Why Lord Justice Leveson should stand down

On Saturday, the Independent ran a story about Lord Justice Leveson, the senior judge appointed to chair the inquiry into phone hacking by the press.

It suggests that the judge attended two parties held by Matthew Freud, who is married to Elizabeth Murdoch, daughter of Rupert; one in July last year, and one in January this year. His attendance followed him meeting Mr Freud in his (the judge’s) role as Chairman of the Sentencing Council; for which Mr Freud had offered to undertake some free PR work. Apparently, the Lord Chief Justice, and the Prime Minister both knew of this link prior to the public announcement that Lord Justice Leveson had been appointed.

There is much law about judicial bias and impropriety. No-one, not least of all me, is suggesting that attendance at those parties, or dealing with Mr Freud, means automatically that the judge is, or could be, biased, and no-one is suggesting any impropriety.

However, this inquiry will be wide reaching. It concerns the relationships between politicians and the press, and will look at police corruption – and possibly, wider corruption. We do not yet know the full remit, as the full story is still emerging.

What is absolutely essential, is that the public has faith in the inquiry, and the findings it makes. It is difficult to see how the public could have that faith in light of the news of the links – this is all about appearances, and sadly, in this case, appearances can be deceptive, and are likely to damage public confidence in the inquiry. Conversely, it would be easy to see how the public could view the link, and how they could extrapolate that the inquiry is a whitewash – an example of the establishment taking care of itself.

What is sad is that Lord Justice Leveson is a bloody fine judge. While I appreciate that the Prime Minister’s Communications office is at least a man down, it is a great shame he didn’t take some PR advice of his own, and, in his announcement, make clear that there is a tenuous link, but that it is irrelevant and why. By staying silent, he has left the newspapers to break it as they see fit, allowed Ed Miliband to use the issue to gain political equity, and has therefore already aroused suspicions about the inquiry, and this fine judge.

There seems to me to be little option but for Lord Justice Leveson to stand down. Not because the law says so (the law, in fact, says this link is too tenuous to be of importance), but because one of the biggest inquiries this country has seen has to be whiter than white, and currently, it is already looking a little too grey to the people that matter – the public.

 

I heard the news today, oh boy!

Back in the 19th Century, Alexis de Tocqueville suggested that “in every democracy, the people get the government they deserve”. I’m quite sure he was, and is, right. I wonder though, whether we also get the press we deserve.

Around 16.30 Tuesday, the Guardian broke the story that someone, on behalf of the News of the World, allegedly hacked into Milly Dowler’s mobile phone shortly after her disappearance. Not only that, but that a person or persons unknown, deleted messages in the full mail box to ensure that further messages were left.

I say ‘broke’, but the new information was that messages had been deleted. That Milly Dowler’s voicemails had been listened to has been out there for some time. Hugh Grant taped a discussion he had with Paul McMullan, a former News of the World reporter. Writing in the New Statesman on 12th April, Grant included the transcript of the recording:

Me Ah . . . I think that was one of the questions asked last week at one of the parliamentary committees. They asked Yates [John Yates, acting deputy commissioner of the Metropolitan Police] if it was true that he thought that theNoW had been hacking the phones of friends and family of those girls who were murdered . . . the Soham murder and the Milly girl [Milly Dowler].
Him Yeah. Yeah. It’s more than likely. Yeah . . . It was quite routine. Yeah – friends and family is something that’s not as easy to justify as the other things.

Over the course of yesterday various allegations came out, including that the parents of Holly Wells and Jessica Chapman have been contacted by Scotland Yard in relation to their phones having been hacked, and that victims of the 7/7 bombings may also have had their privacy breeched.

These are the latest allegations in a long running tale that has already seen two people convicted and jailed in relation to phone hacking*, and has led to a great deal of rhetoric. David Cameron says that if true, this is a ‘truly dreadful act’. Ed Miliband suggests that Rebekah Brooks, the then Editor of the News of the World, should ‘consider her position’. Alistair Campbell suggests these actions demonstrate the media’s ‘capability of absolute amorality’.

They are not alone in condemning the News of the World, the wider News Corporation (the owners) and the people employed there at the time, including Rebekah Brooks and Andy Coulson.

Some are calling for new law. Some are calling for advertisers to now boycott the News of the World, some are calling for heads on platters, and others are just expressing rage. Some, including the former Deputy Prime Minister, are suggesting that this story is indicative of why Rupert Murdoch shouldn’t own the part of BSkyB which isn’t currently in his control, and Ed Miliband is calling for a public inquiry. Later today there will be an emergency debate in the Commons on the issue.

What I am interested in is why parts of this phone hacking story are still emerging 9 years after the event. Indeed, it may go further back than that, given that the Guardian also reported yesterday that Colin Stagg, the man acquitted of the murder of Rachel Nickell, has been told by police that his phone would appear to have been hacked in 2000.

