that is that he's going now to look at public domain information to see whether NightJack can be identified by that route. Is that the inference you've drawn?
A. Yes. I'm in the same spot as you are here in trying to piece this together solely through what remains in terms of the email traffic, but yes, I drew the same conclusion.
Q. Of course, what was happening here was that if the dirty deed, as it did, encompassed hacking into an email account and knowing the name of NightJack, then it was, as another witness has said, rather like working from the inside of the maze out, rather than from the outside in?
A. Yes, absolutely. The issue has been: having not known previously exactly what he's done, the choices that we faced and my original understanding was that it had left us open to the perception that he was setting out to find setting out asking questions to which he already knew the answers. In fact, I think what's clear from these emails is that indeed he did already have the answers.
Q. Yes. It goes slightly further than that. If you go to page 7, please, Mr Foster to Mr Barrow: "So have spoken to Horton [he, of course, is NightJack, who doesn't confirm or deny it] and says he will lose his job So that in itself was a pretty strong clue that he'd found the right man, but of course he knew that anyway because he'd been into his email account. I read on: even though he says he's gone nothing wrong." So the evidence was there, from Mr Foster's perception from the email account, and he'd also had this conversation with Mr Horton himself, who neither confirmed nor denied the attribution. That is right, isn't it?
A. Well, I understand I think we've jumped a little bit ahead of ourselves. My understanding is that what has happened is Mr Foster has gone to Martin Barrow. Martin Barrow has said, "There's an issue here. You need to go see Alastair Brett, the lawyer." Once Alastair Brett then is according to later emails, in his words, "tears a strip off Mr Foster" and says if he wants to pursue this story, he has to do so by proper journalistic endeavour, Mr Foster then does that and then, as would normally be expected by a journalist at the paper, seeks to confirm his identity by calling him directly. As I understand it, Mr Brett also insisted that Mr Foster would do that. Again, I piece that together from the emails that we have here.
Q. Yes, but what was said by Mr Brett and Mr Barrow to Mr Foster, namely: "Obtain your information by legitimate means (after having obtained it first illegitimately)", is that a journalistic practice that you would support or repudiate?
A. Thank you for the question, Mr Jay. No, of course not. To be absolutely clear, if Mr Foster had come to me and said that he had done this (a), we would have taken the disciplinary action that we did take and I would have told him immediately to abandon the story, because regardless of what information he did or didn't get, as I say, it lays the newspaper wide open to that charge. So no, I squarely do not approve of what happened.
Q. Is this right: if you were ever in possession of sufficient information to lead you to believe that the original basis of the story had been email hacking, you would not have published; is that correct?
A. Yes. I think let me just address this. This is there's a danger that we get ourselves into a world of hypotheticals. If X, would you have done why? I imagine we'll get to the conversation about the decision to publish, and we should address it within the context of, I guess, a number of issues that we faced. One was the public interest discussion. Two was the High Court judgment. Three was the fact that Lancashire Constabulary had already been contacted, and then four, in addition, was the behaviour of Mr Foster.
Q. Yes. Working through JH4 slightly further, Mr Harding, I think we can probably move ahead to page
A. Mr Jay, sorry, I should say one other thing.
Q. Of course.
A. Of course you are behind your question is the subject of a discussion we had when I was here last, which was about: where do you weigh the public interest issue versus a level of intrusion? I think that I should also be clear that if Mr Foster had come to me and said, "I would like to seek unauthorised access to a person's email account in order to identify a police officer as an anonymous blogger", I would have said that I did not believe that that intrusion was warranted in the public interest. I do believe strongly that this story had a public interest, but if he'd come to me in advance, that would have been the position that I'd have taken. Clearly, he didn't come to me in advance.
Q. Thank you. It appears that what happened is that over the course of the three days between 27 May and 30 May, Mr Foster was beavering away at publicly available information. The code was cracked, as it were, about lunchtime on 30 May, because if you go to page 14 of JH4, Mr Foster to Mr Brett: "Alastair, I cracked it. I can do the whole lot from purely publicly accessible information." Then Mr Brett comes back, top of the page: "Brilliant that may be the golden bullet. Can you set it out on paper?" We see the golden bullet at page 15, where there was reference to the brother's publicly accessible Facebook page.
A. Yes.
Q. Then what happened, to go back to paragraph 11 of your witness statement, Mr Chappell, the then managing editor, learnt of the existence of the litigation on 3 June, and there's an email which evidences that. There was a conversation between Mr Chappell and Mr Brett on 4 June, and Mr Brett came to see Mr Chappell later in the day following the hearing. Mr Chappell believes it was at this meeting, in the afternoon of 4 June, after the hearing, therefore, in front of Mr Justice Eady, that he was first informed by Mr Brett that there was a concern that Mr Foster had gained unauthorised access to an email account and that Mr Chappell was first briefed by Mr Brett on the litigation. To be clear, then, as to the sequence of the litigation because this was going on, as it were, in the background, but some might say in the foreground if we could go to JH3, Mr Harding
A. Yes and just to be clear, Mr Jay, you do understand the significance of that: that the way in which a newspaper works the senior management of the newspaper are the editor, the deputy editor and the managing editor. So the first time that anyone in the senior management of the paper becomes aware of the contents of this litigation or of the concern about the accessing of the email account is after Mr Justice Eady has heard this case.
Q. But before Mr Justice Eady had delivered judgment in the case, that's right, isn't it?
A. Well, you know, for a long time I thought that was the case. I mean, for a long time, I say in the last couple of weeks. I actually got to read the full transcript of the case over the weekend, and actually what's quite striking is that Mr Justice Eady signals the fact that he is not going to support the injunction at the end of the hearing. I only mention that because there was so much miscommunication between the legal team and between the editorial management that that was not made clear, in fact hadn't been made clear to me until this weekend.
Q. But we know that the formal judgment of Mr Justice Eady was provided in fact in draft, as is standard practice, on, I think, 12 June
A. Correct.
Q. and then handed down on either the 15th or 16 June. We're going to come to that in due course, Mr Harding.
A. Yes.
Q. But to deal with the course of the litigation, which, as you say, was carrying on at a different level away from management and we understand how that happens in newspapers can you kindly go to page 4 of JH3.
A. I'm sorry, Mr Jay, I hope you realise that's very, very unusual. I've never heard of a case where the legal manager takes the case to a High Court without informing the editor, the deputy editor or the managing editor. LORD JUSTICE LEVESON I must admit that caused me surprise. Is that a systemic thing that needs to be addressed?
A. I sorry, I only laugh because when you say it caused you surprise, you can imagine what it caused me. I don't believe it's systemic. I should say this: Mr Brett is an extremely distinguished and well-respected lawyer and had been the lawyer for the paper for many, many years, and I think on quite principled grounds believed that he wanted to take this case, that it was important to address the issue of creeping privacy injunctions and the issues that raises for press freedom, and I think in particular there were issues that he thought were important in terms of anonymity on the web. As you will see in one of his notes, he deeply apologises for the fact that he didn't raise it with us before he took it to court. LORD JUSTICE LEVESON Yes, well, I'm very pleased that he's considering the ethical considerations that might apply to the press. The extent to which he gave thought to the ethical considerations relevant to the court is perhaps another matter.
A. It is. MR JAY We do need to touch on that, Mr Harding. Page 4 of JH3 is an email contact with his opponent at Olswangs, Mr Dan Tench, whom it appears he's on first name terms with, so obviously they've done cases against each other in the past. He warns him that he's going to publish, so this is to give Mr Tench's client the chance to apply for an injunction, which is entirely appropriate. Page 5, Mr Tench says: "I am instructed to seek an injunction." Mr Tench gave a statement in support of his application, dated 28 May. If you go to page 13, please, we can see the start of the statement. At page 17, paragraph 20, he says at that point: "The claimant has no idea how Mr Foster identified him as the author of the blog." Do you see that sentence? The last sentence of paragraph 20.
A. Yes.
Q. There were then proceedings, no doubt conducted at very short notice and therefore everybody was in a bit of a rush, before Mr Justice Teare on 20 May.
A. Yes.
Q. The proceedings are transcribed at page 20 and following. The Times' counsel was Mr Barnes. What happened is that the proceedings were adjourned, but what Mr Barnes submitted to the court we can see at the bottom of page 25 at letter H.
A. Yes.
Q. It says this: "But this is where paragraph 4.2 of Mr Tomlinson's skeleton argument, where he says that whoever informed the Times of the claimant's identity did so in breach of confidence, is something which gives us a considerable amount of difficulty. We say it is an assumption at the heart of the application that has been made that is not realistic or related to the facts as they actually are. In a moment, I will hand in a newspaper article and make reference to some actual cases recorded on the blog and some actual cases as reported in the newspaper." Then, missing out some parts, and I paraphrase, he was saying that it was a natural or the natural investigative tendency to examine the blog, cross-refer it to the stories that are out there and try and narrow down and identify who the blogger is: "There is nothing intrinsically wrong about that." Of course, if that were true, that would, of course, be the case. Then he says: "My instructions, having discussed paragraph 4.2 of Mr Tomlinson's argument in particular with my instructing solicitors and the journalist, who is here, are that the proposed coverage that will be given, which will involve the disclosure of this individual's identity, is derived [and then this] from a self-starting journalistic endeavour upon the granting of the Orwell Prize. It is a largely deductive exercise, in the sense that the blogs have been examined and contemporary newspaper reports have been examined." That, sadly, was entirely misleading, wasn't it?
A. Mr Jay, as you know, I'm not a lawyer, and I've read now all of these papers. I understand that at this stage the issue being raised was about breach of confidence. As you'll see when you get through the legal correspondence, there are more specific allegations are made by Mr Horton's lawyers about access to the email account, and I'm sure we'll come to those and address those.
Q. But what's being said here, in the context of breach of confidence, I accept, and in the context of what has been called the second stage, the weighing of the public interest, is that this was a "self-starting journalistic endeavour", "a largely deductive exercise". So statements of fact were being put before the court which were incorrect, weren't they?
A. I think that these were lawyers acting on behalf of the Times and at the instruction of the company's legal manager. I've now read them all, and I have a journalist's view of the way in which this litigation was conducted, but I think for me to account for the words chosen by Mr Barnes or others I think those are probably a matter for Mr Barnes and the legal instructions he received.
Q. There's no criticism inherent in what I've said directed to Mr Barnes. Mr Barnes acts on instructions. His instructions were both from the journalist, Mr Foster, and from Mr Brett, because no one else was giving him instructions that this was a self-starting journalistic endeavour. The word "self-starting" is wholly misleading if we know that it wasn't self-starting in that sense; it was self-starting by ransacking someone' email account. LORD JUSTICE LEVESON Well, the point can be put another way, Mr Harding. I don't think we need to spend time on it. As I'm sure you're aware, counsel can't mislead the court, and if this member of the bar had known how this story had been obtained, it is inconceivable that he would have said that to the judge.
A. Correct. LORD JUSTICE LEVESON Right. I think we can move on because the way in which Mr White later puts it in his skeleton argument is even more clear. MR JAY Yes. Page 46 now Mr Harding. This is Mr Tench writing to Mr Brett. Mr Tench is onto the issue. He draws attention to what was said during the hearing this is about four lines down: "The statement that our client was identified by your journalist as the author of the blog 'largely by a process of deduction' this suggests that our client was so identified in part by a process other than deduction, most obviously, we assume, by as source."
A. Mm.
Q. Then on the next page they ask for a statement from Mr Foster verified by a statement of truth which sets out various matters, and in paragraph 2, "confirm that he did not, at any time, make unauthorised access into any email account owned by our client". Then he said for a number of reasons, I paraphrase, a suspicion arises that he did.
A. Yes; correct.
Q. So the issue, as it were, was clearly joined at that stage.
A. Correct.
Q. Mr Brett's reply, on 2 June at page 49 he provides a copy in draft of Mr Foster's witness statement and he says, exactly level with the lower hole punch: "I therefore attach a copy of it, as it sets out how, through a process of elimination and intelligent deduction, your client's identity can be worked out."
A. Mm-hm.
Q. Well, that wasn't an entirely honest statement of the position, was it?
A. No, I don't believe it was.
Q. Then he deals in the last paragraph with a history of making unauthorised access into email accounts by Mr Foster. That's said to be a baseless allegation and a misunderstanding of what happened at Oxford University. We'll come back to that in a moment. Mr Tench, at page 51 on 2 June, wants the issue expressly addressed in Mr Foster's witness statement that's the last sentence and Mr Foster then did produce a witness statement on 2 June at page 54, where he does two things. At paragraph 9 at page 56, he says at the top of the page: "I will not reveal information about any confidential sources." The implication being that he might have had such a confidential source. Then he goes through, in a very thorough and elaborate way, the process of deduction or almost forensic examination which he achieved by scrutinising materials in the public domain. That's what it amounts to, isn't it?
