QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT
PERMISSION TO APPLY FOR JUDICIAL REVIEW
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE SWEENEY and
MRS JUSTICE SHARP
| THE QUEEN ON THE APPLICATION OF ASSOCIATED NEWSPAPERS LIMITED
|- and -
|THE RT HON LORD JUSTICE LEVESON
(AS CHAIRMAN OF THE LEVESON INQUIRY)
Robert Jay QC and Cathryn McGahey instructed for the Defendant
John Hendy QC and Lance Harris instructed for the National Union of Journalists
David Sherborne and Louise Jones instructed for the Core Participant Victims
Christina Michalos instructed for The Commissioner of Police for the Metropolis
Hearing date: 13 January 2012
Crown Copyright ©
Lord Justice Toulson:
The Leveson Inquiry
"1. To enquire into the culture, practices and ethics of the press including:
c. the extent to which the current policy and regulatory framework has failed including in relation to data protection; and
d. the extent to which there was a failure to act on previous warnings about media misconduct.
2. To make recommendations:
a. for a new more effective policy and regulatory regime which supports the integrity and freedom of the press, the plurality of the media, and its independence, including from Government, while encouraging the highest ethical and professional standards;
b. for how future concerns about press behaviour, media policy, regulation and cross-media ownership should be dealt with by all the relevant authorities, including Parliament, Government, the prosecuting authorities and the police."
Inquiries Act 2005
"1. Subject to any provision of this Act or of rules under section 41, the procedure and conduct of an inquiry are to be such as the chairman of the inquiry may direct.
3. In making any decision as to the procedure or conduct of an inquiry, the chairman must act with fairness and with regard also to the need to avoid any unnecessary cost (whether to public funds or to witnesses or others)."
"Subject to any restrictions imposed by a notice or order under section 19, the chairman must take such steps as he considers reasonable to secure that members of the public (including reporters) are able –
b. to obtain or to view a record of evidence and documents given, produced or provided to the inquiry or inquiry panel."
"considers to be conducive to the inquiry fulfilling its terms of reference or to be necessary in the public interest, having regard in particular to the matters mentioned in subsection (4)."
"1. The Inquiry has been approached by a number of individuals all of whom describe themselves as journalists working for a newspaper or newspapers either on a casual or full time basis and who wish to provide evidence to the Inquiry on the subject of the culture, practices and ethics of the press. Each has asked to provide this evidence anonymously and with such other protection that the newspaper or newspapers for which they work or have worked cannot identify them. It is clear that the picture which they wish to paint is not entirely consistent with the picture that editors and proprietors have painted of their papers and they fear for their employment if what they say can be attributed to them.
2. It goes without saying that the best evidence is that which emanates from an identified witness that can be tested by questions and, if appropriate, considered in the light of any contrary evidence. Evidence from a witness who is anonymous could not properly be tested because the chapter and verse necessary to exemplify the evidence might identify both the newspaper and, ultimately, the source. Although counsel to the Inquiry could probe, no contrary case would be advanced. As a result, the weight that could be attributed to such evidence would be substantially diminished. But that is not the same as saying that it has no weight, particularly if it is to be considered along side similar evidence (if such there be) from sources who are prepared to be identified and who do provide chapter and verse.
5. Before embarking upon an analysis of the submissions that I have received in relation to anonymous evidence, it is worth reiterating that the purpose of Part 1 of the Inquiry which, as far as the press is concerned, is to consider the culture, practices and ethics of the press as part of the general background and which also requires me to look at specific relationships (with the politicians and the police). The facts (or narrative) provide only the starting point for the thrust of Part 1 which is to determine whether the current policy and regulatory framework has failed and, if so, what recommendations to make…
6. Reverting to the general background, it is also important to put the evidence that I hear about culture and practices into context. It is obvious that specific illegal or clearly unethical conduct could, indeed, exemplify culture, practices and ethics either in a particular newsroom or more widely and it is an extremely important part of the picture. It is not, however, the only evidence that may be relevant to the background…
7. Further, although I must inevitably consider the specific in order to reach conclusions about the general, it is of critical importance that everyone understands the way in which I will approach Part I of the Inquiry. In the same way that it is not part of my function to rule upon whether or not the rights of any of those complaining about the conduct of the press have been infringed, I do not consider it my role, in this Part of the Inquiry, to make any findings of fact about the behaviour of any newspaper or editor in any individual case…The approach to evidence of witnesses who wish to remain anonymous, must, therefore, be considered in that context.