The story first hit the press in 2005, when the News of the World published an article about an injury sustained by Prince William. The details suggested to Royal aides that their phones had been hacked, they complained to the police. Ultimately charges were laid against Clive Goodman, the then Royal Editor and Glenn Mulcaire, a private investigator employed by the News of the World. Both pleaded guilty in January 2007, and received custodial sentences of 4 and 6 months respectively. The then Editor, Andy Coulson, took responsibility for the actions of his staff and resigned – on the day of the convictions, not before.

The House of Commons Select Committee on Culture, Media and Sport investigated the issue, the 2007 report stating

…Witnesses representing the press maintained that such practices were not, however, widespread, and that one bad apple did not mean that the whole barrel was rotten…

The Press Complaints Commission also investigated. In its 2007 report, the PCC said:

The Commission condemns breaches of… any law…when there are no grounds in the public interest for committing them.  However, it has said before that it does not consider that the case for stronger penalties has been made out.  Jailing – or threatening to jail – journalists for gathering information in the course of their professional duties is not a step to be taken lightly, and would send out a worrying message about the status of press freedom in the United Kingdom.

All went relatively quiet, until the Guardian ran a story in July 2009 ran a story suggesting that the News of the World had hacked up to 3,000 phones.

The PCC criticised the Guardian for running that story in their 2009 report. The Select Committee again took evidence. Rebekah Wade, as she was then, wrote to the Committee claiming that:

The Guardian coverage, we believe, has substantially and likely deliberately misled the
British public. lt is rushing out high volumes of coverage and repeating allegations by such
sources as unnamed Met officers implying that "thousands" of individuals were the object of
illegal phone hacking, an assertion that is roundly contradicted by the Met
Commissioners statement yesterday.

The Select Committee was critical of the News of the World, saying its executives suffered from “collective amnesia” in giving evidence, but stated that it could not determine the extent of alleged phone message hacking. The 167 page 2010 report led to calls from the Liberal Democrats for a judicial inquiry.

According to the Guardian, John Whittingdale, the Chair of the Culture, Media and Sport Select Committee at the time said:

“I think there was a culture which existed at that time which regarded this as normal practice and didn’t seek to see the problem attached,” he said.

“The one thing we can take comfort from is that that has changed now. We have seen no evidence to suggest that it is still continuing and we were given very firm assurances that such practices would now be regarded as intolerable.”

Asked why he was so confident in light of doubts about some of the evidence MPs had received, Whittingdale added: “It was recognised that what went on was unacceptable and of course the editor of the time [Andy Coulson, now David Cameron's director of communications] took responsibility and resigned. It was recognised that this kind of practice cannot continue and things that have been tightened up.”

The PCC ran its own inquiry as to whether the News of the World misled it during its 2007 investigation. The 2009 report states:

…the PCC can only deal with the facts that are available rather than make assumptions.  The PCC has seen no new evidence to suggest that the practice of phone message tapping was undertaken by others beyond Goodman and Mulcaire, or evidence that News of the World executives knew about Goodman and Mulcaire’s activities.  It follows that there is nothing to suggest that the PCC was materially misled during its 2007 inquiry.

The police also investigated, concluding in December 2010 that there was no evidence of criminal activity, supported by the CPS, who said there was no ‘admissible evidence’ that phones had been hacked.

However, this was a story that wasn’t going to die. In the background, various public figures were launching civil actions against the News of the World. These were not limited to celebs seeking compensation for breach of privacy – they included Brian Paddick, a former senior Met Officer, MP Chris Bryant and writer Brendan Montague, who collectively applied for a judicial review of the Metropolitan Police and its handling of the investigation.

The various actions, and the constant drip of further allegations in the press, led to Scotland Yard to announce a fresh investigation on 26 January – although according to the owners of the News of the World, that investigation arose due to them voluntarily handing over ‘fresh’ information. The investigation has so far included 3 arrests of News of the World staff.

However, the question remains: why, in mid 2011 following investigations (plural) by the police, the PCC and parliamentary Select Committees do we still not have the full picture of what went on in the News of the World?

The broadcaster Andrew Neil, who ironically was employed by Rupert Murdoch both at the Sunday Times and Sky, dissected the Chair of the Press Complaints Commission yesterday on Daily Politics. During her interview Baroness Buscombe said:

‘there is only so much we can do when people are lying to us’

In my opinion, that one sentence sums up how hopeless the PCC has been throughout this saga. Simple incompetence alone, drawn from an inability to rigorously test the evidence of newspapers would have been one thing, although that would have still led me to suggest that we need a regulator with more teeth.

However, in 2009, so staunch was the PCC in standing by their 2007 investigation, in particular that there was only 8 hacking victims, Baroness Buscombe accused Mark Lewis, the lawyer now representing the Dowler family, of being misleading in his evidence to the Select Committee in saying there were some 6,000 hacking victims. He launched a libel action, which was settled for an undisclosed sum, and led to an apology.