A. Mm.
Q. And precisely how he did that I don't think it's necessary to go into in any detail, but the point's already been made that he had the answer before he started.
A. And do you know whether he did or didn't have a confidential source? I
Q. I'm afraid that's not a question I can answer.
A. I don't know either. I'm just
Q. His confidential source was in fact his own actions in accessing the email. It was entirely disingenuous, with respect.
A. Yeah.
Q. The Times would be the only persons who would know whether he had a confidential source, but the inference is that he didn't. LORD JUSTICE LEVESON Doesn't really matter, because, as I say, it's not this particular incident that necessarily concerns me.
A. Right. LORD JUSTICE LEVESON It's how it's dealt with across the system.
A. Okay. MR JAY The next piece of evidence, page 68, second statement of Mr Tench of 3 June LORD JUSTICE LEVESON Just before passing that, he also makes some suggestions. You know, he throws all sorts of straws in the wind: "Well, there were other people who knew about this as well who you've not mentioned in your statement", and that gets a corrective statement back from Mr Horton, which is all rather disingenuous in the light of what we now know.
A. Sir, you're right. LORD JUSTICE LEVESON Yes. Sorry, you were at page MR JAY Starting at page 68, paragraph but it's paragraph 14 at page 73. Mr Tench is really onto the case because he's smelling a rat which, as it were, if I may say so, gets smellier and smellier. Paragraph 14, page 73, he says: "The claimant is aware that Mr Foster has obtained at least two further pieces of highly confidential information concerning him in respect of which he's given no explanation as to their source. That's the mobile telephone number of the claimant and the identity of the literary agent." He makes the allegation express in paragraph 18: "The claimant is particularly concerned that information leading Mr Foster to reveal his identity may have been obtained by illegitimate means, such as via unauthorised access to the claimant's email account. Can I move forward to page 83. LORD JUSTICE LEVESON He also explains that there's some reason for that suspicion, because when he tried to log into his email account, his password wasn't accepted, suggesting that somebody had been into the account and changed it, so he had to reset the password.
A. Correct. LORD JUSTICE LEVESON Yes. MR JAY The claimant's skeleton argument starts at page 83. This is for the return date of the hearing now before Mr Justice Eady, the application for an injunction. At paragraph 4.3 at page 86, the point is made on behalf of the claimant: "It is noteworthy that Mr Foster does not (a) confirm that he's not accessed the email account used at the blog, (b) explain how he found the claimant's mobile telephone number and the details of the identity of the claimant's literary agent." The Times' skeleton argument starts at page 94. I think I can move straight to page 96 under the heading "Breach of confidence". It's the last sentence in paragraph 7. The assertion is made, again on instructions: "Mr Foster was able to establish the claimant's identity using publicly available materials, patience and simple deduction." Again, that, to use a neutral term, is not correct, is it?
A. No.
Q. That was the material which was placed before the court. The way it was advanced LORD JUSTICE LEVESON In order just to be clear, that document is signed by Mr White and also the same barrister who appeared on the interlocutory application, so it's quite clear that if the information had been different to that which Mr Barnes originally had, that would have come out at this time, and you make it abundantly clear in your statement that Mr White certainly didn't know what you now know.
A. Correct. MR JAY In the light of this evidence, the way Mr Tomlinson put the case to Mr Justice Eady on behalf of his client, the claimant page 133, just after letter E.
A. Yes.
Q. "We are concerned, as you will see from the evidence, that someone has hacked into my client's email account. Be that as it may, the position we accept from today, hearing this case now, you can assume that it's more likely than not, on the evidence that's before the court today, that the identity was discovered by detective work and not by, as it were, conventional breaches of confidence." You note that last phrase, "conventional breaches of confidence". "We are content for you to proceed on that basis." That was a realistic concession by Mr Tomlinson, because notwithstanding the high level of suspicion his client may have posed, it probably was fair to say, on the evidence available, more likely than not, that it was obtained by detective work rather than by covert and illegal means. Do you accept that?
A. All I'd say, Mr Jay, is I am coming to this nearly as fresh as you it was striking to me that Mr Tomlinson made a point of raising in front of Mr Justice Eady the concern this, in fact, is the first time in this file that someone uses the phrase "has hacked into my client's email account" and raises expressly the concern and I say this in no way to improve the position of those legal instructions or the legal position of the Times but expressly raises the concern that Mr Foster never expressly says, "This was the only way I did it; I did not rely on any other confidential sources." That's quite striking to me.
Q. I'm not sure I'm quite following the point. The way I read this is that leading counsel for the claimant, assessing the available evidence, realistically accepts that he can't prove that the email account was hacked. He makes that clear to the judge because he knows full well that that's the conclusion Mr Justice Eady is going to make anyway, so he makes a realistic concession, and then decides to argue the case on the basis he's forced to accept. Don't you see that?
A. No, I think I'm not trying to defend it. I'm actually trying to explain that actually I'm as shocked as you to see that Mr Horton's lawyers raised, as far as I can see, on six occasions, specific concerns about accessing an email account, including in front of Mr Justice Eady.
Q. Thank you. The conclusion of the judge and the judgment was handed down on 16 June at page 172 LORD JUSTICE LEVESON Hang on, just before we go there MR JAY Sorry. LORD JUSTICE LEVESON At the end of the hearing, the judge said: "I'm not going to grant the injunction. I'll give my reasons in writing at a later date." So we may need to cover the interim period. He says he's not persuaded by the claimant's argument but he's continuing it on a temporary basis until the judgment, obviously so as to protect the possibility of an appeal. So it's still to play for. You've, as it were, won provisionally, but of course, if something dramatic happens in the meantime, of course the judge isn't bound by that because he's continued the injunction on an interim basis.
A. Mm. LORD JUSTICE LEVESON Or the Court of Appeal aren't bound by it. MR JAY No. LORD JUSTICE LEVESON In other words, the position is still as it was.
A. Right. MR JAY I'm going to come back to that issue because it is or may be relevant. I don't think it's necessary to analyse Mr Justice Eady's reasoning. One can just alight on his conclusion, which is paragraph 33. This is quite a sophisticated legal area. It's not one in which I have 100 per cent confidence of understanding all the principles, but what he says is: "I conclude that he [that's the claimant] fails at stage one, in the sense that the information does not have about it the necessary quality of confidence as contemplated by Megarry VC [in a particular case] nor does it qualify as information in respect of which the claimant has a reasonable expectation of privacy essentially because blogging is a public activity. Further, even if I were long about this, I consider that any such right of privacy on the claimant's part would be likely to be outweighed at trial by a countervailing public interest in revealing that a particular police officer has been making these communications." It might be said that the Times would have won anyway, even had Mr Justice Eady known of the manner in which the information was first obtained, because the claim failed at stage 1. I'm not saying that that is the ineluctable conclusion but it's certainly a possible conclusion, because it's only at stage 2, when you're balancing the public interest against other factors, that the circumstances in which the information has been obtained will be directly relevant. I don't put that forward as writ in stone, but I do put that forward as a possible interpretation of the law in the light of that particular conclusion. Can I take the story forward and then go perhaps back in time to 4 June, because we left it, as it were, at paragraph 11, Mr Harding, with the conversation between Mr Chappell and Mr Brett after the hearing.
A. Can I just make one point, Mr Jay, if I can?
Q. Certainly.
A. We've gone through a whole exchange of legal correspondence and legal arguments, which, as I said, I've read in the past few days. I hope you appreciate that I'm not a lawyer, and, as you'll see in the witness statement, what I try to do is reflect the thinking of Mr Brett, who was the company's legal manager, in his decisions and in the instructions that he gave. I can make a journalist's observation on the way in which this was conducted, and it does seem to me very clear that Mr Horton's lawyers raised time and again the issue of their concern about this email access, that Mr Brett tried to push them off with this claim that that was "a baseless allegation", and then on every instance that it was raised after that, there was no attempt to answer it. As I say, I'm not a lawyer. I am responsible for what happens in the newsroom of the Times, I'm not responsible for what happens in the courtroom, but I do feel that while the company handles legal affairs, somebody owes Mr Justice Eady and Mr Horton an apology, and I think you'll have seen I've written to Mr Justice Eady to apologise for the fact that this was not disclosed to the court.
Q. In paragraph 20 of your witness statement, if I take this slightly out of my intended sequence, you say Mr Brett took the decision to resist the injunction. You say: "I don't know exactly what consideration Mr Brett gave to the fact that Mr Foster had gained unauthorised access to an email account, but I understand that Mr Brett told Linklaters on 2 February of this year that he decided not to inform leading counsel for the Times, Antony White Queen's Counsel, or the court about the issue because he took the view that this information provided to him by Mr Foster was confidential and privileged, that it would incriminate Mr Foster, and that in any event Mr Foster had been able to identify Mr Horton through legitimate means." There are a number of matters there to note. It's probably not necessary to comment on them. They speak for themselves. I would like to take the story forward from 4 June and go back, please, to JH4, page 23. This is an important email.
A. Yes. LORD JUSTICE LEVESON This is the evening of the hearing before Mr Justice Eady.
A. Correct. Sorry, which page are you on? MR JAY It's page 23 of JH4.
A. Yes.
Q. You were copied into this email. We can see the time. But you don't recall having read it at the time?
A. I don't recall having read it. I don't think I would have read it. Just to remind you, it was the evening of the hearing was also the local election right, and as you remember you may or may not remember on 4 June 2009, there was an effort under way to oust Gordon Brown. James Purnell was submitting a letter of resignation from the cabinet and there was a question about whether or not he was going to pull down the government. That was where my attention was.
Q. We can see the size and detail of the email. Is it your evidence that you don't think you read it even after 4 June, Mr Harding?
A. No, I don't think I read it until the last week or ten days.
Q. Okay. I think it's important to understand what Mr Brett was telling Mr Chappell, only because you had a conversation with Mr Chappell subsequently and therefore we need to know what Mr Chappell's state of knowledge and mind was.
A. Yes.
Q. So can we just take a little bit of care with this email.
A. Of course.
Q. "David, you asked me to do you a memo on NightJack and events to date. "I first saw Patrick Foster on or about 19 May when he told me he'd been able to identify real live cases that an anonymous police blogger had been writing about. Patrick felt this was seriously off side and probably a breach of the officer's duty of confidence to the force. He therefore wanted to identify the guy and publish his name in the public interest. He then said he had gained access to the blogger's email account and got his name." Well, that's crystal clear, isn't it?
A. It is, yes.
Q. "This raised immediate alarm bells with me but I was unaware of the most recent law governing email accounts." Then he said he phoned a barrister's chambers, got to speak to someone who was a very bright junior barrister and said that I'm paraphrasing now it looks like a breach of Section 55 but there's always a public interest defence.
A. Yes.
Q. Which we know about. Pausing there, although this is a point of law, really, under the Computer Misuse Act, which this was also a breach of, there isn't a public interest defence. That's made clear subsequently.
A. No.
Q. The next paragraph: "After this conversation, I told Patrick: 'Never ever think of doing what you have done again.' I said he might just have a public interest defence if anyone ever found out how stupid he'd been. He apologised and promised not to do it again. Further, he said he would set about establishing Horton's identity without reference to the email account. I did though say he would have to put it to Richard Horton that he was NightJack." We know that occurred on 27 May, I think, and then I paraphrase over the following days, he continued to investigate NightJack. He describes the process of deduction. At the bottom of the page: "Last Thursday afternoon, our barrister told the court that through a process of deduction and elimination, Patrick could identify Horton as NightJack, but it looked as though we would lose the application because Horton's silk was convincing the judge that he was entitled to have the information protected by the law of privacy and confidence." So he asked for an adjournment I paraphrase and I move on. Five lines down from the top of the next page: "On Monday of this week, Olswang wrote to us saying (a) that Patrick had a history of accessing email accounts and pointing us to an incident at Oxford where he'd been temporary rusticated for accessing someone else's email account without authority, and (b) that their client's email had been hacked into. Looking at the old Oxford cuttings about Patrick's brush with the proctors, I became aware of the possibility that Patrick's access to Horton's email account could constitute a breach of section 1 of the Computer Misuse Act." Then he says there's no public interest defence. Then in summary, halfway down: "Patrick has always believed that his investigation of NightJack was in the public interest. When he came to me to say that he had found out that NightJack was Richard Horton and he had also obtained access to his email account, I made it very clear that this was disastrous, as he should not have done it." Then he refers to the then focus on Section 55. So that was Mr Chappell's state of mind. He was clearly told that Mr Horton had obtained the information by illegal email hacking, hadn't he? LORD JUSTICE LEVESON You'd better read the middle of the bottom paragraph. MR JAY Certainly. LORD JUSTICE LEVESON Which is: "Given my own failure to spot what could be a breach of section 1 of the Computer Misuse Act, I am not in a position to advise sensibly in this case, but I would suggest that Patrick is given a formal warning that if he ever accesses anyone's computer ever again without authority, whether it's in the public interest or not, he will be sacked. You might add that the only reason he has not been sacked now is because he was told he might have a public interest defence if he was pursued under the DPA." So that's a false premise as well. Anyway. MR JAY So the following day Mr Harding and now we're back to paragraph 13 of your statement.