9. Mr Jonathan Caplan QC for Associated Newspapers Limited has provided helpful submissions reminding me of the importance of open justice and the role that the media has in giving effect to that principle through accurate reporting. He argues that s19 of the Inquiries Act 2005 provides for the circumstances in which the principle of public access to inquires can lead to privacy and, in the context of my duty pursuant to s17(3) to act fairly, submits that the conflict arises between the Article 8 rights of the anonymous witness on the one hand and those potentially subject to criticism on the other, along with the Article 10 rights of the press. I recognise the principle of open justice, but it is not the only consideration. Context is of critical importance and I am not proposing that the Inquiry should receive and be able to act upon evidence which is the subject of a restriction order so that neither the core participants nor the public know what the evidence is. I will only receive and act upon evidence which is given in public and which may be fully reported. What will be missing is the identity of the witness but that information will simply not be part of the evidence or form any part of my assessment of that evidence…
10. One of the consequences of allowing a journalist to give evidence anonymously may very well be that it would not be fair to allow the name of the title or titles about which the journalist speaks to be identified if only because fairness could then require the facility to challenge the evidence (as opposed to testing it which would be the responsibility of counsel to the Inquiry). Further, given that I do not wish to prejudice on-going police investigations and will not be seeking to make findings of fact against any current specific title or individual editors, I am presently minded to the view that the name of the title about which the evidence relates (and, obviously, the identity of any manager who is criticised) should also be anonymous, save only where the allegations are already the public domain. The only exception will relate to the News of the World…
11. I agree with Mr Caplan's further submission that in any application for anonymity must receive intense scrutiny…
12. Although I would encourage all those who can contribute to this Inquiry to do so on an open basis, I understand the concerns expressed by journalists who fear for their continued employment if they do not follow the line being taken by their employers…In the circumstances, given the broad remit of this Part of the Inquiry into culture, practices and ethics at a general, rather than a specific, level, subject to the controls which I have referred, I will be prepared to receive anonymous evidence. Anyone who provides it will have to provide sufficient detail to demonstrate that he or she is speaking with firsthand knowledge and must also recognise that the weight that can be attached to it will be significantly less than that from a witness who is identified.
14. A draft protocol will be circulated: short written submissions can be made by core participants before it is promulgated."
"It's vital that in an Inquiry reflecting on the problems and issues within our industry, that the concerns, the experiences and insights of ordinary working journalists are heard and I know you're very much alive to this. They are the workers at the sharp end who deal with the reality of life in a pressured, busy newsroom every single day…
The NUJ is currently making a good deal of effort to identify journalists to give evidence and to share their experiences with the Inquiry. However the stark reality is that in many workplaces there's a genuine climate of fear about speaking out. In order that it's not simply those who have retired or who have been made redundant and left the industry who feel able to make a contribution, we're working with the Inquiry team to ensure that journalists who wish to contribute to the Inquiry can give their testimony in confidence to afford them protection from retribution.
The fear is not necessarily just of immediate punishment but of finding that a few months after your Inquiry ends a journalist who has spoken out may find herself on a list of redundancies. We support your draft protocol on anonymity and will discuss specific measures in relation to particular witnesses with the Inquiry team.
Of course, predictably some of the newspaper owners are unhappy about this, but the reality is that putting your head above the parapet and speaking out publicly is simply not an option for many journalists who would fear losing their job or making themselves unemployable in the future. In our experience, that fear has been a significant factor inhibiting journalists from defending the principles of ethical journalism in the workplace, and in media organisations hostile to the concept of trade unions there's a particular problem."