Not only that, but so keen were the PCC to stand by the 2007 report that it issued a report (the 2009 report) before the Select Committee had finished its work, leading the Committee to state:

We accept that in 2007 the PCC acted in good faith to follow up the implications of the convictions of Clive Goodman and Glenn Mulcaire. The Guardian’s fresh revelations in July 2009, however, provided good reason for the PCC to be more assertive in its enquiries, rather than accepting submissions from the News of the World one again at face value. This Committee has not done so and we find the conclusions in the PCC’s November report simplistic and surprising. It has certainly not fully, or forensically, considered all the evidence to this inquiry.

In 2010 following the report of the Select Committee (above, the 2010 report) the PCC focus was on defending itself, saying in response:

The Commission also wished to comment on the Select Committee’s remarks on phone message hacking and the PCC’s work in this area. It believes that your report mischaracterises what the PCC actually sought to do, which was not to duplicate the police investigation but to seek to ensure a change in practice at the News of the World, as well as to confirm best practice within the industry as a whole.

The Prime Minister has today said there will be a public inquiry into the affair, the remit of which has not yet been disclosed. Close to the top of that remit must, surely, be an inquiry into how the regulator failed to properly investigate the issue.

However, it was not only the PCC who was involved in this. The Information Commission was too, in respect of breaches of the Data Protection Act. Nick Davies, the Guardian reporter who has been at the centre of pursuing this story for several years now, gave astounding evidence to the Select Committee of the Information Commissioners’ stance:

They prosecuted Steve Whittamore, the private investigator, and three of his colleagues who were involved in the network, gathering information, they came to Blackfriars Crown Court and pleaded guilty, and the judge in the case said, ‘Well,hang on a moment. Where are the news groups? Where are the journalists?’ and the answer to that question is that the Information Commission felt that, if they charged the newspaper groups, they would (a) hire very expensive QCs, which meant that the Information Commissioner’s office would have to do the same, and (b) they would have masses of preliminary hearings with all sorts of complex legal argument and the effect of that would have been to break the Information Commissioner’s office’s legal budget. They simply could not afford to take on Fleet Street, it was too expensive. It was not, as you might think, a political fear, ‘We’re not going to get into a fight with these powerful newspapers’; it was a budgetary thing.

That aside, when asked by the Select Committee to assist, it would appear that the Information Commissioner initially denied putting information in the public domain, then later accepting it had, and then stood in the way of the Select Committee by declining to hand over invoices, saying:

My concern is a practical one. The invoices fill a large cardboard box and there are four A4 ledgers that run to around 100 double sided pages each. I estimate that it would take a member of staff between one and two weeks to perform the redaction needed to remove any personally identifiable information. I also have doubts as to whether supplying redacted versions of all the ledgers and the invoices would serve any useful purpose.

deliberately not acknowledging that the information was actually also available on a spreadsheet. This led the Select Committee to state:

We have been surprised by the confusion and obfuscation in the Information Commissioner’s Office about the format of the information it holds, and to whom that information has been released. Given our interest in the ledgers, and the visit of our Chairman to the offices of the Information Commissioner to inspect them, we would have expected to be told that the information was available in an electronic format.

I would suggest therefore that there has to be an inquiry firstly into why the Information Commission did go down the line of obfuscation and confusion, but also whether it did refuse to take on the might of Fleet Street, and if so, why?

There also has to be an inquiry into the police investigation, which should include asking questions of the Director of Public Prosecutions, who, if the evidence of Assistant Commissioner Yates to the Select Committee in 2009 is correct, had a hand in the decision to not pursue prosecutions:

“Our job, as ever, is to follow the evidence and to make considered decisions based upon our experience which ensures limited resources are used both wisely and effectively and, supported by senior counsel, including the DPP, the collective belief is that there were then and there remain now insufficient grounds or evidence to arrest or interview anyone else and . . . no additional evidence has come to light since.”

The Met obviously cannot investigate itself, and any inquiry has to question why the investigations were so poor; whether (as has been alleged) officers were being paid for information by News of the World, and whether there is any nexus between the two.

Before all of that can take place there needs to be criminal investigations into the hacking offences themselves, and if the information about the deletion of messages from Milly Dowler’s phone is correct, an investigation about interference in a police inquiry.

My original pondering was do we get the press we deserve? Given that this story, largely due to the Guardian, is now in the public domain, I believe yes, we undoubtedly do. In our reaction to the criminal activities of one news desk we should not forget that we have a press we can be proud of, who keep a check on the government of the day, any day, when one considers, for example, the Spycatcher affair and more recently, the MP’s expenses investigation. But once we have finished the public inquiries, and once the criminal trials against the proper perpetrators have ended, can we have the regulators we need, please.

*Intercepting phone messages can lead to a variety of charges – you can find the offences here.