A. Yes.
Q. you say: "I personally first came to hear about the matter the following day, 5 June 2009, when Mr Chappell raised the matter with me in a meeting. In this meeting, Mr Chappell told me about the story, and that there was a concern that Mr Foster had accessed Mr Horton's email account." That puts it, arguably, rather low. It was more than a concern. Mr Foster told Mr Brett that that's what he'd done, that he'd accessed the blogger's email account; isn't that right?
A. Yes, Mr Brett had said that in that email.
Q. Yes. LORD JUSTICE LEVESON And Mr Chappell had acknowledged it, because on page 25 of JH4, he says: "Alastair, I've a couple of quick questions on this. When you get in, can we have a brief chat, please?" So he's clearly studied this email.
A. Mr Chappell has, yes. LORD JUSTICE LEVESON Mr Chappell.
A. Yes. MR JAY It's really the next sentence which I need to ask you about in paragraph 13: "At that time, it was not clear to Mr Chappell [I miss out "or to me"] exactly what Mr Foster had done." But it was clear, wasn't it?
A. Just to put it in some context, Mr Jay, as I mentioned to you, that following day there was a cabinet reshuffle. So there was quite an intense political crisis, but for me personally, the biggest shock was that the Times had taken a case to the High Court and I was not aware of this fact. So I think it may have been the case that in the short conversation that we had, the first focus my attention was: what case, on what grounds, why and why wasn't I informed? And we probably didn't drill down probably into exactly what Mr Foster had done.
Q. But the key message from the email we've been looking at was that Mr Foster had gained access to the blogger's email account. That must have been something that Mr Chappell it must have resounded with him and it must have been something, surely, which he'd communicated to you, Mr Harding; isn't that right?
A. I can't recall the exact contents of that conversation. There's a reference to the meeting in my diary and there's a reference to the meeting having happened in a follow-up email, but I don't want to speculate on what was in that conversation.
Q. You do say in your statement: "The suggestion that he had accessed someone's email account was as matter of great concern to both of us."
A. Yes.
Q. So the message of unlawful accessing of an email account, at least that message was transmitted to you, wasn't it, by Mr Chappell?
A. Well, the issue of whether or not it was lawful, I don't know. I would have taken the view immediately that this was not right, this was not the way in which we pursued stories and certainly we had no business doing it without being consulted in advance. Exactly the nature of the conversation, I don't know. I just can see from the follow-up emails that we decided that we were immediately going to take disciplinary action.
Q. So you must have known enough then to know the gravamen of the case against Mr Foster, namely that he'd unlawfully accessed an email account? That must be right, Mr Harding, mustn't it?
A. Well, as you know, one of the issues I've had is I didn't know exactly what he had done. The reason for this and I will keep going back to it is the issues in this case were all coming to me at the same time, ie why were we seeking to identify an anonymous blogger, what was the public interest in that argument, why had a case been taken to the High Court without me being informed, and where in this process did, you know, Patrick Foster's at that stage, I didn't know whether it was an attempt to access an email account or successful attempt to access an email account fit in the investigations? All of those things came at the same time.
Q. Then the sentence we've just been scrutinising: "The suggestion that he had accessed someone's email account was a matter of concern to both of us". So your state of mind on 5 June was clearly someone was telling you that Mr Foster had accessed someone's email account, wasn't it?
A. That is what is as I say, I can't recall exactly what was said in that meeting.
Q. All right. Then you say: "It was clear that we had to deal with Mr Foster's behaviour." What behaviour were you referring to there if it wasn't the unlawful accessing of the email account?
A. No, no, it was that behaviour. It was the but as I said, the issue here, Mr Jay, is that I didn't know exactly what he had done. I didn't know: had he accessed the account? Was it the blog account? Was it an email account? It just seemed to me to be a highly intrusive piece of reporting without prior approval, and I put in that and I'm giving it to you much more clearly today than I appreciated at the time, and you're asking me to and I realise I understand you're pressing me to say what was the nature of the conversation on 5 June 2009. I can't recall it exactly.
Q. Yes. I can understand, Mr Harding, there were two levels of background noise going on. First of all, there was the background noise surrounding the political situation, which was occupying you. Secondly, there was the background noise that you were angry that this had been going on without your knowledge, but if we try and strip that noise away, the basic point was a simple one: one of your reporters had accessed illegally an email account, and that was really the basis on which the story was going to be published; isn't that
A. Mr Jay, I have to own my responsibility and my failure here. As I say in the statement, I can see now that we paid insufficient attention to this matter at the time. We did. We paid it insufficient attention.
Q. Finally on paragraph 13, you say: "We agreed that we would await Mr Justice Eady's judgments before doing that." The "that" is dealing with Mr Foster's behaviour in the sentence we've been looking at?
A. Yes.
Q. Don't you think, though, that given that Mr Justice Eady had not handed down his judgment, it might be a sensible idea to obtain legal advice, and if Mr Brett no longer could give you that independent advice, as he was suggesting in an email, get legal advice as to whether you should go back to Mr Justice Eady and tell him what the true facts were?
A. I'm sorry, Mr Jay, you're asking me to make judgments on things I didn't know about. I didn't know about this email. I didn't know about the advice that Mr Brett was giving. How would I be able to go back and ask for different advice when I didn't know the advice that was being given?
Q. But you did know that the email account had been hacked into. We're agreed about that, aren't we?
A. Sorry, I keep trying to be clear. You're saying to me: "If we could strip away the fact that there was a political crisis going on, and if you could strip away the fact that you had not been informed of this litigation at all, if you could take those things out of the equation, would you not then have appreciated ed fully?" But the reality is that wasn't the situation that I was confronted with, and as I've tried to say to you, I don't recall exactly what was said. What I have tried to acknowledge is that when this was brought to me, when it was clear that there was a problem of behaviour and not even being clear exactly what the problem was, we dealt with it. We took really swift action. Mr Chappell was informed. Mr Chappell came to tell me. We immediately decided that disciplinary action would be taken. When we had to weigh up, which we did ten days later, a decision about publishing, then again we had a whole bunch of other issues that we had to weigh, and in that we had to figure out what attention we would pay to this issue.
Q. Of course, it might be said on your behalf that you did not know precisely on what basis the Times case had been put to Mr Justice Eady?
A. Much worse than that, Mr Jay. I had no idea that the case had been brought to court. I didn't know what the legal correspondence was, I didn't know who had been instructed, I didn't know what the instructions were, I didn't know the subject matter in the case. So all of this is after the fact.
Q. It would be obvious to a lawyer but you're not a lawyer that Mr Justice Eady could not have been told that the email account had been unlawfully hacked into, because had he been told that, you would have got to know about it because he might have exploded, but that degree of ex post facto rationalisation, obvious to a lawyer, might not be obvious to everybody.
A. Right.
Q. May I move on to what happened approximate ten days later, because the judgment was provided in draft, as I've said and you say at paragraph 23, and then there was a meeting on 15 June to discuss the issue of publication. The best route into that is JH4, pages 47 and 48.
A. Okay.
Q. The first email at page 47 is the one at the bottom of the page, timed in the morning of 14 June. This is Mr Chappell to Mr Blackmore, where you're beginning to give consideration, or your paper is, to the public interest considerations: "There are three things to consider: "(1) What is the editorial value of this story? "(2) Given there is a significant legal precident in this, we'll want to run something. Given the trouble it's caused, are we now cutting off our own nose to see spite our faces if we decide the story isn't that interesting? Are we now stuck in a position of having to run something because of the legal processes?" Then the third issue is: "What do we do about Patrick?" Then the next email I am not sure we're necessarily concerned with
A. I should say that pretty much reflected the nature of the conversation, I think, the following day on Monday, 15 June.
Q. Am I right that by this point you were aware that Mr Foster had hacked into the email in order to gain the identity of NightJack?
A. No. I keep on trying to make it point to you, Mr Jay. I was not aware of exactly what he had done. I was aware that we had a concern about what he had done, but I was not aware of exactly what he had done, and that's remained the case, to be honest, until we've got all of these emails and all of this documentation in front of me in the last couple of weeks.
Q. I think you were or may I ask the question less directly: were you involved in the decision whether to publish this story in the public interest?
A. Yes.
Q. How did you feel you could reach that decision without exploring further into the circumstances in which the story had been initially obtained?
A. So again, we'll try to go back to June 15, this is, 2009, and just again to give some context, this is in the aftermath of the Iranian elections. We had a reporter in Tehran and, do you remember, it turned quite violent. So this was what was occupying us on that day. We had a meeting, as I remember, to discuss this issue. The first and biggest one was: what was the public interest argument? And of course, what was very frustrating was that's exactly the conversation we should have had in advance of going to the High Court. We had it after the fact and after the fact that Mr Eady's judgment was being handed down, but it was an important argument that we had to address, because on the one hand, some people said, "Why are we trying to identify someone who is essentially a citizen journalist who is an anonymous blogger? Surely, if you like, he's one of us?" And on the other side there was a question which was: here is a police officer who appears to be in breach of his police duties and also there is a real question about this kind of commentary made anonymously on the Internet, the whole issue of anonymity on the web, and having listened to that debate, I took the view that this was and still believe that this was firmly in the public interest. This was what dominated that conversation. The second issue was: what do we do about the fact that this case has been taken without our knowledge to the High Court? What do we do if we've taken up the time of the High Court, Mr Justice Eady has ruled that this is in the public interest, we are thereby enabling everyone to publish the identity of NightJack, but more importantly, will the Times not then get known for bringing vexatious lawsuits to the High Court if we don't honour that judgment? Third, there was a question which was: the reporting had already led to Mr Horton's identification within the Lancashire Constabulary, and fourth, we believed we had a behavioural problem with one of our reporters. We were going to have to address that. The way it had been presented to me and that's obviously different with hindsight but the way it had been presented to me was there was a concern about Mr Foster's behaviour but that he had identified him through entirely legitimate means. On that basis and in the light of all of those four things, I took the decision to publish.
Q. If the focus of your deliberations was the public interest, wasn't it all the more important to weigh into the balance the circumstances in which the information had been first obtained?
A. I think what I've tried to explain was the arguments of the public interest, if you like, the balance of the arguments was not about public interest versus privacy; it was: was this in the public interest? Ie, public interest versus rights of anonymity on the web and the nature of the blogosphere. That was the nature of the conversation we had.
Q. That's raising the debate to quite a high level of abstraction, because ordinarily, if you're considering the public interest, you would want to know the circumstances in which the information was obtained. If it was obtained by traditional methods of subterfuge which weren't particularly intrusive, that would weigh quite lightly as a countervailing factor in the public interest but if it was obtained illegally, then surely the public interest balance comes down or arguably comes down in a rather different place, doesn't it?
A. No, I appreciate what you're saying, but what I'm trying to explain is that actually, no, this was not a high level of abstraction for us. For all journalists, we are really trying to understand the nature of what we do and the nature of information on the Internet, and how we interact with that kind of information on the web. So actually the interaction between a newspaper and the blogosphere was a very real issue. In this case, we took the view I took the view that this was a police officer in breach of his police duties. There were questions about what the information that he was putting into the public domain would do. That was the focus of our thinking.
Q. One possible insight or evidence, rather, into the subject matter of your discussions may be gleaned from page 49 of JH4, which is an email from Mr Chappell to Mr Brett on 14 June in advance of a meeting which I think was going to take place with you the following day on the 15 June. Do I have this bit right?