"On the point of anonymous evidence, I think that is clearly a difficult one. The reason that Nick Davies and the New York Times and later Panorama and Dispatches, i.e. journalists, were able to get at this story in a way that the police and the PCC weren't was because they spoke to journalists off the record. So when the New York Times turned up in town we said to them, "if you find and speak to enough people on the News of the World, they will tell you the same thing that they told Nick Davies", which was that this stuff was going on, that it was known about, it was rife and it was ingrained in the paper.
The New York Times managed to get two journalists to speak on the record, and the third police inquiry immediately announced that they would interview these witnesses as suspects under caution, and of course that got nowhere.
So there was a contrast between the people who were trying to get public evidence and didn't get to the truth, and the people who took off the record evidence and did get to the truth.
[The Chairman: That makes an assumption, actually, but I take the point.]
I think it's inevitable, and I hear what the General Secretary of the NUJ said about the fear of people – I mean there are two factors that are going to be at the back of people's mind. One is the retribution factor, which Michelle Stanistreet talked about, which is you're going to be unemployable if you say bad things about the industry in front of this committee, and the other obviously is that if people were frank the police are going to come along and arrest them.
So those are two difficult factors which you're going to have to think about and I know you've given a lot of thought to already."
"7. The concern of ANL, and it is anticipated other C P [core participants] publishers, is that …any evidence concerning allegations of journalistic behaviour which is improper, unethical or even illegal should be given as openly and fully as possible in order that it can be challenged if necessary and also tested against the evidence already provided to the Inquiry by management and editors. Such evidence, and the Inquiry's impression of it, is clearly fundamental to any findings about the culture, ethics and practices of the press…Even if the weight to be attached to anonymous evidence is "significantly less" than that which is given to a witness who is identified (Ruling of 9th November paragraph 12), the fact remains that some weight may/will be given to it and that this is a very important area of the Inquiry. Some of those who approach the Inquiry might be journalists who are disaffected with a particular employer or senior editor or who even have a grudge to bear: or they could simply be honestly mistaken. If granted anonymity then their evidence cannot be tested. Such an approach will inevitably impact on the Inquiry's findings and recommendations. It will also be unfair, firstly, because the unspecified allegations will besmirch the press as a whole (or sections of it) and individual allegations will have been taken into account which cannot be counted.
8. This is not the kind of Inquiry in which any potential witness risks personal danger. The apprehension appears to be retribution in the workplace by damage to promotion prospects or even loss of present or future employment. There must, however, be objective support for such a fear and, even then, a careful examination of alternative options. …Anonymity is patently not the only solution "possible" as in the Bloody Sunday case."
"1. On 9 November 2011, I ruled that I would accept evidence provided anonymously. Such evidence can take three forms. First, it can involve individuals who have approached the Inquiry anxious to assist but only on condition that they remain anonymous. Secondly, it can relate to others who, specifically for the purposes of the Inquiry, are prepared to provide evidence to third parties (such as the NUJ) who will then make a statement incorporating the evidence in the form of hearsay but without attributing it save only for validating the credentials of the witness as a journalist. Third, it may come from witnesses such as Mr Nick Davies. This last mentioned material has not specifically been prepared for the Inquiry but, in his case, it is recounted in his book Flat Earth News, parts of which he has exhibited to his statement. A draft protocol covering the first of these forms of evidence was circulated to core participants and, over the ensuing two weeks, a number of submissions have been received about it. I am grateful for them all.
2. A number of submissions seek to raise issues of principle and invite me to reconsider my ruling of 9 November; I am not prepared to do so. The underlying circumstances arising in this case are different from those in cases such as R v Lord Saville of Newdigate Ex parte A  1 WLR 1855, Bennett v A and others  EWCA Civ 1439 and the more recent Re Officer L  1 WLR 2135. Those involved in these inquires knew the names of the witnesses who would give direct evidence that might impact specifically on them. In this case, nobody would know the identity of the anonymous witnesses (or indeed the identity of those who were sources for the NUJ or Mr Davies)…and, as I have recognised, limited or very limited weight could be attached to such evidence as a result."