A. Sorry, which page are you on?
Q. Page 49 of JH4.
A. Yes.
Q. The lower email. The evening of 14 June: "Good evening, Alastair. Keith and I have been discussing this from the editorial standpoint and we're in broad agreement as to how to proceed tomorrow." The way I read that is that there was a discussion slightly lower down the management and editorial tree. They were going to take these issues to you the following morning, and what we are about to see may form part of the basis of the editorial discussions which you were going to participate in. Do you follow that?
A. Yes.
Q. Can we go to the second number 2, because there are two bullet points to
A. Yes.
Q. This point is made: "If we publish a piece by Patrick saying how he pieced together the identity (for which Eady praises him!) what happens if subsequently it is shown that he had accessed the files? What are the ramifications for him, you and the editor does our decision to publish, knowing that there had been a misdemeanour, indicate complicity and therefore real embarrassment or does Eady's judgment get us off the hook?" Was that point made to you the following morning?
A. I cannot I cannot remember the exact nature of everything that everybody said in that room. What I've tried to reflect to you is what dominated our thinking, what informed the decision to publish.
Q. But the fact there there's been a misdemeanour was obviously exercising Mr Chappell. Of course, it was exercising Mr Brett for other reasons, or perhaps it ought to be have been.
A. Yes.
Q. It's a bit strange, it might be commented, that the existence of the misdemeanour was not brought to your attention, as the editor having to make the final decision. Is that right?
A. Sorry, I keep on trying to make the same point, which is
Q. Okay.
A. If if it had been the case that Mr Foster had brought this to me and said, "I'd like to get access to Mr Horton's email account for the purposes of this story", I would have said no. If Mr Brett had come to me and said, "Mr Foster has done this; can he continue to pursue the story?", I would have said no. If Mr Brett had come to me and said, "Do you think we should go to the High Court, given the circumstances of this story?", I would have said no. The problem was they came to me all after the fact and I had to make a decision, which was: what is the public interest in this story? And I believe it was strongly in the public interest. What are the consequences of having been to the High Court? What are the consequences of the fact that this had been raised with Lancashire Constabulary and how do you fit in the issue of Patrick Foster's behaviour within that? And all I can tell you is that the judgement I came to was that I decided to publish.
Q. Can I ask you whether the formal warning letter that was written to Mr Foster by the managing editor at page 59 of JH4
A. Yes, yes.
Q. whether the penultimate paragraph at page 60 correctly represents the position. The point is made there: "By your actions, the Times was placed in a position where it had to run the story, despite misgivings of senior editorial staff about its merits. That is not a proper basis on which decisions should be made."
A. I know you're going to find this ironic, but we felt that, having taken up the court's time and Mr Justice Eady having found in our favour, we had to, amongst other things, respect his judgment. We felt that we had little choice but to publish.
Q. There is an irony there, I think, Mr Harding, as you recognise. At no stage, is this right, did anybody suggest to you that these matters ought to be brought to the attention of Mr Justice Eady?
A. No. As I said, our statement Mr Brett, the then legal manager, as I understand it, did not believe and still does not believe that the court was misled. When I read these documents, when I went through them, I felt that information had not been disclosed to the judge and I felt that it was right that he should get an apology and I have written to him to apologise. LORD JUSTICE LEVESON The other person you could have asked, I suppose, was Mr White. Not you, but somebody. He was the silk, the leading counsel you were instructing.
A. Sir, I don't mean to be who would have asked him? Mr Brett had instructed Mr White. Mr Brett had not informed Mr White that this had happened. LORD JUSTICE LEVESON Yes.
A. We were all LORD JUSTICE LEVESON But then you had to make some decisions, didn't you?
A. Mm. LORD JUSTICE LEVESON And you were bothered about it, and indeed you're discussing whether it might have, in fairness to Mr Justice Eady's judgment in favour of the Times, been only appropriate to publish.
A. Yes. LORD JUSTICE LEVESON But the person who could have provided you with a window on it
A. Yes. LORD JUSTICE LEVESON was the person who had fought it for you.
A. I didn't know that Mr White had fought it for me. LORD JUSTICE LEVESON I know, I know, I know.
A. When you look back at all of this, sir I really hope you understand it's terrible. I really hope you appreciate that. I know that as keenly as you do. But I also hope you appreciate that the reason we're here and the reason we're discussing this is that we take this Inquiry very seriously, and as a result and every time we've learnt new things about this, we've brought this to your attention, and that's the reason that we're addressing these issues now. LORD JUSTICE LEVESON That is, of course, very important. MR JAY A few other points, Mr Harding. You've drawn to our attention indeed, I read it at the time the piece in the Times on 19 January of this year, which is the second page of JH1.
A. Yes.
Q. I've been asked by someone else to put this to you.
A. Where are we?
Q. Last page of JH1.
A. Yes. Yes, yes.
Q. It's a piece by your media editor. The second column, four lines from the bottom: "The role the hacking played in Mr Foster's investigation remains unclear."
A. Yes.
Q. "Mr Foster identified Mr Horton using a legitimate process of deduction based on sources and information publicly available on the Internet." Well, are you entirely happy with that sentence, "remains unclear"?
A. But, Mr Jay so can I try and explain the process here?
Q. Yes. LORD JUSTICE LEVESON This was I think I've got this. This was 19 January.
A. Yes. LORD JUSTICE LEVESON You've put this out and you've explained to me at some length about how, in the last couple of weeks, you've pieced all this together.
A. Yes. LORD JUSTICE LEVESON Which required you to extract emails and the rest of it.
A. Yes, and what happened, of course, is that we I'd brought this issue into the public domain in my original witness statement. When I came here two or three weeks ago, we didn't discuss it. It's then in the public domain. I then ask our media reporter to report the issue out. He comes out and what I'd personal been concerned about but didn't have personal knowledge of he confirms. Mr Foster certainly gained unauthorised access into the email account. LORD JUSTICE LEVESON Were you not aware of the evidence that I think the gentleman's name is David Allen Green had given to the Inquiry?
A. This is before that, I think. LORD JUSTICE LEVESON I see, all right.
A. So we then as is often the case with these things what happens is you report a story, you seek to answer a question, you get the answer. That in turn raises two questions, and the two questions that were immediately raised there were: how did this fit into the investigation and how did it fit into the litigation? As a result of that, I immediately wrote to you because I immediately realised we had a problem here. I sought to draw it to your attention. I should also say that the following day I also sought to get in contact with Mr Horton because I believed that he was owed an apology, and I understand, as you've mentioned initially, Mr Horton's conducted lawyers. After that, we then started picking up all of our emails, picking up all of the legal correspondence, legal information, and as a result of that we have the file that's before you today. MR JAY I have also been asked to put this to you: why did the Times carry out no formal investigation in June 2009, at the time the formal warning was given to Mr Foster?
A. I think this gets to the heart of it, really. We felt we had a problem in terms of the behaviour of a reporter and that in terms of the culture of the newsroom at the time, the culture asserted itself, that as soon as we were informed of a problem of behaviour, we took action. We didn't commission it. We didn't condone it. When it was brought to me, we confronted it and we said this kind of behaviour is unacceptable. We gave him the strongest possible sanction short of dismissal, we gave him a formal warning for gross professional misconduct, and because we believed we'd dealt with it, we didn't look back or look into it enough and didn't realise that there was looming, as we've since discovered, this whole issue about the conduct of litigation. LORD JUSTICE LEVESON Except, except, except and I appreciate that it's easy now to look backwards it was made abundantly clear that had somebody joined the dots together and realised that this was an offence under the Computer Misuse Act, which did not have a public interest defence, the Times would have taken a different view, and yet that information was known to Mr Brett.
A. Lord Justice Leveson, the whole story is about information that didn't get passed through, and as you remember, when we spoke last time in this room, one of the things that we discussed was the nature of an audit trail, and I said to you that I believed that the way that this should work is that any time a journalist goes to speak to a lawyer, it should be logged in the managing editor's office, and my thinking is this is not just related to this case, but generally that is a much more effective way of making sure that issues of concern and issues of legality are immediately brought to the attention of the management of the newspaper. I should say that if we'd had that process in place then, I'm sure the alarm bells would have gone off much sooner. MR JAY Who was it, though, who would have called for or instituted a formal investigation? Would it have required your imprimatur or could it have been done by Mr Chappell?
A. In that case, either. MR JAY Okay. Thank you very much, Mr Harding. LORD JUSTICE LEVESON Thank you for returning, Mr Harding. I appreciate that you've brought all this to my attention. I'm grateful. Thank you.
A. Thank you very much indeed. LORD JUSTICE LEVESON I think we'll take a little break. MR JAY Yes. We may have to take the next witness out of sequence because of the video-link and the fact that there's only a limited window of opportunity. LORD JUSTICE LEVESON When it the window of opportunity? MR JAY It's closing in the message is, subject to your view, if we could take the video witness next. LORD JUSTICE LEVESON Yes. I'm sorry to Mr Mohan. (3.54 pm) (A short break) (4.07 pm) MS PATRY HOSKINS Sir, we have Mr Morgan. Can I just check that Mr Morgan can see and hear us. Mr Morgan?
A. I can see you, yes.
Q. You can hear me all right?
A. I can, yes. LORD JUSTICE LEVESON Good afternoon, Mr Morgan, although I anticipate it's morning where you are. Thank you very much.
A. Yes. LORD JUSTICE LEVESON Thank you very much indeed for taking part in this exercise. I'm very grateful.
A. Thank you, my Lord. MS PATRY HOSKINS Mr Morgan, I understand that you may have an affirmation that you wish to read out. Do you have that in front of you?
A. Yes, I do. MR GARY MORGAN (affirmed) Questions by MS PATRY HOSKINS MS PATRY HOSKINS Could you state your full name to the Inquiry, please?
A. My name is Gary Morgan.
Q. You provided a statement to the Inquiry, Mr Morgan. Can you confirm that the contents of it are true and accurate to the best of your knowledge and belief?
A. Yes, I can.
Q. Mr Morgan, you explain at paragraph 1 of the statement that you are the senior vice president of Splash news and picture agency.
A. That's right.
Q. We're booming sound. Just pause for a moment. LORD JUSTICE LEVESON Carry on and we'll see. MS PATRY HOSKINS You explain at paragraph 5 your career history, and if I can just summarise it in this way: you are originally from the UK. You worked as a journalist with an agency. You then became a staff reporter on the Today newspaper. After that, you travelled and you met a gentleman called Mr Smith in LA in the course of the year you were there. He used the business name Splash. You joined him when you were 27 and then you have stayed since that time with Splash. Is that
A. That's right.
Q. an accurate summary? It has now developed in the US and the UK, and you've held the position of chef executive officer from 1996 until 2011. From that point on, you've been senior vice-president of Splash news and picture agency.
A. That's correct.
Q. I've correctly summarised your career history. Thank you. I'm going to now, please, describe very briefly how Splash operates, what it does, how many people it employs, paragraph 6 onwards of your statement, which you should find do you have a bundle which has behind it tab 10, your statement?
A. Yes, I do.
Q. You explain that you set up in California initially, but then in paragraph 8 you tell us that you set up a company in the UK in 2003. At paragraph 9 you tell us that you now in the UK employ 18 people, nine of whom are staff photographers. Is that still an accurate reflection?
A. That's correct, yes.
Q. Splash also has a number of websites, you explain to us. I'll pass over them by and large, except for the one that's described as paragraph 10(e). is one of your websites, which is a platform enabling members of the public to upload photographs. I'll come back to ask you about that. By and large, you are a global enterprise, you're a picture agency and you also run a number of websites. Is that a fair and accurate summary of your business?
A. That's right. Yes, it is.
Q. In terms of freelancers and that's the only piece of the jigsaw that's missing you explain at paragraph 12 of your statement that you have about 2,700 freelance contributors, of which about 15 per cent have UK addresses. So would it be fair to say this: that you employ a very small number of photographers but you have a very large number of freelance contributors providing photographs for your agency?
A. That's correct.
Q. Is that true of both the UK and the US operations?
A. Yes. We have about 40 staff photographers and the rest are freelance contributors.
Q. I want to ask you to agree a number of principles with me from the outset, Mr Morgan, if I can. Is it fair to say that the kinds of photographs that an agency such as yours will be after are the kinds of photographs that hopefully the market will pay a premium for?
A. Ideally, every picture would have a premium price, yes, but in reality perhaps just a few per cent do. The majority of pictures are non-exclusive.
Q. A photograph taken at a press event where there are lots of photographers is likely to be of less value than a photograph of a celebrity taken where there are no or fewer photographers around, ie off-duty photographs will be more valuable than on-duty photographs. Is that a fair assessment?
A. That is a fair assessment, yes.
Q. As a consequence, Mr Morgan, am I right to say that there is a financial incentive for photographers and agencies to seek photographs of celebrities and others in the public eye in circumstances that might be considered to be private?
A. I would say certainly there's an incentive to get exclusive photographs of celebrities, because if you're the only photographer there, the photograph is naturally worth more. However, we are expected, as an entertainment news provider, to supply photographs from all the events and non-exclusive events as part of our service.
Q. Right, so both?
A. Yes.
Q. Finally, as the head of a celebrity photographic agency, you have a responsibility, don't you, Mr Morgan, to ensure that your photographers respect privacy and don't engage in harassment?
A. Are you relating to staff and freelance or
Q. Your photographers yes, I think both. I'll come on to ask you about them specifically in a moment, but overall.
A. Yeah, we obviously do have a responsibility to make sure that the photographs we put out follow those rules, yes.
Q. Let me ask you then about the guidance that you give to your photographers. I'll ask you about employees and about freelancers, if I may. Splash is an international company, clearly subject to different laws in different countries. In the US, am I right in thinking that the protections that exist to ensure individual privacy are rather less than in the UK?
A. That's correct, yes.
Q. You note in the statement, paragraph 21, that you're sensitive to privacy issues in the UK. Does that mean that your photographers or freelancers in the UK are sensitive to UK privacy issues or just your UK-based photographers?
A. Well, UK-based photographers obviously the sensitivity in the UK is has a higher barometer than, say, in the US. So there are a number of rules and regulations we try to adhere to. We obviously adhere to the law and the PCC regulations. So we try to fit in with the way the media generally shoots content in the UK.
Q. What I mean is: when you are selling photographs to the UK market, how can you be sure that photographs operating in the US have not taken photographs in a situation that might breach the PCC code?
A. Well, as far as staff are concerned, we have a we exert a lot of control over staff photographers because we're telling them where to go and what to shoot, and we generally pick trained photographers or experienced photographers who are wise enough to know to call the desk if the way they're shooting if they think there's an issue, and obviously it's up to our desk to monitor that. With the freelancers, we have less control, obviously, but we try to corral that by a number of steps that we take when they upload and post uploads to try and catch any problematic photographs.
Q. I'll come back to freelancers in a moment. Can I just touch on your employed photographers. You say that your UK-based photographers are required by their contract to comply with the PCC code. So that's the nine photographers, is it, in the UK?
A. Yes.
Q. They're obliged to comply with it. Do you think that the PCC code is sufficient for the purposes of guiding photographs? It's not specific to photographers in any way. Do you think it's sufficient or do you provide a more specific code or guidance that they could or should adhere to?
A. I don't think the PCC is comprehensive enough for photographers at all. It seems to be directed towards editors rather than content-gatherers. It seems to be directed mainly towards the print side of journalism rather than the digital age or photographers generally. Obviously photographers have to stay within the boundaries of the law, and there are plenty of laws on the statute books that take care of things like, you know, speeding or traffic violations, things like that. I think the press cards that all of our staff photographers have that are recognised by the police help and I think a press pass system is a good system, one we have been pushing for by in the states, for example. But generally, the staff photographs we hire are expected to know the law, expected to know the PCC and usually have a lot of experience in news-gathering, to be able to have the knowledge to know when to stop or when to call the desk and ask questions. Otherwise we rely on our news and photo desks to oversee their behaviour.
Q. All right. You say that your picture desk assists photographers to apply general principles. What principles are they? Can you give us an example of what they would say?
A. Obviously the photographers sign contracts that confirm they will stick to the PCC and the rules of law, and generally the media works within the rule of law. So the picture desk in the UK is expected to not necessarily perform on a daily basis but to advise and educate and talk to the photographers on a regular basis and instruct them if there are changes in the law, if there are things we should or shouldn't do. For example, we have a list of celebrities that we know we shouldn't go to their homes or to their place of work, et cetera. So we try to up at a time them as often as we can with the pertinent information.
Q. Is that done by training, by the sending around of an email, on an informal basis? What do you mean?
A. Not so much formal training, but certainly by talking to them on a daily basis or by email, if there's something we need to alert them to.
Q. You have just referred to a list of individuals that you would know not to photograph. It's referred to in paragraph 21(e) of your statement as a "no shoot list". You say you have a document which you call a "no shoot list" which contains the names of individuals who may not be photographed for Splash, and that's communicated to staff and freelancers on a regular basis. Why would an individual appear in a "no shoot list"? Is it something that they request? Is this court orders? Can you help us?
A. We monitor in the UK, we monitor the orders that are put into place when celebrities complain or when they ask for behaviour patterns to change, usually through lawyers sending out letters to other agencies or newspapers, and one of our responsibilities is to make sure we're not taking photographs that will put our clients at risk. So we monitor those lists and we update them regularly. It's actually updated from the picture desk and emails are sent out whenever there's an update to that list.
Q. Am I right in understanding your answer is that you monitor court orders, which you receive
A. We're not actually yes, that we receive or that we know others are receiving. We try I to be proactive in that.
Q. What if a celebrity was to get in touch with you or their agents were to get in touch with you and ask you to refrain from taking photographs. Would that work? Would that give them priority on the "no shoot list"?
A. Yeah, we'd certainly talk to them about what the issue was and why they wanted that, and if we felt that their plea was good, then we would do so.
Q. What if a celebrity did not approach you but made it absolutely clear by their behaviour that they had no interest in being photographed, they were intensely private? Would that be something you might consider? Would that be someone you might consider for inclusion on the "no shoot list"?
A. I'm not quite sure what circumstances you're referring to. If a celebrity is in a public place, perhaps, then it may make a difference as perhaps if they're in another circumstance. Can you define exactly what you mean?
Q. Yes, perhaps I haven't made myself clear. You have a "no shoot list". I'm asking whether any individual could ever be placed on it by you solely on the basis that their behaviour has made it clear that they are intensely private. For example, someone who brings litigation on a regular basis in order to protect their privacy or someone who simply, it's clear from their behaviour, has simply no interest in being photographed. Would you ever include a person like that, who has not sought a court order against you, has not actually formally contacted you would a person like that ever make it on to your "no shoot list"?
A. I've never come across a situation like that, but I would certainly look at it but I couldn't say with definition that I would or wouldn't.
Q. All right. LORD JUSTICE LEVESON So it would help you, would it, Mr Morgan, if there was some available information to your company of people who really were likely to indulge in litigation if they were photographed? That would be of value to you?
A. I think greater co-operation between celebrities and agencies on realising what the boundaries will and won't be can't do any harm. MS PATRY HOSKINS I'm going to ask you now about freelancers. You touched briefly on the attempts that you make to ensure that they behave in a manner that's ethical and so on. Can you tell us a bit more? Do you require them to sign up could a code of practice or any kind of contractual obligation that any photo they will submit will be compliant with the PCC code or that it will be taken in a situation where the celebrity has not been harassed or is there any mechanism that you put in place?
A. Photographers do have to sign a media upload agreement in which they pledge not to invade privacy or break the law in any way. The PCC regulations are available on the Splash website internally. Some freelance photographers are put onto we have a process called "fast and slow track", and we have a back office that has a list of objective terms, such as nudity, swearing, things like that, to hold up pictures that have captions that may look libellous or dodgy for whatever reason, and then those processes are designed to alert the desk to any problems. Freelancers generally obviously, we don't exert control over how they behave out in the street, so our only recourse is to try and monitor the photographs they're uploading and to put into place procedures that will either proactively or retroactively pull pictures that are a problem.
Q. Would you blacklist a freelancer whose photographs regularly failed to comply with the tests that you apply?
A. We would, yes.
Q. Have you ever done that?
A. I don't think we have, no. We've moved occasionally, photographers in the US, fast track to slow track, which is a commercial disadvantage for them because their pictures don't move as fast, and moving pictures to market very fast is important from a business point of view, but generally we the only resolution we have with freelancers is to put them on slow track, talk to them, or ultimately not to continue using them.
Q. Are the you aware of ever not using someone for reasons that their photographs were simply obtained unethically or in breach of someone's privacy?
A. I do recall in the UK I think of us cutting off one freelancer, but I think that was mainly for captions rather than the way she was acting.
Q. Let me give you a specific example, please. It's the example of Ms Hong, the lady who recently had a baby with Hugh Grant. Are you familiar with that case, Mr Morgan?
A. Yes, I am.
Q. I think I asked that you have papers available relating to that case. I don't know if you have a full panoply of papers available in front of you so I'll go through the chronological, if I can, and you can tell me whether you agree or disagree. I'll do it as briefly as I can.
A. Okay.
Q. Start this way. Shortly after Ms Hong gave birth, she was subjected, it is said, to a sustained campaign of harassment by photographers outside her home. Mr Grant gave evidence to that effect at this Inquiry. He also provided a witness statement which made those allegations. Are you aware of that?
A. Yes, I am.
Q. I understand that on 11 November 2011, an injunction was obtained on behalf of Ms Hong against persons unknown, and the objective behind the obtaining of that injunction was to essentially prevent the campaign of harassment that she'd been suffering, so to prevent photographers from doing a number of things or anyone from doing a number of things, including harassing her outside her home, taking photographs and so on. You're aware of that injunction that was obtained?
A. Yes.
Q. We're also told it's in the public domain that shortly after the order was obtained, a copy of it was circulated to a number of people, including your agency. You accept that you received that?
A. That's right, yes.
Q. This was one of the orders you were describing earlier that you would be aware of.
A. Yes.
Q. Can we confirm that at that point Ms Hong made it onto your "no shoot list"?
A. Yes. As soon as we receive a letter from a lawyer regarding an injunction or a legal complaint, we automatically put them onto a "no shoot list" and withdraw any photographs in question while we investigate the claim.
Q. All right. Again, it's in the public domain that Ms Hong's solicitors then made enquiries of the DVLA in the UK in relation to a number of cars that had been outside Ms Hong's house at the relevant times, including one car, it was alleged, which had driven at Ms Hong's mother outside the house in a particularly aggressive manner. Again, having seen the papers, you should be aware of those enquiries that were made of the DVLA.
A. Yes.
Q. Was that a fair and accurate assessment of what happened? The car which had been driven at Ms Hong's mother was identified to a gentleman called Colin McFarlane. Can you confirm that Colin McFarlane works for Splash?
A. He does.
Q. Is he an employed photographer or is he a freelance photographer?
A. He's employed.
Q. So he's one of the employed photographers whose contract makes it clear that he ought to abide by the PCC code; is that right?
A. Yes. Yes.
Q. When this information was discovered, an application was made to join Mr McFarlane and Splash in the proceedings, and as I understand it, shortly before the return date of 2 December of last year, you sent in some correspondence to the effect that although you denied any wrongdoing on the part of Mr McFarlane or Splash, you would consent to the order being made, and on that basis, you were joined as defendants in that claim. Is that a fair and accurate assessment?
A. That's correct. Yes, it is.
Q. Given the allegations that were made, can you tell me what action you took to ascertain what the behaviour of Mr McFarlane had been during the relevant period?
A. Yes. We had the London picture desk interview him and then I interviewed him afterwards. We had him show us on a Google map a GoogleEarth map exactly where he was and where the person that we now know to be the mother we didn't know at the time was standing and his version of events that day.
Q. You don't have to tell me any more about the detail of that, but do tell me this: were any disciplinary proceedings taken against him?
A. They weren't, because I believe his story that he didn't drive at her, and at this point in time it's her word and his word. So we have no there's been no decision either way on who's correct. I think there's some confusion about that day as well. There are pictures of two or three cars and there's reports that that day she was out with her daughter and we didn't see her with her daughter. So I'm not 100 per cent sure that she was referring to Colin. To be honest, I don't know, but I would highly be suspicious of Colin doing that.
Q. All right. I appreciate what you say, that you've interviewed him, you've listened to his version of events. Assuming for a moment that it was established that this behaviour did occur, what would be your view of the behaviour?
A. If it was established that he had driven at this lady, then he would be fired.
Q. I'm going to ask you now to turn to tab 12. Hopefully you have there an apology that Splash made to David Walliams and Lara Stone. Do you see that?
A. Yes. Yes, I do.
Q. For those who don't have it, this is an apology you made on 30 August 2011, and the apology says in very brief terms: "In April 2011, photographs pursued David Walliams and Lara Stone while they spent the day together in London. Splash subsequently made these images available for onward publication. We wish to convey our apologies to the couple for the harassment and unwarranted intrusion into their private lives and make it known that we have reimbursed all legal costs and have paid them damages." Do you know whether or not that apology was made in the light of a previous injunction?
A. The apology was made as part of the settlement to stop the proceedings going further and costing both sides more legal fees.
Q. Had there been a previous injunction preventing you from taking photographs or anyone else from taking photographs in this way?
A. I don't think there had been an injunction against us. I don't recall completely, I am afraid.
Q. You don't have a copy of those papers?
A. I don't have a copy of those papers, no.
Q. I don't want to be unfair if you don't have the relevant papers. Let me turn back to your statement very briefly. Right at the end of your statement, please, page 11, the second-last page, you are asked some questions about Charlotte Church. You are asked whether your agency has ever instructed any photographer, employed or otherwise, to follow or take photographs up the skirt of Charlotte Church. I can't put it any more delicately than that. You say no, and then you say this do you see this, paragraph 42: "Many celebrities have a symbiotic relationship with the press and some celebrities willingly reveal themselves as part of the promotion of their image. Where it is clear that the celebrity has knowingly and willingly been photographed in this way, then we take the view that such photographs are justified." Are you genuinely saying to this Inquiry that celebrities co-operate with photographers to have photographs taken in this way?
A. Yes. It happened in the US.
Q. And what steps do you take to ensure that the celebrity has consented before obtaining such a photograph or syndicating such a photograph?
A. Generally, it's by behaviour, and in the case of one celebrity, it was the fact that what is used the slang term used in the US is "going commando", and it became a it became a well-known practice of certain three or four lady celebrities to do this, and the fact they did it multiple times in a very short period of time indicated that the behaviour was wanton.
Q. So in the case of three or four people, you say?
A. Yeah, it was three or four particular celebrities in the US that went that actually went along this line for a little while. It was kind of a prank, almost.
Q. And you can tell whether someone has consented by their behaviour? Is that your evidence?
A. Yes.
Q. I'm going to ask you finally about people paparazzi and citizen journalism. You invite people, through the people-paparazzi website, to contribute photographs, individuals, members of the public, to contribute photographs. Are they subject to contractual terms and conditions?
A. Yes. People-paparazzi allows members of the public to upload pictures through an email. We look at those pictures on email, and if we think the picture has any relevance, then we contact the person, asking them how the photograph was taken. If we want them to submit the photograph, we then ask them to fill in the media distribution agreement which applies to all photographers.
Q. What kind of questions would you ask them to ensure that, again, the privacy of the celebrity has not been infringed, the celebrity was not being harassed at the time the photograph was being taken and so on? Because presumably members of the public don't have access to the training and the daily briefings that you've been speaking of. So what questions are asked?
A. Kind of questions usually if there's a picture that we want, we're pretty sure when we're talking to the person anyway that it looks like it's a public place or event. You know, if it's a picture of them inside a house or, you know, inside a hotel or something, we'll know that there's more of a risk there. So we'll ask them where they took it, how they took it, where they were, what camera they were using. Did they talk to the celebrity? How did they know the celebrity was there? We'll go through pretty much the same kind of questions we would ask a photographer. MS PATRY HOSKINS Mr Morgan, I think those are my questions. LORD JUSTICE LEVESON Thank you. Mr Morgan, I have a couple. First of all, entirely confidentially and to be kept within the Inquiry team, would you be prepared to send us a copy of your present "no shoot list" for the UK?
A. Yes, my Lord. LORD JUSTICE LEVESON Secondly, you've made the point that the PCC code doesn't really cover many of the issues or some the issues that you believe would be valuable to cover for photographers.
A. That's correct. LORD JUSTICE LEVESON Would you, please, also let me know what you think it could cover, how you think it could cover them, and any suggestions you have to make that would assist. I'm not trying to prevent photographs being taken but I am trying to prevent them being taken in a way that is disorderly or is going to infringe people's rights.
A. I'd be LORD JUSTICE LEVESON You have an enormous amount of experience, Mr Morgan, and I'd be grateful if you'd be prepared to share that with us.
A. I'd be happy to. LORD JUSTICE LEVESON Thank you very much indeed. MS PATRY HOSKINS Sir, before I sit down, I've been told that there is one statement which needs to be read into the Inquiry. Nothing to do with Mr Morgan. LORD JUSTICE LEVESON Mr Morgan, thank you very much indeed and I am grateful for you participating in this exercise over a live link. It's saved you a lot of time and trouble and allowed us to get the benefit of your evidence. Thank you.
A. Thank you, my Lord. MS PATRY HOSKINS The statement to be read in is that of Mr Simon Citron from Yahoo. LORD JUSTICE LEVESON Thank you very much. We'll disconnect Mr Morgan, with no disrespect to him and we'll carry on. MR JAY Sir, I am going to recall, please, Mr Mohan. LORD JUSTICE LEVESON Thank you very much indeed. MR DOMINIC MOHAN (recalled) Questions by MR JAY MR JAY Mr Mohan, there are a number of specific matters I'd like you to deal with, please. The first relates to phone hacking, matters which have been drawn to the Inquiry's attention, relating to the time when you were editor of Bizarre. In the bundle which has been prepared, look at tab 5. LORD JUSTICE LEVESON One of the great problems of having been the first editor to give evidence is that in the period which has elapsed since you gave evidence, many things have been sent to the Inquiry, and it's only fair that you be given an opportunity to deal with them.
A. Thank you. LORD JUSTICE LEVESON Right. MR JAY There are a number of similar pieces, Mr Mohan, in Bizarre, and the question is: does a pattern emerge? Can we look first of all at this article. It's 9 April 1998, so self-evidently we're going back in time a considerable period. You are editing Bizarre with someone called Victoria Newton. We can see that at the top of the page. This piece is: "Liam and Patsy on the rocks. 'I've had enough,' she tells mates." This relates to Liam Gallagher's marriage to Patsy Kensit. If we can look at the fourth insert: "A pal of the couple said last night: "You'd have thought after being on tour for such a long time, Patsy would have wanted to see him, but they just don't appear to want to be together or even to talk to each other. She was only an hour away by plane but she didn't come back and has been telling people she's just about had enough. The couple married in secret [et cetera] They are a stream of fierce rows over the phone while Liam was on the road And then it continues. What was your source for that story, Mr Mohan? Can you recall?
A. The articles you're going to point me to, obviously a lot of them are up to 14 years old and I can't remember specific sources obviously. But to talk generally I just wanted to give you a picture of showbiz reporting. I mean, many stories really generally are obtained through going to events, talking to celebrities at events, at nightclubs, in bars. At this kind of time I was travelling the world interviewing a lot of celebrities who would tell me things off the record, for instance. I mean, I don't remember the specific who wrote this story or the specifics of it, so
Q. We can see that actually from the bottom. The showbiz team we can see Sean Hoare's name.
A. Yes, he was a member of the team at that point.
Q. Yes, and his name resonates with the Inquiry in certain ways and it also features in relation to other articles. Are you sure that this article was not obtained by hacking into a telephone, in particular the voicemail messages?
A. It doesn't actually mention any content of any voicemail message, and actually often when you get a story about a relationship, somebody starting dating, you'll usually ring an agent or a PR, and a classic response from them will be: "It's early days, they've been talking on the telephone." I can remember many, many examples of that, and similarly, I also remember one specific story not one of these where a very well-known A list celebrity told me, off the record, that another female celebrity had been calling him repeatedly, and I ran a story as a result. So I don't know the specifics, but it would not be uncommon for the stories to be obtained that way.
Q. Even information such as "they had a stream of fierce rows over the phone"? You think that was provided by the pal who is referred to, rather than by some other means?
A. I mean, there were a lot of stories that we were receiving at this time about Liam Gallagher and Patsy Kensit and there were a lot of contacts reporters had in that kind of area, so I would think a more likely explanation would be that it would come from one of them.
Q. It's really whether a pattern builds up through this material. Item tab 6. We're now onto 17 July 1998. The bottom right-hand side, if you're with me there: "Eastenders star Martine McCutcheon is dating pop sensation Mark Baron, we can reveal." A bit later on: "Pals say It's always that formulation, "pals say": that the pair had phoned each other every day since they met. One says, 'They liked each other straight away and got on like a house on fire Et cetera. Again, the showbiz team, we see Sean Hoare's name, don't we?
A. We do. Again, I can't remember the specifics of the story. I don't think you probably expect me to. In fact, I can't even remember some of the celebrities mentioned in the stories. But again, I remember that there was a one of the journalists on the team had a good Martine McCutcheon contact at the time and we would receive quite a lot of information from that individual.
Q. The formulation "pals say" or a "pal", that isn't a sort of code for some other means of obtaining information, is it?
A. No, I think that often if you do talk to an agent or a representative or the celebrity themselves or a friend, obviously, you could describe them in that way. I mean, if I remember, for instance, the one I've just referred to about the A list celebrity speaking to me, you know, about the being bombarded with phone calls. He specifically said that he didn't want to be named, and so therefore it would have been attributed as a pal or a friend.
Q. The next one is an exclusive story. This is to do with an Eastenders star, Sid Owen. Do you see that on the right-hand side?
A. Yes.
Q. He's back with his girlfriend, Lucie Braybrook. She'd moved out, but: "Heartbroken Sid, grease monkey Ricky Butcher in the BBC soap, made a series of phone calls begging her to give their two-year relationship one more chance." Are you sure that wasn't obtained by hacking into a voicemail?
A. Again, I can't recall the specifics, but I mean, we can go through every single one but I don't feel I can be expected to remember exact sources from 14 years ago. LORD JUSTICE LEVESON Would to be fair, Mr Mohan, that you'll be given stories by people in your team, and if they appeared right to you, and perhaps checked with your own sources, you wouldn't necessarily enquire where they had come from?
A. Yes. We would get stories from numerous sources: journalists who worked on the team, other journalists on the paper and agencies and freelancers. MR JAY There's another one at tab 8. Again, the showbiz team is Sean Hoare and someone else this time. The headline is "Sporty's got the hots for Chilli singer": "Sporty Spice, Mel C has been secretly dating Red Hot Chilli Peppers' Anthony Kiedis, Bizarre can reveal." And then moving on a bit: "Wild Anthony, who once dated Madonna, asked Mel out and has been bombarding her with phone calls ever since." Then there's reference to what a source allegedly said. Again, we're going to see in relation to future articles the term "bombarding her with phone calls". That's a turn of phrase quite often deployed. Are you sure this one wasn't obtained by hacking into voicemails?
A. I cannot remember the specifics of this story. That's all I can say.
Q. If I was to
A. It may well be that again, as I say, you would have a tip that somebody was perhaps dating. You would ring an agent or a representative, and they may well say, "Look, it's early days, they've been talking on the telephone but there's not much more to it." I can remember having phone calls along those lines.
Q. There's another bombardment with phone calls in the next one, tab 9. It's to do with Robbie Williams. Under the subheading "Fault", a "close pal" allegedly said something. In tab 10, I think it's another "bombarding with phone calls", but let me check. No, the reference this time is to "making late-night calls". A lot of information is obtained in or around knowing what is happening in telephone calls, isn't it?
A. Well, it's a bit of colour to illustrate a story about a relationship or a split.
Q. Might these stories have been obtained by hacking into voicemails?
A. Look, I can't say 100 per cent, and there is an internal investigation being conducted at the moment by the Management Standards Committee at News International, as you well know. But what I would say is you've picked a number of stories over more than three years, and I'm sure if you took a sample from any number of newspapers over a three-year period, there would be numerous references to phone calls.
Q. There's quite a good one at tab 11, Mr Mohan. This time I think you're the sole editor of Bizarre, 18 April 2000: "Watch out, Mel C, man eater Caprice has her sights set on your boyfriend. The sexy blonde has been bombarding 5ive singer J with phone calls." So we have another bombardment, don't we? Then a bit later on, under "Fancies": "An insider tells me she really fancies J and keeps ringing on his mobile. She's made it clear from the start that she wants it." That insider was not someone who'd been hacking into voicemails, was it?
A. Not that I'm aware of, no. Again, I can't remember the source of the story or who wrote it.
Q. Tab 13. This time it's the footballer. More bombardment: "The Manchester United winger has been bombarding the model with phone calls after they met at the World Sports Awards in Monaco." Do you have that one, under tab 13?
A. Sorry.
Q. 4 August 2001. So there's the bombardment, and then in the middle paragraph: "They have spoken on the phone loads, but she isn't interested." We don't know who wrote this story, do we?
A. I don't recall, no.
Q. What might be said in relation to these stories is that there's a small kernel of truth, that is to say information obtained by hacking into voicemails, and an awful lot of embroidery and confection around that kernel of truth which your column simply makes up. Is that true or not?
A. I'm not aware of that being the case, no. I'm not aware that illegally accessing voicemails were the source of any of these stories.
Q. Are you sure about that?
A. I have no knowledge of it. It's over a three-year period. There's we published many, many stories over a period of a year. In fact, we publish over 100,000 articles a year in the Sun this is a very small selection over a three-year period.
Q. Yes. You're aware who provided the Inquiry with this material that came to us actually by a circuitous route. That perhaps doesn't matter much, but the suggestion is there are many more stories like that. That would be a fair comment, wouldn't it?
A. I'd have to check.
Q. You say you made a joke at the Shafta Awards 2002 about lack of security at Vodafone, I think it was, in relation to the Mirror. That joke created the biggest laugh or cheer of the night, didn't it?
A. I don't remember what got the biggest laugh and what didn't.
Q. But at an awards ceremony like this, you're going to come out with in-jokes rather than something which is old news. Would you accept that?
A. It was a joke that I made. We talked about it last time I was here. The award ceremony was sponsored by Vodafone, so I guess it popped into my head and seemed apt.
Q. But you must have come up with it because it was something which you knew your audience would know themselves was something which was regularly talked about?
A. As I said last
Q. It was something which was current, really, in your business, wasn't it?
A. As I said last time, there had been rumours swirling around the industry, and I think I've referred to several articles earlier that had put that information in the public domain, so it was known not only in journalism but to the broader public, I would suggest.
Q. When you gave your evidence last time, had you read the transcript of Mr Piers Morgan's evidence?
A. I watched Mr Morgan's evidence. I don't know that I'd read the transcript.
Q. No. Because are you aware that he used the term "rumour mill", didn't he?
A. He may have done. If you're telling me he did, then yes.
Q. He did. Page 66 of the transcript for 20 December last year. That was exactly the term that you used, wasn't it, when you gave evidence last time?
A. Yes, if you're if that's on the transcript, yes.
Q. Then you said you couldn't remember precisely what the basis of the rumours might be. I paraphrase your evidence. Are you sure about that, Mr Mohan?
A. Yes.
Q. I suggest to you that you deliberately used Mr Morgan's phrase, "rumour mill", because it was, if I may say so, similarly disingenuous, that each of you knew that voicemail hacking was going on in your respective organisations. That's the truth, isn't it?
A. No. That's not the not the case.
Q. Okay. May I move on to a separate topic and may I deal with it in this way, by taking it through stages. The first stage is the Page 3 girl, which you cover in your witness statement.
A. Yes.
Q. In a nutshell, your position is in your own words, please, Mr Mohan. I'm not going to put words in your mouth or read out your statement. You set out your stall in relation to Page 3.
A. There's obviously been quite a lot of criticism I've read of late of Page 3, but my position is I mean, this was first published 42 years ago, and I think it's meant to represent the youth and freshness and it celebrates natural beauty. We don't have models who have had plastic surgery on the page. It's obviously legal. We're allowed to publish those images, and I think it's become quite an innocuous British institution where, as a parent myself, I'm more concerned about images that my children might come across on the Internet or on digital devices. So I think it's a part of British society. I think on our 40th anniversary, I've included a piece that was written by the feminist author Germaine Greer. She says: "If I ask my odd-job man what he gets out of Page 3, he tells me simply: 'It cheers me up.'" But what I would say is I think that the ultimate sanction lies with the reader. The reader is not compelled to buy the newspaper on a daily basis, so I think it is tolerated in British society by the majority of British society. I don't think that the images are sexualised in the way that even some clothed images are in magazines, advertisements, pop videos, and I think that it's worth looking at Page 3 in a wider context, and in the Sun's context of women's issues that we cover. A lot of the Page 3 girls, they're much more than models. They've become ambassadors for the paper. A number of them have travelled to Afghanistan, are heavily involved in Help For Heroes and raising money. Some have gone into careers in photography, and I think you shouldn't look at Page 3 in isolation. You should look at all the other work we do with women's issues. I outline quite a few of the campaigns here that we've run, one against domestic violence in 2003, which there's also a letter from the head of one of the domestic violence charities, Refuge, which is attached. There's the Stop Rape Now campaign, a Herceptin campaign which was trying to draw attention to the availability of the Herceptin cancer drug. Also last year we launched a campaign after the implant scandal, where we demanded safer surgery for women, and also Jade's Legacy, which was set up after the death of Jade Goody, which was raising awareness of cervical cancer screening. So I think some of the allegations that I've heard about the Sun being sexist in some way and not tackling women's issues I think is a false one.
Q. It has been said that Page 3 treats women as sex objects is therefore not merely demeaning but is harmful. As against that, you may pray in aid the wider public interest in freedom of expression, which of course the Sun is entitled to put forward, but do you see any merit in that first objection? The objectification of women?
A. No, I don't, because I think that the girls are very healthy, for instance. They're good role moulds. If you look at a lot of catwalk models, they're stick thin. Some of them don't look they healthy. So I would disagree with that.
Q. Can I deal with a number of points which are around Page 3. One of them is before your time. Under tab 17 this is before your time as editor I don't have the date, but this is a piece which is rudely critical of Clare Short, isn't it?
A. It is.
Q. Is this appropriate language, do you think, to use, Mr Mohan?
A. It's not probably something I would run now, no.
Q. To be fair, I'm sure this isn't you, and we don't have a date for it, but we have an earlier piece for which we do have a date, tab 18. This is January 2004, when you're working for the paper but you're not editor. I think you'd left Bizarre by then. Where were you in January 2004 within the Sun?
A. I think I would have after I left Bizarre, I became a columnist. I had a weekly opinion column in the paper.
Q. Did you have any involvement in this piece we're looking at?
A. No. I don't believe I did.
Q. Is it the sort of piece which the Sun would run now, do you think?
A. Possibly not in that way, no. I mean, I think there is an article in actually, I'm not sure it's in this piece. It was in one of the submissions from one of the women's groups, but I ran a similar piece sorry, I ran a piece in the run-up to the last election where which was about Harriet Harman and Lynne Featherstone because they were claiming they wanted to ban page 3, but I didn't use that kind of language that was used in the previous article. It wasn't as we weren't on the offensive in that way.
Q. Not as offensive, frankly.
A. Possibly.
Q. Possibly or probably when one looks at it, Mr Mohan. What do you think?
A. As I say, I don't think I would run it in that way now, although I do think I mean, clearly "fat and jealous" is in quotes. It is a quotation from somebody.
Q. Frankly, there's a rather, if I may say so, stupid piece of popular science, which is tab 19.
A. Mm.
Q. Which is a really ridiculous attempt to suggest that looking at Page 3 makes you brainy. The point is being made that it might stimulate mental activity but it doesn't stimulate improvement in brain function. You wouldn't support that sort of journalism now, would you, Mr Mohan? Or would you?
A. I think that was a cheeky interpretation, really, of a scientific survey. I think tongue was firmly planted in cheek when that was written.
Q. So it was a joke and we shouldn't take it too seriously; is that right?
A. I think another one of the science groups actually did praise our science coverage. I mean, one of my first jobs as editor was appointing Professor Brian Cox as our Sun professor, who I think I mentioned at my last appearance. LORD JUSTICE LEVESON Not only did you mention it, but I think I referred to it when the science representative came to give evidence. But I am sure you understand the point that she was making, that sometimes I'm not talking about this article particularly, but sometimes the headline creates a concern or a problem which detailed understanding of the research doesn't maintain. That's obviously a problem.
A. Yes, and obviously our job is to try and really make that information as concise as possible and maybe explain a very complex and detailed scientific report in several hundred words. LORD JUSTICE LEVESON Yes, and you will doubtless recall that I've applauded that, but then it's quite important that those who are responsible for writing the headline don't ruin the effect of the very valuable piece of writing that you've done by creating a headline that will certainly grab attention but actually misstates the position.
A. I understand. MR JAY Taking it one level lower, if I can put it in those terms and as soon as I show you the material, perhaps you'll agree shall. If you go to the Object submission, which is under tab 18. This was evidence given I think exactly two weeks ago. If we look at 54276
A. Could I stop you there? I think I might have a different bundle here.
Q. I'm terribly sorry. It's tab 16.
A. Got it.
Q. 54276? LORD JUSTICE LEVESON If you say the page number of the
A. Page 6. MR JAY Page 6 on the internal numbering, if yours hasn't been LORD JUSTICE LEVESON I don't have a numbered version. MR JAY I'm terribly sorry. LORD JUSTICE LEVESON Yes, page 6. MR JAY They've taken one week in the life the Sun, and indeed other papers, to be fair, from 14 to 20 November, and we see some pieces which, on any view, are unpleasant and derogatory, aren't they? The first example at the bottom of the page, the reference to Mitchell brothers. Do you see that one?
A. I do.
Q. Why do you use language like that?
A. I think this has to be put in context. This was on the Bizarre column, which Gordon Smart, who you heard from it's written with it has a certain character to it, maybe slightly laddish humour, and it's meant to be humorous. I'm sure Kelly Brook wasn't particularly offended. She's made quite a good living out of wearing not too many clothes, and actually this picture was sent was an official picture, I believe, sent out by the film company to promote the film.
Q. Maybe it's not so much the use of the picture, although one could debate that; it's the usual of "Mitchell brothers". Are you proud of that language?
A. I think it's a humorous term. I mean, it's obviously referring to the two rather large bald headed men who appeared on Eastenders. I think it's a comedy mechanism which some people may have found funny; some may not.
Q. Example 3 on the next page, page 7, or 54277. It's difficult to read this one, I understand. Can you see what it's about, though: "The Sun trials Debenham's invisible shaping bum boosters by testing men's reaction to a woman's bottom when she stands at the bar and bends down at work. Success is marked when men ogle. In this way, the Sun eroticises a form of sexual harassment, making it appear that it is what women should and do seek from men." It's a fair point being made there, isn't it?
A. I think it was simply a feature where a new form of underwear was being road-tested by a female, and it was tested in a light-hearted ways, and actually I think if you read the women's verdict, she does actually say that it made her feel quite uncomfortable wearing the underwear.
Q. But "success is marked when men ogle"; that appears to be the message, doesn't it?
A. I can't see the exact words, but perhaps. Do you have it?
Q. I can't see the exact words either, but I have seen it on another version of this. Example 4. You can see it's a fictitious scenario, but it's some would say it's silly, but some would say it's offensive. What would you say it is?
A. Well, the Sun is its humour and its light-hearted nature has really been the key to its success, in my view. This is actually a picture provided by Alison Jackson, who is a very, very well-respected photographer who spoofs different scenes. This shot showed Prince Harry pinching Pippa Middleton's bum. Pippa Middleton's bum had obviously become a bit of an international sensation after the royal wedding and I noticed recently her Pilates teacher released a DVD which is basically teaching women how to get a bottom like Pippa's. So I think it's just a bit of highlight-hearted fun based around a picture by a very respected photographer.
Q. Well, issues of taste and offensiveness fall on one line of the divide in the code, but is it not at least arguable that this falls on the other line because of the point that's made here, that it eroticises sexual harassment. Is that really a message which the Sun wishes to bring across?
A. I disagree with that. I don't think it eroticises sexual harassment. I think it's an amusing picture which would neither have offended, I wouldn't think, Pippa Middleton or Prince Harry.
Q. But it assumes that there's consent, doesn't it. Why should we assume that?
A. Well, I look, the picture was supplied to us by Alison Jackson, who, as I say, is a very, very well-respected female artist, photographer, who specialises in these kind of stunted images.
Q. The last one I mean, you've seen these examples. There isn't time to go through all of them, but if you go to page 9 on the internal numbering, or 54279, example 13.
A. Mm.
Q. It's a very offensive headline: "Rooney tart's dad has heart attack." You see the point that is fairly may, or I suggest to you it's fairly made: "Rooney keeps his name. However, the prostituted woman from whom he paid for sex acts is labelled with the pejorative derogatory label 'tart' in an article about her father's heart attack." It's devoid of humanity and it's offensive, isn't it?
A. I think the word "tart" has been used in headlines referring to prostitutes for many, many decades. I do think in this context it does grate with me and it's something I would think about greatly before doing again.
Q. Yes. May we look at the submission by Trans Media Watch, coming to give evidence tomorrow. This is under tab 14. It's fair to say that although I'm asking questions of you, you're not the only paper singled out, both by Object in their submission and Trans Media Watch in their submission. But if we could look at page 12 on the internal numbering. It's our page 58521. It's not that clear, the way it's come out in the photocopy. It's a piece, I think, for 24 October 2009. Were you the editor then? I can't recall.
A. Yes. Several months in.
Q. I think you'd just been made editor.
A. Yes.
Q. "Burly [and then the name has been redacted] has shocked trucker pals by telling them: 'Call me [then it's obviously the new name].' The lorry driver left workmates stunned when he revealed his sex swap, but insists they're supportive." Then it's "he said". The objection here is twofold: firstly, the inaccuracy, the use of the male pronoun, and secondly the use of the adjective "burly". Why is language like that used in the Sun, Mr Mohan?
A. I think maybe looking back, this does look a bit insensitive, but what I would refer you to is in the recent past we've done several similar stories about transgender individuals and there was one only last week, in fact, involving a woman called Crystal Warren, and I think that we have improved our reporting in these matters. In fact, after the I don't know if you have this, the front page story last week involving Crystal Warren? She actually wrote to me a few days ago, thanking me for the sensitive way the Sun covered the story, and similarly, there was another example last year where we had a piece about a transsexual operation which had taken place on a child's 16th birth and I actually received a letter of thanks from the head of the Mermaids charity who praised the way that we'd reported that. So I think we've improved we've raised our game in terms of transgender reporting.
Q. So is this your evidence, Mr Mohan, that this sort of piece and we can see the before and after photograph of course the faces have been pixelated to avoid identification is not going to be replicated, is it, in the Sun in future?
A. Well, I'm making attempts to do that, yes, in the news pages, yes.
Q. How are you doing that?
A. In fact, one of the journalists who wrote one of the articles was invited to speak as a transgender conference and I would be quite keen for I spoke to you last time about some of the workshops that we've had for journalists about sensitive issues, and I would be quite keen to maybe get one of those groups to come in and talk to my reporters, my staff. LORD JUSTICE LEVESON But it raises a more over-arching point, whether one's talking about Object or this material. Do you think it would be worthwhile to ensure that whatever mechanism there is for complaints allows the possibility that groups who have concerns about the way in which particular stories are presented, or people presented, should be able to enter into a dialogue and have a forum through the complaint system to raise that with newspapers?
A. I mean, that's really a formalisation of what we're already doing informally at the paper, in terms of we had the Samaritans group came in last week, for instance, and spoke to the staff. You're talking about a more formalised method? LORD JUSTICE LEVESON Yes, so that there is no argument that there is a way forward, so these groups feel that there is someone they can go to and generate a discussion so that they can feel they have got their point across to editors of extremely popular and influential newspapers?
A. Yes. I mean, I think that does already happen with the PCC, actually, because they'll often bring parties together LORD JUSTICE LEVESON They won't accept complaints. They may do now, but they historically wouldn't accept complaints from groups. It had to be the person who was complaining, and obviously, for example and I'm not saying you could mount a complaint about the Page 3 idea, but the Page 3 girl won't complain because she's entirely collusive in the exercise.
A. Yes. LORD JUSTICE LEVESON But others might be concerned, and there is a debate to be had there. I'm not suggesting that it's in any sense necessarily different from what you can do informally, but it may be more appropriate. I'm asking for your view on this, that there is a mechanism for this that is rather more formal, that those who don't feel that they get perhaps the attention that they otherwise feel they deserve can have a mechanism to voice these concerns.
A. Yes, I think it's worth exploring, and as I say, it's certainly something that we've been doing informally anyway. MR JAY The other one in this submission I would like you to look at, because it's not quite a year old, is page 14. On our numbering, it is 58523. The Sun, 25 February 2011. First of all, "Tran or woman?"
A. Oh sorry, yes.
Q. Do you have any comment on the use of the word "tran", Mr Mohan?
A. I don't think this is our greatest moment, to be honest. I think it's actually a valid feature, but some of the language in it is not ideal and it's something that I possibly wouldn't use now. But you have to to put it into context, that main image, I believe, is actually a transsexual who was the star of a TV series that was basically based around deceiving a number of male contestants into thinking that he that she was a that she hadn't been born a man. So there are questions to be asked perhaps in the TV world, as well.
Q. Why is that a deception, Mr Mohan?
A. All I'm saying the TV series I don't know if you're familiar with was called "There's something about Miriam", and it involved a transsexual who was placed in a house, who was basically put in a house with a number of male contestants, some of whom actually did actually how shall I put it?
Q. I think we get the drift, Mr Mohan?
A. did kind of team up with her, and I think that a number of those male contestants did actually take legal action against the TV company as a result.
Q. On the basis of some sort of deception?
A. Yes.
Q. Is that the gist of it? If we just have a look at what was said here, arguably it's extremely offensive: "This bevy of beauties are all blessed with good looks, style and figures to die for. Well, most of them, but believe it or not, some of these lovely ladies are actually laddies". Is that acceptable or unacceptable?
A. It's not our finest moment, I admit, but I would hope you will see some of the examples I've given of recent times and that would be evidence that we have moved forwards.
Q. Over the last eleven and a half months or a year?
A. Yes.
Q. Okay. We have the Page 3 example, Mr Mohan, you have the examples which Object refer to, and I've taken you to, and we have the Trans Media Watch example. I'm not saying they fall on a spectrum. Do you see those examples as being, in effect, the same or do you see differences between them? If so, what are the differences?
A. Well, I think Page 3 is a matter of taste. Yeah, obviously I think with someone with transgender issues, we've crossed line in terms of the code, and as you know, there was a PCC complaint upheld against us by which was taken by a transgender group, which we talked about last time. What I would say is that you have to look at this in context. I mean, since I last appeared at the Inquiry, we've probably published more than 8,000 articles in the paper. We publish more than 100,000 a year. I've probably been editor overseeing over 250,000 articles a year. These do represent quite a small percentage.
Q. The sort of material that Object have placed before the Inquiry, which is only looking at a one-week period, 14 to 20 November 2011, are you saying that that was not representative of the sort of pieces which one sees in the Sun every day, frankly?
A. Well, a number of them I don't believe are in bad taste. There was one you didn't refer to, which has a photo of three female jockeys and in the submission it says that we would never picture male sports stars in that way, and I disagree with that, because if you look at you know, you can barely walk down the street without seeing a billboard of David Beckham in his underwear, and similarly Cristiano Ronaldo has posed in his underwear and we've carried those photographs also, so I do disagree with a number of those submission.
Q. Yes, but I was whether I was making an evaluation or not, it's not for me to say, but I was careful to take you to some of them and not all of them, Mr Mohan. Can I move off that issue to another one. One piece which has been drawn to our attention, the "Al Qaeda Corrie threat", which is items 22 and 23 in this bundle. This surrounds fears surrounding the filming of Coronation Street that Al Qaeda was targeting them. There was no basis for this story at all, was there, Mr Mohan?
A. I believe we were contacted by a source which had details about a live Coronation Street show which was where guests and stars were being subject to a full body search, and the information that we received was that this was related to a fear that of an Al Qaeda threat. There was a quote from a police spokesman who said this is a public high profile event. The risk is consistent with the UK terror threat, which is currently severe. ITV have taken on a private security firm and our officers will assist them. Clearly our source was correct on a lot of matters, but not on the Al Qaeda element, but I would say that we corrected that very, very quickly as a result. Again, we do make mistakes. We publish over 100,000 articles a year. When those mistakes are made, I attempt to correct then as quickly as possible and learn from them.
Q. Under tab 24 there's a quote from the Greater Manchester police. They made it clear that: "We've not been made aware of any threat from Al Qaeda or other proscribed organisation. Quite simply, Grenada approached the Greater Manchester police to inform us they're employing a private security firm to help ensure that tonight's programme went ahead without outside interference. As part of their operation they asked for police assistance and we agreed to deploy a very small number of officers." So what you were doing in this headline was sensationalising an entirely mundane issue for maximum effect, weren't you?
A. I don't think it's a mundane issue that the cast of Coronation Street were subject to a full body search. I think that's highly unusual. But yes, the Al-Qaeda element of it was wrong and we corrected the story pretty swiftly.
Q. May I ask you finally, please I'm not going to cover every single matter, although there are two other matters actually. The first relates to the Gordon Brown cystic fibrosis story, if I can put it in those terms. The original story was published in 2006 when you weren't editor. The matter arose again, I think, last year when your position was or your paper's position was that the publication of that story was in the public interest because a member of the public had provided you with the story rather than through any unlawful means. Is that a fair summary of the position?
A. Can you repeat that?
Q. Yes.
A. Because I think there's another element to it.
Q. Right. The original story was in 2006; is that correct?
A. Yes.
Q. When you weren't editor. The matter blew up again last year, and the Sun published an article which said that a member of the public had provided the information relating to the child and that the Sun was denying that the article or rather, the underlying evidence had been obtained unlawfully. Is that correct?
A. Yes, but it was also addressing the fact that I'd researched the background to the story and there are probably other witnesses who you might be seeing at a later date who might be able to help you further on this, but my information was that consent had been given to run this story.
Q. Yes, well, that, I think, is a matter which is hotly disputed, isn't it? If consent had been given for the story, obviously certain consequences would flow, but if consent had not been given for the story, what was the public interest in publishing it, Mr Mohan?
A. I don't think the story would have been published without consent. I wouldn't have published it without consent.
Q. So does it boil down to this: it's really an issue of fact, which is in dispute and may have to be resolved in due course, as to whether consent was given back in 2006? Have I correctly understood it?
A. Although one of the central allegations was obviously, as you've said, that the Sun had illegally obtained this information by hacking medical records, and the source, who I obviously don't want to attempt to identify and we were very careful to conceal that individual's identity he swore an affidavit saying that that's not how the information had been obtained.
Q. Yes. Let's assume that that's correct, namely that the information was not obtained illegally, it was obtained by lawful means via a source. You would not have published this story unless you were sure that consent had been given by the parents? Does that summarise your evidence?
A. Yes.
Q. Okay. Is it implicit in that that you would take the view that even if the information had been obtained entirely lawfully, it was intrusive and not in the public interest to publish the story without consent?
A. This specific story, I would not have run without consent.
Q. Your reasons being?
A. Well, it's obviously an extremely sensitive issue.
Q. Okay. LORD JUSTICE LEVESON It's a medical matter concerning a child, so the question becomes how robust your consent-gathering mechanism was.
A. (Nods head) LORD JUSTICE LEVESON That may be the issue. MR JAY Have you been able to investigate the circumstances in which consent was allegedly obtained, Mr Mohan?
A. I spoke to journalists who were involved in the original story, and they indicated to me that consent had been given. There is a quote in the original story from a Treasury spokesman, and I don't think that would have been provided if consent had not been given.
Q. That may be may not be something we can pursue further. We know and this is the last point, Mr Mohan. How far we can go with this point, we will see. We know that at least four journalists from the Sun were arrested under Operation Elveden on 28 January, which was eleven days ago. It was a Saturday. Were you aware of that operation before 28 January?
A. That the arrests were to take place the following day?
Q. Yes.
A. No, I wasn't.
Q. So when were you first made aware that these arrests had taken place or were going to take place?
A. When I was contacted and told that my office were trying to get hold of me on the Saturday morning.
Q. So is it your evidence that you had no advance notice of this?
A. I wasn't told that the arrests were going to take place on the Saturday, no, absolutely not.
Q. But were you aware that arrests were going to take place on a certain day, although the exact day was not known to you?
A. No. I think that I have to be extremely careful here, because obviously this is a live police investigation.
Q. So is it your clear evidence that the first time you were made aware of the arrests was after they had happened?
A. Yes. I actually was I actually spoke to my office, who informed me at I can't remember the time. I think it was about maybe 9.15 am. MR JAY Okay. I was asked to put that point to you and I have taken it as far as I think I can go and I've overrun by one minute. LORD JUSTICE LEVESON Thank you very much indeed. Mr Mohan, thank you very much indeed for returning and for dealing with these other matters. I'm sure you would agree that it's sensible that we get your input on issues that have been raised during the course of the Inquiry.
A. Yes. LORD JUSTICE LEVESON I thank everybody for their patience yet again. Tomorrow morning, 10 o'clock. Thank you. (5.31 pm) (The hearing adjourned until 10 o'clock the following day)


Gave statements at the hearings on 17 January 2012 (AM) and 07 February 2012 (PM) ; and submitted 6 pieces of evidence
Gave statements at the hearings on 09 January 2012 (PM) and 07 February 2012 (PM) ; and submitted 5 pieces of evidence
Gave a statement at the hearing on 07 February 2012 (PM) ; and submitted 1 pieces of evidence
Gave a statement at the hearing on 07 February 2012 (PM) ; and submitted 2 pieces of evidence


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