"5. It is, of course, open to ANL (or any other newspaper) to publish this undertaking to their staff and I am happy that they should but, with great respect, it seems to me to miss the point. First, the position of ANL is entirely to deny that any illegal or unethical practices are condoned at their titles. For the converse to be asserted as accurate by a journalist, it might be suggested that such a claim either involved gross misconduct or itself constituted gross misconduct. Secondly, and more important, the concern expressed by journalists (and I make it clear that I have absolutely no idea whether any journalist who has approached the Inquiry is employed by ANL and I make no suggestion to that effect) is not limited to dismissal or disciplinary proceedings but understandably extends to career prospects generally in what is, after all, a very difficult economic environment."
"6. As I have repeatedly made clear, the press performs a vital role in our society and the overwhelming majority of the work carried out by journalists is undertaken in accordance with the highest ethical standards and entirely in the public interest. The Inquiry, however, must be seen to be doing all that it can to hear the other side of the story and to ensure that it is not covered up. I fully understand the reputational concerns that have been expressed by ANL and others and I am conscious of the need to ensure, to such extent as is possible, that the investigations of customs, practices and ethics is general. …"
"15. I add one footnote to this ruling. Mr Caplan, on behalf of ANL, was anxious to see the protocol in its final form before deciding whether to challenge my ruling of 9 November and was conscious that the time for doing so expired on 23 November. Over the last two weeks, I have twice been prepared to provide ex tempore judgment on the arguments that had been advanced; on each occasion, a further submission from a different core participant was then received which I had to consider…As for this protocol, the final version is attached to this ruling."
The effect of the ruling
"The Inquiry shall admit and may rely in making its findings and recommendations upon evidence from witnesses who are anonymised (that is, whose identities are concealed not only from the public but also from Core Participants) and the admission and reliance on such evidence shall be considered fair and lawful provided that the following three conditions are satisfied:
(a) the evidence is direct evidence of unethical or unlawful conduct on the part of one or more newspapers or goes to some other important issue in the Inquiry
(b) there are redacted from the evidence all details which could reveal the identity of the newspaper title or group or individual to which it relates
(c) there is evidence before the Inquiry – even if not disclosed to those affected – which suggests an understandable, that is not fanciful, risk that the witness might, if identified, be subject to detriment in relation to their career."
Grounds of challenge
1. That allowing employees or former employees of press organisations to give evidence against those organisations anonymously would be unfair and so would contravene the principles of natural justice;
2. that the decision complained of fails to give effect to the principle of open justice;
3. that the decision complained of infringes the rights of the claimant and of others under article 10;
4. that the decision complained of fails to identify a public interest sufficient to justify a restriction order under section 19 of the Act, and fails adequately to balance any alleged public or private interest favouring anonymity against the countervailing public interest in open justice and free expression.
The alleged unfairness
1. Was there a credible basis for thinking that there were witnesses who had relevant evidence to give but who would not do so unless they had a prospect of anonymity because of real fear of career blight?
2. If so, was it likely to be better for the purposes of the Inquiry, i.e. in the public interest, to admit such evidence (subject to relevance), with its obvious and unavoidable limitations, than not to have it?
3. If so, would its admission be likely to cause such prejudice to the claimant, and other newspaper organisations, that it would be unfair to admit it notwithstanding the detrimental effect from the viewpoint of the purposes of the Inquiry and from the viewpoint of other interested parties?
"The Chairman will only grant protective measures to an applicant whose evidence is exculpatory of any individual or company in exceptional circumstances and only after having invited representations on the matter from the core participants."
"Given the circumstances in which witnesses have sought anonymity, I consider the likelihood that statements prepared by such witnesses will indeed be exculpatory of any specific individual to be low but it is sufficient if I express myself mindful of the point and, in the interests of fairness, will approach a consideration of any material with that concern in mind".
Mr Justice Sweeney:
Mrs Justice Sharp: