0780

Chapter 5: some case studies 5391


1 Introduction 5392

2 The Dowlers 5423

3 Kate and Gerry McCann 5474

4 Christopher Jefferies 558

5 The Rt Hon Gordon Brown MP and his son’s illness 5646

6 Hugh Grant and ‘the mendacious smear’ 5727

7 Sebastian Bowles 5768

8 Recent events: Royal photographs 579

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Victims of crime

3.22 This category of individual includes those who have been harmed emotionally as well as suffering damage to their reputations, such as Drs Kate and Gerry McCann whose daughter Madeleine disappeared when the family was holidaying in Portugal in May 2007. The subsequent coverage of Madeleine’s disappearance included libellous and highly inaccurate articles in a number of newspapers, particularly in The Daily Express which made a number of allegations about the entirely unproven role of Drs Kate and Gerry McCann in the disappearance of their daughter.



3.24 These high-profile cases are far from isolated examples. The Inquiry also heard evidence from the parents of Diane Watson, who was murdered at school in Glasgow in 1991. In their evidence to the Inquiry, Mr and Mrs Watson not only raised the issue of unwarranted and indeed intrusive press attention but also, like the McCanns, pointed to the highly inaccurate and sensationalised reporting around their daughter’s death.

The Culture, Practices and Ethics of the Press: the Press and the Public

2.31 “We smash poison doc’s prison plot to kill ex and baby” (14 May and 16 June 2012). The Sun revealed how a doctor, already jailed for six years for drugging his mistress to try and force a miscarriage, was planning a revenge plot to kill her and her baby. In an undercover investigation, reporters from The Sun asked another convict secretly to film the doctor, Edward Erin, explaining his plan. The evidence was handed to the police and as a direct result Erin was jailed for an additional two years.

2.32 “Court in the act – clerk brags of £500 bribes to wipe records of dangerous drivers” (4 August 2011 and 19 November 2011). After a tip-off that a Magistrates Court clerk was offering to wipe clean convicted drivers’ licences, The Sun mounted an undercover operation to test the allegation. The Sun reporter sought and won approval from the editor and The Sun’s legal advisers to offer the clerk £500 and film the transaction, even though this was in contravention of the Bribery Act 2010, which came into force the previous month.14 The evidence was handed to police and the clerk, Munir Patel, became the first person to be convicted under the Bribery Act 2010; he was subsequently imprisoned for six years.

2.33 “Maddie fraudster nicked” (25 November 2009).
Kevin Halligen was a private detective employed by Drs Gerry and Kate McCann to help find their missing daughter. He swindled their charitable fund of £300,000 and went on the run after being accused of a £2 million fraud for which he was wanted in the US. The Sun tracked him down, he was arrested and he has now lost his appeal against extradition.

2.34 “We’re in jail, dude”, (6 February 2007). The Sun revealed the secret cockpit tape from a US jet which attacked a British convoy and killed a British soldier, Lance Corporal Matty Hull, in a friendly fire incident during the Iraq war. The Ministry of Defence had failed to produce the video at the inquest into Lance Corporal Hull’s death. But, as a result of The Sun’s investigation, the Coroner was able to deliver a verdict of unlawful killing.

Press F2. T The complaints

Failing to respect individual privacy and dignity

2.1 An overarching complaint which encompasses many of the individual cases set out below is that the press has failed always to treat individuals with common decency, and has failed always to respect individual privacy. This encompasses many of the unethical techniques complained of, including phone hacking, surveillance, blagging and harassment. It is also exemplified by complaints relating to the publication of private and/or sensitive material without any public interest justification, and the intrusion into grief or shock. Three of the ‘case studies’ examined below7 are prime examples of this tendency: the way in which parts of the press treated the Dowlers, the McCanns, and Christopher Jefferies indicates a press indifferent to individual privacy and casual in its approach to truth, even when the stories were potentially extremely damaging for the individuals involved.

2.2 Further evidence relevant to this complaint included Sienna Miller’s complaints of harassment, and the intrusion into the private grief of Anne Diamond and Baroness Hollins. Further evidence suggesting that parts of the press have failed to respect individual dignity and privacy were the examples seen by the Inquiry of the access and publication of sensitive personal information, including medical information, without any or any adequate consideration of the rights of, and effects on, the person in question and his or her family. Examples included the publication of confidential medical information relating to one of Gordon Brown MP’s children in 2006, and the publication of extracts of the Kate McCann diaries in the NoTW in 2008: these are both the subject of detailed analysis below.
 

Unlawful or unethical treatment of individuals Harassment

2.21 Ms Marshall’s memoirs (which she sought to dilute in her evidence by talking about the use of ‘top-spin’) record a pattern of behaviour which is also described by a number of witnesses. Ms Miller, Sheryl Gascoigne and the McCanns gave consistent evidence of high-speed car chases by journalists and press photographers. Ms Gascoigne explained how, following her marriage to the footballer Paul Gascoigne, she was subjected to intense press scrutiny that sought to depict her as a money grabber and the cause of her husband’s issues with addiction and mental illness. This scrutiny went beyond coverage of her public appearances and extended to the sustained harassment of her in and around her home. At times it took extraordinary forms. One journalist followed Ms Gascoigne and her children from their home in Hertfordshire to the Bluewater shopping centre in Kent.26

2.22 In very different contexts, Christopher Jefferies and Kate and Gerry McCann described their experiences of sustained scrutiny and intrusion following the well-publicised events which attracted press interest. All three witnesses described how journalists and press photographers camped outside their homes, sometimes for days on end, making it impossible for them to go about their daily lives or indeed live comfortably or securely in the family home.27

2.23 In his witness statement Dr McCann told the Inquiry how at times his car was mobbed by journalists and photographers as he, or his wife, tried to drive with their family from their home. He recalled that journalists and press photographers banged on the car windows and shouted at the family even though their young children were not only visible but were also clearly distressed by such behaviour.28

Inaccuracy and inaccessibility

2.27 Many witnesses have complained of stories about them being inaccurate or misleading (see, for the most egregious examples, the evidence of Christopher Jefferies and the McCanns); some have gone further to allege that evidence and quotations are deliberately fabricated in order to substantiate a story, add colour to it, or to pursue a particular line. Furthermore, organisations such as Full Fact have drawn to the Inquiry’s attention many examples of allegedly knowingly inaccurate or misleading reporting in areas such as asylum, immigration and climate change.

2.46 Article 8 of the ECHR does not place an obligation on newspapers to pre-notify the subjects of intended stories as a matter of course54 and it is easily understood why some stories cannot be the subject of pre-notification. However, concerns have been expressed during the course of the Inquiry that, in some of those cases where pre-notification did not occur, culture and practices have existed within a section of the press of deliberate decisions not to take reasonable steps to pre-notify the subjects of news articles in advance, without there being a good reason not to do so. The principal aim of this was to unfairly deny the subject of the article the possibility of verifying or challenging it, or to ensure that the story is not lost to a competitor. A number of journalists and editors testified to a reluctance to pre-notify in certain situations; the evidence relating to Max Mosley’s privacy action and the publication of the Kate McCann diaries provides a powerful insight into the key drivers of press conduct in this type of situation. Each of these cases is considered as an individual example below,55 but the absence of pre-notification is not examined as a problem to be addressed generally. All the evidence suggested that a failure to pre-notify was the very rare exception rather than a recurring practice or culture within the press.

Consequences of inaccurate reporting

3.11 It goes without saying that reporting of this nature is particularly distressing to the family and friends of the deceased.

3.12 The cases of the McCanns and Christopher Jefferies are especially egregious examples of defamatory and sensationalised reporting causing, in their different ways, personal anguish and distress. These examples are treated in more detail below.

Pressures on journalists

2.23 Mr Edmondson described an environment where anyone in the newsroom had to comply with an instruction from the editor, even when the editor’s instruction might be morally or ethically questionable. He said that an instruction from Mr Myler (denied by Mr Myler) that he misled Clarence Mitchell, the PR assistant to the McCann family, about the NoTW’s position in relation to Dr Kate McCann’s diaries was a particularly egregious example of an instruction effectively to deceive someone, but that there had been other occasions.

Privacy

3.8 Mr Sanderson said that in every story he would consider privacy, the public interest and whether he was adhering to the Editors’ Code. However, he was unable to point to any consideration of breach of privacy in relation to the acquisition of the diaries of Dr McCann, appearing to feel that the matter would be satisfactorily covered by obtaining the consent of the McCanns to any proposed publication.88
 

3.17 A similar example of a casual and cavalier approach to privacy is offered by the handling of the diaries of Dr Kate McCann by the NoTW, discussed in detail below.101 In short, the NoTW had come into possession of the personal diaries of Dr McCann, via a Portuguese journalist who had, himself, acquired them from the Portuguese police. It chose to publish highly personal excerpts from the diaries without the consent of Dr McCann.

3.18 Paragraph 3.8 above explains that Mr Sanderson, the NoTW journalist who acquired the diaries, confirmed to the Inquiry that he applied no consideration of privacy when acquiring them. His understanding was that the diaries would not be published without the consent of the McCanns; he appeared not to realise that the acquisition of the diaries alone involved a substantial breach of Dr McCann’s privacy, even without the intention to publish.

3.19 The Inquiry heard two conflicting accounts of the approach taken by the NoTW to gaining the consent of the McCanns to publish. First, Mr Myler told the Inquiry that he had instructed Mr Edmondson to make it clear to the McCann’s PR assistant, Clarence Mitchell, that the NoTW had the whole diary and that they were planning to publish extracts of it. He asserted that Mr Edmondson led him to believe that this had been done.102 3.20 Mr Edmondson, by contrast, gave evidence that he had had express instructions from Mr Myler to do no such thing.103 Instead, he said he was instructed to have a conversation with Mr Mitchell that was ‘woolly’ and ‘ambiguous’. He was told not to reveal that the NoTW had the diaries in its possession, and not to reveal that they intended to publish extracts from the diaries, but to indicate that something would be published and to seek consent for the publication. This tactic of not giving full disclosure was to avoid the McCanns preventing publication by direct approach to Mr Myler, or by seeking an injunction.104 For the reasons I set out in greater detail below,105 I accept Mr Edmondson’s account.

3.21 It seems clear from these examples that, despite some evidence to the contrary, the NoTW was not particularly exercised by issues of privacy, particularly in the context of ‘big’ stories. While Mr Crone was able to advise on what approach a court might take, such advice was used at least as much to determine strategy for evading legal intervention such as injunctions as to inform a principled decision on how to proceed. This is another manifestation of what may be identified as a general theme running through the culture, practices and ethics of the press, not merely prevalent at the NoTW but also elsewhere: the focus was only on legal risk, not on ethical risk (and, one might add, the dictates of ethical journalism) and the rights of the individual.

Chapter 5 Some Case Studies 1. Introduction

1.2 In this Chapter, before proceeding to examine the evidence as a whole,1 I examine in detail a number of individual examples of press reporting in recent years. Some of those examples will be well known to many reading this report and include the reporting of the disappearance of Amanda (Milly) Dowler, the disappearance of Madeleine McCann, the arrest of Christopher Jefferies on suspicion of murder and the publication of details of the medical condition of the former Prime Minister, the Rt Hon Gordon Brown’s son. The first three of those, at least, were chosen because they exemplified what might be described as the most egregious cases of unethical journalistic conduct.

1.8 The Inquiry also heard at length from Dr Kate and Dr Gerry McCann, who, following the disappearance of their daughter Madeleine in Portugal in May 2007, were the victims of what may only be fairly described as serial defamations in a number of newspapers between September 2007 and January 2008. The McCanns were initially the subject of balanced and sensitive press reporting in the British press: not merely did the story attract the open-hearted sympathy of the public, owing to the way that it resonated on a number of obvious levels, but the parents took a strategic decision at a very early stage to engage with the press in order to avail the search for their daughter.

1.9 By the summer of 2007, however, what had begun as a sympathetic approach by the press to an ongoing personal tragedy had altered; this change had been prompted by ‘leaks’ from the Portuguese police to the local and British media representing their version or speculation of what might have happened to Madeleine. Some, but certainly by no means all, sections of the press in the UK decided to run with stories which alleged that the McCanns were in some way responsible for the disappearance of their daughter. One title prided itself in the fact that it was apparently fair minded because on one day it would print a hostile story while the next it would provide a more sympathetic portrayal. The defamatory reporting continued for approximately four months, the principal perpetrator asserting that the public appetite for the story was undiminished. Ultimately, it took the threat and then the reality of libel action to bring this spate of reporting to an end, and the McCanns received substantial damages and a front page apology in settlement of their claims.

1.10 It was inevitable and entirely in the public interest that there be full reporting of stories about both Milly Dowler and Madeleine McCann. Like the Dowlers, however, the McCanns were also treated as if they were a commodity in which the public, and by extension the press, had an interest or stake that effectively trumped their individual rights to privacy, dignity or basic respect. The press believed that the public’s legitimate interest in the story was insatiable, and that belief required it to sustain that interest by following every possible development or turn, however implausible or apparently defamatory. Also like the Dowlers, the McCanns were the victims of grossly intrusive reporting, prying photographers and an ongoing ‘media scrum’ which paid little or no regard to their personal space, their own personal distress and, in particular, the interests of Madeleine’s younger siblings.

1.11 There are two other aspects of the McCann ‘case study’ which merits its inclusion as such. First, the PCC did nothing until it was too late, and the reasons for this inactivity need to be explored. Secondly, the NoTW published highly personal extracts from Dr Kate McCann’s diary in September 2008 following a telephone conversation between its news editor and the McCanns’ spokesman, Clarence Mitchell, on 12 September. The Inquiry was provided with a transcript of that conversation at an early stage, but without knowing the full background it was difficult to discern the true purpose of the conversation and what was understood or agreed by or between the participants to it. However, when he came to give evidence, the news editor accepted that Mr Mitchell had been deliberately misled so that it would appear that he had given his consent to the publication of the extracts on behalf of Dr McCann whereas in truth he had not.

1.13 The next case study which will be examined concerns the story published in The Sun in 2006 regarding the illness of one of Mr Brown’s children. This story is of interest for a number of connected reasons. First, even without disclosing its source so as to permit his or her identification, The Sun has refused to explain how the story was sourced. The second reason concerns the absence of any public interest justification for publishing a story about the health (ie the private life) of a child; and the third is the circumstances in which the paper sought to obtain the consent of Mr and Mrs Brown to its publication. The evidence in this last respect has clear resonances with the evidence of Anne Diamond, the broadcast journalist and presenter, relating to the death of her infant son and her enforced association with The Sun’s cot death charitable appeal, and the evidence relating to the obtaining of Dr Kate McCann’s consent, through a conversation with her agent, to the publication of extracts from her personal diary.

1.14 There is much that could be discussed about the evidence that actor Hugh Grant provided and he would be the first to say that press treatment of those who have achieved what is called ‘celebrity status’ should only be considered behind the complaints of people like the Dowlers, the McCanns and Mr Jefferies. He is included as a case study because of a detail in his evidence and the reaction that it provoked. He gave evidence to the Inquiry as to his belief that a story in The Mail on Sunday about an alleged flirtation with a ‘plummy-voiced executive’ had been obtained by voicemail hacking. Mr Grant accepted that he had no hard evidence to support this belief; it was an exercise in speculation (although it might otherwise be described as inference). The day after he had appeared before the Inquiry, on 22

 November 2011, the Daily Mail published a piece which accused Mr Grant of making a ‘mendacious smear’ against the Mail titles. It is of value because it is a good example of the strategy of ‘defensive attack’ (although the Mail titles argue that the story was entirely justified) which itself represents a strand within the culture of the press. It is also of interest since the relevant evidence grew out of the Inquiry’s proceedings themselves.

3. Kate and Gerry McCann

In his submissions opening Module One of the Inquiry, David Sherborne, Counsel for the Core Participant Victims, described the press treatment of the McCanns as a ‘national scandal’: not merely had they suffered the personal tragedy of the abduction of their daughter, they were subjected to a barrage of press reporting which could only be fairly characterised as a diatribe. Clearly, therefore, it is appropriate to take the experience of the McCanns as a ‘case study’ warranting further examination for the light it throws on the culture, practices and ethics of the press. Their case is also highly illuminating in the context of the action, or rather the inaction, of the PCC.

The McCanns’ personal perspective

3.2 Madeleine McCann was abducted from a holiday apartment in Praia da Luz, Portugal, on 3 May 2007, shortly before her fourth birthday. Her parents were dining with a number of friends at a tapas bar within the holiday complex and also within sight of the apartment where she was sleeping, together with her younger twin siblings.

As Dr Gerry McCann’s witness statement makes clear, much has already been written about the details concerning Madeleine’s disappearance, and no one reading this Report is likely to be unaware of the basic facts. These include the fact that the McCanns are still searching for their daughter. In terms of the chronology, however, it should be noted that on 7 September 2007 the McCanns were accorded the status of arguidos (ie persons of specific interest to the investigation, but not a synonym for an accused) by the Portuguese Policia Judicaria (PJ). This was somewhat of a watershed in terms of the nature and quality of press reporting.

3.3 Just as the Dowlers had articulated the need to engage with the press in order to gain their assistance and support, the McCanns explained that they had no option but to implement a proactive press strategy: they were in a foreign jurisdiction, and time was of the essence in this, as in all other, child abduction cases. Such were the pressures of press engagement that it was necessary at an early stage to enlist the full-time assistance of a press advisor, Clarence Mitchell; he had been seconded to the Foreign and Commonwealth Office as part of the media liaison at this town. Dr McCann stressed to the Inquiry that the initial experiences of dealing with the press were positive:

3.4 Unfortunately, these favourable impressions began to dissipate when the McCanns returned home from Portugal. Much has been said by other witnesses about press intrusion and the behaviour, in particular, of paparazzi; the experiences of the McCanns were no different. They had become a news item, a commodity, almost a piece of public property where the public’s right to know possessed few, if any, boundaries. As Dr McCann explained

3.5 In answer to the suggestion that the positive decision made by the McCanns to engage with the press in order to serve their own interests effectively meant that they had waived their rights to privacy and everything else, Dr McCann said this:‘‘

3.6 Dr McCann was not of course suggesting that the press was obliged to write about him only on his terms rather than on theirs. However, the point he was making was entirely valid; a decision to engage with the press does not make a private person public property for virtually all purposes, still less does it begin to justify defamatory reporting.

3.7 The protracted spate of defamatory reporting commenced in September 2007 and had to be endured by the McCanns over four torrid months ending in January 2008. It only stopped after the McCanns were driven to take legal action against the worst perpetrators. It is well known that British newspapers were relying on reports in Portuguese journals and other sources which were either associated with, close to, or directly part of the PJ. But, as the McCanns themselves explained, the British press often did not know the source; or did not know whether it was accurate, exaggerated or downright untruthful; or (as the McCanns believed) sometimes made up.

3.8 A number of titles were guilty of gross libels of the McCanns and of serious and total failure to apply anything approaching the standards to which each has said they aspire. For that reason, the nature of the errors perpetrated by certain sections of the press will be explored, but at this stage it is sufficient to make the observation that, aside from the gross inaccuracy of the reporting in issue, some of it was, to put it bluntly, outrageous. One particular piece in the Daily Star published on 26 November 2007 certainly justifies being so described and Dr McCann was moved to go yet further:

3.9 In January 2008, letters before action were sent to a number of newspapers. The first response came from Northern & Shell, on behalf of the Daily Express, on 7 February. According to Dr McCann, the Express rejected the complaint on the straightforward ground that the McCanns were arguidos, but the paper suggested that they do an interview with OK! magazine; this was an offer which was rightly (and without any exaggeration) characterised by Dr McCann as ‘rather breathtaking’.

3.10 It did not take very long, however, for Northern & Shell to modify their position and, on 19 March 2008, a statement was read out in open court in which liability was admitted. The settlement also involved the making of a substantial payment into the Madeleine fund and the printing of an apology on the front page of the Daily Express and the Daily Star. The apology correctly pointed out that ‘it is difficult to conceive of a more serious allegation’. It also correctly recognised that ‘there is no evidence whatsoever to suggest that Mr and Mrs McCann were responsible for the death of their daughter, they were involved in any cover up and there was no basis for Express Newspapers to allege otherwise’. Given this admission, it is difficult to understand why the defamatory articles ever saw the light of day in the first place.

3.11 It should also be mentioned that others involved at the periphery of the McCann tragedy were the subject of defamatory reporting which led to substantial libel settlements. Mr Robert Murat was wrongly accused of being involved in some way in the abduction and was traduced in the British press; and the friends of the McCanns who had dined with them on the evening of Madeleine’s abduction were falsely accused of being implicated in a cover up.

3.12 If ever there were an example of a story which ran totally out of control, this is one. The appetite for ‘news’ became insatiable, and once the original story had run its course the desire to find new leads and ‘angles’ began to take over, with their corollary tendencies of sensationalism and scandal. Not merely was the rigorous search for the truth the first principle to be sacrificed but also was any respect for the dignity, privacy and wellbeing of the McCanns.

3.13 Sections of the press have suggested that this was very much a ‘one off’ and scarcely illustrative of their culture, practices and ethics. But all the material evidenced below26 indicates that this is not the case: although the treatment of the McCanns may very well be one of the most egregious examples, the inquiry heard examples of similar practices from numerous witnesses. As paragraph 373 of the CMS Select Committee’s Second Report, dated 9 February 2010, makes clear:

The press perspective

3.14 The Inquiry heard from two of the Daily Express journalists involved in reporting the McCann story. No criticism is made or to be inferred of them, because it was not their decision to run with the story generally or to publish any specific or individual pieces. For present purposes it is necessary to draw attention only to a short extract from the witness statement of one of the journalists:

3.15 The witness elaborated on this in oral evidence, and stated that he was certain that there were conversations between the news desk and lawyers about this. He continued: ‘and that was the situation we were in and there was no way round it’.This reveals much about the culture, practices and ethics of the press. The journalist made it sound as if his newspaper was in the metaphorical cleft stick but, even on cursory analysis, this was not the case. There was no imperative to continue to report on the McCanns, still less to tell this particular story unless, of course, it is accepted that there was overwhelming pressure, both commercial and otherwise, to tell it. The news desk recognised that if the story were told on the basis of the unconfirmed reports coming out of Portugal, then ‘anyone who was unhappy’ would have had a close to cast-iron claim.

3.16 It is of interest that the journalist could not bring himself to mention the McCanns by name; they, after all, would be the prime candidates for being ‘unhappy’ about the story. By then, they had become almost depersonalised, a commodity. Further, the newspaper decided to publish in the face of the concerns they had identified, placing themselves at ‘the mercy of potential litigants’. Again, the McCanns are not mentioned by name and the newspaper is close to being placed in the role of victim. As the journalist put it, ‘they [the newspaper] simply are unable to defend themselves’. One might have thought that the more sensible response to this assessment, rather than bemoaning the apparent unfairness of being placed in an impossible position, would have been the prudent course of not publishing stories which not only could they not prove, but for which they had not a scintilla of evidence. Behind the scenes briefings by police officers, themselves under pressure and constrained by Portuguese law which were passed through third and fourth parties, could hardly be thought to constitute any, let alone a sound, basis for publishing such allegations as truth.

3.17 These issues were taken up with the editor of the Daily Express at the relevant time, Peter Hill. He frankly accepted that running the McCann story was very high risk, given all the factors identified by his journalists. When asked to explain why he chose to publish in those circumstances, Mr Hill explained:

3.18 But ‘covering it as best you could’ meant running a story in circumstances where there was a high chance that it was untrue and, in any event, was utterly unprovable. Mr Hill accepted the ‘very high risk’, and felt driven to publish anyway, placing him and his paper in ethical difficulties in the context of clause 1 of the Editors’ Code and legal difficulties with the law of defamation. His answer also betrays a curious form of logic: if, as was probable, the particular story was untrue, then it both could and should have been rejected. A different, truthful and, by definition, better story should have been written based on the research that the journalists could undertake that generated facts that could be proved. ‘Covering it as best you could’ did not mean throwing caution to the winds.

3.19 Mr Hill was also asked whether the interests of the McCanns were taken into account. He was adamant that they were:

3.20 Unfortunately, Mr Hill’s answer betrays a similar curious form of logic: the deeply sympathetic stories on this approach should be regarded as being capable of being weighed in the balance in some way against the stories ‘which were not’, these being the stories which, as was put to Mr Hill, accused the McCanns of killing their child. His answer to that proposition was that the stories he ran were only repeating the accusations of the Portuguese police.

3.21 The self same logic underpinned the evidence of the proprietor of Express Newspapers, Richard Desmond, when he was asked about this topic. Mr Desmond said this:

3.22 Notwithstanding the language deployed, this was an attempt by Mr Desmond to expiate, or at the very least to mitigate, his company’s conduct, which simply fails to recognise that it is completely misconceived. It is additionally unfortunate that further questions revealed that Mr Desmond’s apology was not entirely unqualified:

3.23 This was another revealing answer, since by it Mr Desmond revealed what I consider to be a very disturbing philosophical approach to the concepts of free speech and a free press. For him, at the end of the day, the issue was all about free speech and the threat of excessive regulation. On this approach, press standards and ethics were close to being irrelevant. Mr Desmond had made that clear towards the start of his evidence, when he disputed that ethical lines could be drawn.Finally, it should be noted in this context that Mr Desmond was inclined to blame the PCC for failing to give his paper guidance rather than accept that his editor should accept at least some responsibility.

3.24 The PCC should have done more, but Express Newspapers could not reasonably infer from the PCC’s inaction that their action was ethical. Mr Desmond, like his Finance Director Paul Ashford, also blamed the PCC for acting hypocritically by criticising Mr Hill after the event, particularly in circumstances where Express Newspapers had behaved no differently from anyone else.
There is merit in the argument that an even-handed regulator should have taken everyone to task and there is force in the point that criticism of the approach of the press generally could and should have gone wider, but this is not an allegation of hypocrisy: the PCC were not applauding the conduct of other titles while condemning the Express (which demonstrated the most egregious failings); they were simply using emotive language borne out of a degree of anger to condemn the Express and saying nothing about others.

3.25 On the other hand, the real point is that a regulator, acting in the interests of the public, while respecting free speech, should have taken much firmer action in relation to the way in which this story was reported, even though the titles affected would have found unpalatable the criticism that they should have faced. That the PCC did too little too late is not a complaint which it lies in Mr Desmond’s mouth to make.

3.26 One of Mr Hill’s journalists had said in evidence that his editor was ‘obsessed’ with the story. Mr Hill rejected that description of his state of mind, although in explaining his motives and reasons for persevering over so many months, his revealing answer was as follows:

3.27 In other words, Mr Hill’s ‘method of working’ tended to discern little or no difference between ‘Big Brother’ and the McCanns: this was all about similar commodities and what he believed his readers were interested in. The obvious potential link between what Express readers were apparently interested in and circulation figures was one which the Inquiry explored, but in the end it was not possible to reach any firm conclusions. Mr Hill testified that he believed that circulation went up as a result of the McCann stories and that this was a factor in his persisting with them. He himself viewed the circulation figures and came to that empirical conclusion. However, the Inquiry’s examination of the data did not disclose any clearly discernible patterns.

3.28 Overall the justifications advanced by Messrs Hill and Desmond for the frankly appalling treatment of the McCanns were, as has been clearly demonstrated, both self-serving and without foundation.

The PCC’s response

3.29 Two days after Madeleine’s disappearance, the PCC contacted the British Embassy in Lisbon and asked the consular service to inform the McCanns that the services of the PCC were  available to them. Dr Gerry McCann’s evidence was that he was unaware of this until 2009 when he gave evidence before the CMS Select Committee. He told that Committee that he did not recall receiving such a message but, had he done so, it would have been lost in all the other information the family was bombarded with at the time
 

3.30 Dr McCann accepted that the PCC had been extremely helpful in dealing with the unwanted intrusion into the privacy of the twins.The PCC intervened to contact editors and broadcasters reminding them of the Code and, thus, not to take photographs or similar images of the children; this practice stopped.The PCC was also helpful in removing photographers from outside the McCanns’ driveway, although this was only after “what we felt was a very long period”.

3.31 A meeting took place between Dr McCann and Sir Christopher Meyer, former PCC Chairman, on 13 July 2007. There is no dispute between them as to what was said. Sir Christopher’s evidence was that he explained to Dr McCann, at a time when there had only been one complaint to the PCC against a newspaper and that was not proceeded with, that he effectively had a choice: either he could complain to the PCC, or he could take legal action, but he could not pursue both courses simultaneously. When asked what the PCC did for the McCanns over the most distressing period, which was between September 2007 and January 2008, Sir Christopher said this:

3.32 This was a roundabout way of saying that the PCC did nothing. True, the PCC was on hand if the McCanns had not decided to litigate, but they should not have been presented with such a choice. Given the options which Sir Christopher had himself explained to Dr McCann, and given the scale of the defamatory treatment to which he and his wife had been subjected, this was a classic case of Hobson’s choice. Further, as Dr McCann himself pointed out, it was invidious that he and his wife were being asked to contemplate bringing a complaint against a body on which the editor of the Daily Express sat. A regulator of press standards, worthy of that name, would not have left the McCanns in such a predicament at the time of their maximum distress. Either the McCanns should not have been presented with mutually incompatible alternatives and given the option of pursuing both, or the PCC should have been ‘more royalist than the king’ (to quote Sir Christopher) and taken unilateral action.

3.33 Sir Christopher took the editor of the Daily Express to task for his conduct on the very day that the McCanns’ libel action was settled. This was too little, too late, and even after the facts had been conclusively established (by admission) the PCC took no formal action. As the CMS Select Committee correctly pointed out, and as will be discussed in more detail below, the PCC was empowered under its Articles of Association to launch an inquiry in the absence of a complaint. The McCann case ought to have been visualised as a prime candidate for such a course of action.

3.34 The Inquiry cannot improve on the conclusions of the CMS Select Committee in February 2010 when reviewing the McCann case:

The Kate McCann Diaries

3.35 Dr Kate McCann had kept a personal diary recording her innermost thoughts and feelings following the disappearance of her daughter. It was intensely private, and she did not share its contents even with her husband. The diary was seized by the PJ in August 2007 pursuant to its investigations, but the Portuguese court ordered its return to Dr McCann, as well as the destruction of all copies in its possession. The PJ had translated the diary into Portuguese and unfortunately one of the copies of the translated version found its way into the hands of a Portuguese journalist.

3.36 A former NoTW journalist told the Inquiry how a copy of the diary was acquired by the paper on payment of a substantial sum and then translated back into English. As Dr McCann pointed out in her evidence, the re-translated text did not completely match the wording of the actual diaries, but this is a minor point when set against the scale of the violation to her privacy which came to be perpetrated.

3.37 The journalist’s understanding was that the news editor, Ian Edmondson, would ‘confirm with the McCann press spokesperson that the diary was genuine’, and would obtain his consent to publish extracts from the diary. However, his written and oral evidence about these matters was somewhat vague, not because he was seeking to mislead the Inquiry in any way but for reasons which will soon become apparent.

3.38 One piece of evidence given by the journalist was particularly revealing:

’In other words, the predominant consideration was not concerns about the McCanns’ priva-cy but rather the newspaper’s own evaluation that this was a sympathetic story which placed them in a good light and was above all else true. This is exactly the same sort of reasoning process which the Inquiry has so often noted in its review of the critical material below.

3.39 Colin Myler, the editor of the NoTW at the time, was asked about these matters. He had had previous dealings with the McCanns and had, for example, berated Dr Gerry McCann for doing an interview with Hello! Magazine in preference to the NoTW. His version of events was that his news editor, Ian Edmondson, obtained consent to the publication of extracts from the diaries from Mr Mitchell:

3.40 Mr Edmondson’s account differed from Mr Myler’s. He explained that he tape-recorded his telephone conversation with Mr Mitchell without the latter’s knowledge in the interests of ‘accuracy’, although he accepted that this entailed an element of misleading his interlocutor.Mr Edmondson was asked to state whether he made it clear to Mr Mitchell that it was the intention of the NoTW to publish extracts from the diary verbatim. It is worth setting out his answer in full:

3.41 This was devastating evidence. It would be remarkable if Mr Edmondson was seeking to mislead the Inquiry regarding Mr Mitchell being given a ‘woolly’ or an ‘ambiguous’ account of the newspaper’s intentions: it was a frank admission of unethical conduct and fits the transcript of the conversation. Mr Edmondson’s version of events was not available when Mr Myler testified some eight weeks previously, but it has since been put to him for comment. It is inherently more probable that Mr Edmondson would have been acting on instructions with regard to an issue of this nature rather than making the executive decision himself. In any event, the frankness and precision of his evidence on this issue, including his reference to Tom Crone and legal advice, renders it more likely than not61 that his account is correct.

3.42 Regardless of issues of individual responsibility, this case study is particularly illuminating for this reason. Read in isolation and out of context, it could be said that the transcript is somewhat ambiguous so that it could be deployed in support of a contention that, in some way, Mr Mitchell consented on behalf of the McCanns to the publication of extracts from the diaries. Thus, it was regarded by the paper as important to obtain written evidence which could be used if necessary to justify what happened. Read in the context of Mr Edmondson’s explanation, however, the position is crystal clear. It is equally clear that deliberate decisions were made within the NoTW to obtain this evidence by obfuscatory tactics and to deploy to their advantage the fact that a conversation of sorts had occurred should the need subsequently arise. In the result, there was a letter before action, and the matter was settled without the necessity of its ventilation in court.

3.43 But the impact on Dr Kate McCann in particular was traumatic. As Dr Gerry McCann explained in his witness statement, ‘Kate was distraught and morally raped.’

3.44 What the McCanns did not make explicit when giving their evidence, but was or ought to have been entirely obvious to any empathetic observer, is that the conduct of the press as highlighted in this section of the Report served only to magnify and compound their distress and upset consequent upon the abduction of their daughter.

3.45 Overall, it is impossible to disagree with Professor Brian Cathcart, professor of journalism at Kingston University, and his pithy and trenchant assessment:

 The press perspective

4.11 The Inquiry heard from two journalists involved in these stories, one employed by MGN and the other by NGN, the publishers of the Daily Mirror and The Sun newspapers generally, as well as from those who played an editorial role. As with the McCanns, no criticism is made or to be inferred of the journalists, because it was not their decision to run with the story generally or to publish any specific or individual pieces.

 

4.12 It is clear from their evidence that a number of former pupils of Mr Jefferies were approached by journalists to give their views of his character, personality and temperament. This in itself was a risky and unwise course of action; it could be treated as an opportunity for old scores to be settled, and some may also have believed that there could be no smoke without fire. To their credit, not every pupil succumbed to these temptations. Whereas it is true that many of the articles written about Mr Jefferies included favourable material, the point made by the Lord Chief Justice in the contempt proceedings (namely that this was quite insufficient to nullify the prejudicial impact of the disparaging material) is of course entirely valid; and in any event that which spoke of Mr Jefferies in positive terms did not do full justice to the quality and weight of that material. Furthermore, evidence given by one of the journalists does altogether chime with evidence the Inquiry has already noted in relation to the McCanns:

4.21 Mr Jefferies was the victim of a very serious injustice perpetrated by a significant section of the press. Without such reporting, it is hard to accept that he would have found it necessary to change his appearance and effectively lodge with friends for approximately three months. For those who have said that the Inquiry has been overly concerned with the complaints of celebrities, Mr Jefferies was not such an individual. Nor were the McCanns or the Dowlers. Clearly, all of these witnesses would have wished for nothing more than to have remained well out of the public eye and off the front pages of newspapers but, for reasons beyond their control, that was not where they found themselves.

The aftermath of Mr Brown’s evidence to the Inquiry

5.29 Considering the episode as a whole, the treatment of Mr and Mrs Brown by NI left much to be desired. It cannot be equated with the treatment experienced by the McCanns, Dowlers or Mr Jefferies, but, as a whole, the experience of the Browns provides a fine example of a number of aspects of unsatisfactory and/or unethical press practices further examined below.

2. Lack of respect for privacy and dignity

2.2 The experiences of the McCanns, the Dowlers, Christopher Jefferies and Max Mosley, already discussed in some detail above, also exemplify this indifference. However, these high profile examples were by no means exceptional, nor were all or predominantly concerned with the practices at the News of the World (NoTW). The Inquiry heard evidence from numerous public figures and private individuals alike, who were victims of a tendency within sections of the press to treat people without respect or dignity and to publish private information without regard to the consequences of, or public interest in, doing so.

2.44 Again, it seems that the intrusive reporting that Mr Grant spoke of is part of a cultural indifference within parts of the press to individual privacy and dignity. That manifests itself most frequently in the celebrity press, where individual private lives are treated, at least to some extent, as commodities. The evidence given by Miss Church, Ms Rowling, Mr Coogan and Mr Grant support this conclusion, as does the similar evidence heard by the Inquiry from Sienna Miller,61 Sheryl Gascoigne,62 Anne Diamond63 and Heather Mills.64 But the cultural indifference to privacy and dignity does not apply only to celebrities or those in the public eye. In addition to the experiences described by the Dowlers, the McCanns and Christopher Jefferies, the Inquiry heard evidence from, or about, numerous others who were not public figures but who had experienced seriously intrusive coverage and/or treatment from the press.

2.63 That approach from the proprietor may or may not have influenced the thinking of the editor of the Daily Express, Peter Hill, when considering whether to publish 38 defamatory and intrusive stories about the McCanns. Mr Hill’s evidence to the Inquiry betrayed a distinct lack of consideration for the dignity and privacy of the McCanns, and showed instead a focus on the circulation of his newspaper.86 Despite his knowledge that his reporters on the ground in Portugal had very real concerns about the truth of the articles they were writing, Mr Hill told the Inquiry that he was not troubled by the decision to publish because, in his view, there was a clamour for information about the Madeleine McCann story and his readers wanted to read about it.87 His evidence suggested a remarkable elision between what was justified in the public interest, and what would interest his readership. Such elision leaves little room for the protection of privacy if a readership is interested in reading about the private lives of others.

4. Breach of confidence and misuse of confidential and/or sensitive information

4.7 Although there was no clear evidence that the press remain directly involved in the trade in confidential information, there was ample evidence to suggest that large parts of the press were willing to publish confidential, private or sensitive information, without regard to the impact on the individuals concerned and without consideration of the public interest. The NoTW’s publication of Dr McCann’s diaries is a prime example of this, as is the publication of photographs, and the personal blog, of Sebastian Bowles after his death.

5. Harassment

5.1 One of the recurring complaints advanced by the Core Participant Victims was that the attention they received from the press and paparazzi amounted, at times, to harassment. Ms Miller gave the most striking description of her harassment as she recalled frequently running down dark streets on her own pursued by ten or more men with cameras. Her evidence is dealt with in more detail above. Similarly, the evidence of Ms Church, Ms Rowling,2 and Mr Coogan contained further examples of persistent, intrusive and distressing levels of attention by press and paparazzi. Furthermore, the evidence of the McCanns, the Dowlers2 and Baroness Hollins illustrated that complaints of harassment were not limited to so-called celebrities, but were shared by those with no public persona who, for a variety of reasons, were thrust into the public eye.

5.33 The harassment experienced by the McCanns on their return from Portugal, discussed above is another prime example of where responsible editors and photo-editors could not reasonably claim to have been unaware of the harassment experienced, but where employed and freelance photographers, as well as journalists, were sent to pursue the McCanns nonetheless. Mr Edwards could see in retrospect that the situation they faced was unacceptable but, at the time, he had sent his photographer to join the pack who had gathered outside their house. Mr Silva also acknowledged that, with hindsight, “possibly” some of the photographs (in particular those featuring unpixellated images of the McCann children) should not have been used, but noted that the story was “unique”, “intense” and one of the most difficult he had had to work on.

5.37 In a letter to the Inquiry, Mr Edwards referred to the treatment of the McCanns on their return from Portugal, acknowledging again that the situation was unacceptable. He blamed it on a “collective” problem for which television crews and international press were also responsible, but defended The Sun, denying that it had made any inappropriate publication decision. That cannot be right in circumstances where The Sun had a photographer within the pack outside the McCanns’ home. It is one thing to say that there is a collective problem and we are all responsible. It is another thing entirely to say that there is a collective problem, and therefore we cannot be held responsible individually.

5.38 Second, it seems that where a story is too big, as in the case of the McCanns, or where a readership’s interest in a celebrity is too great, as in the case of Mr Grant, the general principles applied to avoid harassment are relaxed, or even set to one side. That is consistent with Piers Morgan’s observation in a note to Assistant Chief Constable Jeremy Kirkby that “Fame and crime sends most of the usual rules out of the window”. It is also consistent with two observations made in other parts of this Report: first, that where the perceived imperatives of very big stories are concerned, there is a tendency to disregard the rule book, and second, that there has been, within parts of the press, a conflation of the public interest with what interests the public, such that individual privacy and dignity is ignored to satisfy the demands of a readership.

6. Intrusion into grief and shock

6.1 Shock  Partly a subset of harassment, a further complaint that has been levelled at the press is that it has shown insufficient respect for the special sensitivity of those grieving the death of those close to them, or in shock from tragic events. The press intrusion experienced by the McCanns, the Dowlers, and the Bowles family, are some of the more high profile examples of this complaint. But the Inquiry heard evidence of many more examples.

6.8 It might be said that the evidence of Ms Diamond, along with that of the Watsons and the Hillsborough example, are of purely historical interest, given that they each relate to publications more than 20 years ago. But the evidence heard by the Inquiry does not support that view. The experiences of the McCanns, the Dowlers and the Bowles family, all of which occurred much more recently, suggest that parts of the press can continue, on occasion, to display a cavalier attitude to intrusions into shock or grief.

7.3 The Inquiry was told that the demand for photographs and information about the children of those in the public eye continued well beyond the early days of the childrens’ lives. Mr Coogan spoke of the publication, without consent, of a photograph of his seven year old and five year old children.In addition to the many examples given by Ms Rowling of photographers seeking to take (and newspaper titles publishing) photographs of her children without consent, she told the Inquiry of a journalist placing a note in her five year old daughter’s schoolbag, and another journalist contacting the headmaster at her 15 year old daughter’s school to discuss private (and fabricated) information about her daughter.The intolerable levels of press and paparazzi harassment experienced by the McCanns on their return to Portugal was suffered not only by Drs Kate and Gerry McCann, but also by their two and a half year old twins who were with them throughout and who found the experience very upsetting. Photographs of the twins were published in numerous newspapers, without pixellation, and without any clear justification except for the fact that the story was “unique” and “intense”.

Deliberate or reckless inaccuracy in respect of big stories

9.35 A third category of inaccurate reporting of which the Inquiry heard substantial evidence was a tendency in parts of the press to set aside the need for rigorous fact checking in the context of fast moving and high profile stories. The clearest examples of this practice are the highest profile: the defamatory and reckless reporting of the McCanns and Mr Jefferies, dealt with above

9.36 Notably, this tendency was not limited to tabloid newspapers: in respect of Mr Jefferies in particular the broadsheets were not blameless. In addition, Mr Davies gave an example of the Guardian’s reporting of the Haut de la Garenne children’s home story as an example of where the Guardian, amongst others, had published inaccurate articles in circumstances where greater care would have led to the conclusion that there was no basis for the story. Consistent with the McCann and Jefferies examples, there was limited information available at the time of the reports of the alleged murders, torture and burials at the Jersey children’s home, but a significant public demand for information. Mr Davies said

12. Complaints handling

12.2 The first example was the response of a number of newspapers to complaints made by the McCanns in light of defamatory reporting of the circumstances of their daughter’s disappearance. Although some of the narrative has already been described, it bears brief repetition here. In September 2007, the McCanns’ solicitor Angus McBride met with all the editors of the national newspapers to convey the McCanns’ concerns about the defamatory reporting of Madeleine’s disappearance and the harmful impact this reporting was having on the search for her. That first meeting appeared to have no effect and, after continuing libellous reporting by a number of daily newspapers, further meetings were arranged between Mr McBride, Clarence Mitchell and the editors responsible. Those further meetings also appeared to have no effect and the defamatory reporting continued. On 26 September 2007, a solicitors’ letter threatening libel proceedings was sent to those newspapers which appeared to be the worst offenders. That letter, and a further letter sent on 10 October 2007, appeared to have no impact on the continuing libellous reporting.

12.3 In January 2008, the McCanns’ representatives sent a formal letter before action in advance of a libel claim to both the Daily Express and the Daily Star newspapers. Notwithstanding the fact that the newspapers were aware they had no clear factual basis for any of the libellous stories published,597 the Express Group wrote that they were not willing to publish an apology for the libels, but were willing to offer the McCanns a “platform” to tell their side of the story, and offered them an exclusive interview and photo-shoot with OK! Magazine. Unsurprisingly, the McCanns rejected the (astonishingly misjudged) offer. As Dr Gerry McCann wrote:

12.4 Although the Express Group subsequently published what they described as an “unprecedented” front page apology to the McCanns, that was not matched by their apology to the friends of the McCanns who had also been falsely accused (on the front page) of covering up the truth about Madeleine’s disappearance: their apology in the Daily Express was found on page five.

12.5 The McCanns also brought proceedings against Associated Newspapers Ltd (ANL), on the basis of defamatory coverage in the Evening Standard and Daily Mail. The claim was settled with a substantial payment to the Find Madeleine fund, and an apology in the Evening Standard. The Daily Mail offered the McCanns free advertising for the Find Madeleine fund, but refused to apologise essentially on the basis that the defamatory stories published by the title had been balanced with a number of favourable reports about the McCanns. Unsurprisingly, the McCanns were disappointed by the newspaper’s stance, but chose not to continue a protracted dispute.

Commercial pressures

2.11 By contrast, Mr Davies has suggested that tabloid newspapers are likely to place a greater emphasis on circulation numbers than the broadsheets. In part, this view has been substantiated by the evidence to the Inquiry presented by both tabloid and middle market newspaper editors, as well as by evidence presented to the Inquiry by the former tabloid journalists Richard Peppiatt, Mathew Driscoll and Paul McMullan. On the other hand, Mr Richard Desmond, the owner of the Northern and Shell Group and publisher of the Daily Express and Daily Star newspapers, said in evidence that he did not believe that there was a direct correlation between stories and sales. Other witnesses from his titles (and indeed elsewhere) expressed the same view, drawing on circulation data relating to the period when the story of the abduction of Madeline McCann featured heavily on the front page of the Daily Express.

2.12 The Inquiry need not resolve this issue, but I make the following broad observation. It may well be that the examination of any one individual case, such as the McCann example, will fail to demonstrate a ‘spike’ in sales over a relatively short period of time. However, it is a different question, and one less verifiable by empirical evidence, as to whether the publication of particular types of story over many months and years is responsible, at least in part, for long term trends and patterns in newspaper circulations.

Leadership and governance

2.70 For example, Mr Desmond would not accept that Mr Hill behaved unethically in relation to his stewardship of the coverage of the McCann story. When asked whether he agreed that it was up to the editor not to behave in such a way, he replied “No, not at all. Every paper – I didn’t bring every paper with me, but I’m sure we can justify my statement – every paper every day for that period of time was talking about the McCanns. It was the hot story – it was the story.”
 

2.71 Mr Hill was likewise unrepentant about the coverage of the McCann case. He justified it as follows:

2.72 It is notable that his justification again relied heavily on the fact that other titles were printing the stories, as if that in itself provided a basis for vindicating the accuracy of the story. Editor-in-Chief of Associated Newspapers, Paul Dacre, whilst accepting that errors had been made in the reporting of Mr Jefferies’ case, emphasised that coverage by the Daily Mail was less offensive than at many other titles. In this respect, he agreed with the suggestion that there is a snowball effect that impacts on the way in which other newspapers report the same story, observing: “I think the way the boundaries are pushed by the press collectively almost encourages some papers, not all papers, to push the limits too far”.

2.73 An element of relativism was again evident in Mr Dacre’s appraisal of Daily Mail’s coverage of the McCann story:

Mr Dacre described the pressure within the newsroom to carry the same stories as other papers.

4. The press response to this Inquiry

4.2 The publicist, Max Clifford was asked to comment on the effect, if any, that the Inquiry and the general public mood were having on the current work of the press. He said this:

3. Tensions in the relationship between the media and the police

3.9 Dr Gerry McCann said of the media interest following the disappearance of their daughter Madeleine: “Nothing could have prepared us for the unprecedented media coverage, particularly in Portugal and the UK which followed” and spoke of “the intensity of media focus”.

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Relations with News Corporation and News International

Rebekah Brooks

3.42 Turning to specific issues, the Inquiry explored with both the Home Secretary, the Rt Hon Theresa May MP, and the Prime Minister what role Mrs Brooks and The Sun had played in the decision for the Metropolitan Police to review the case of the disappearance of Madeleine McCann. The review had the benefit of extra financial support from the Home Office and was a subject of interest to a number of newspapers and their readers. The object of the review was to establish whether there were any other avenues of inquiry that should be pursued.

3.43 On 11 May 2011, Mrs Brooks saw two of Mr Cameron’s SpAds about the review. Both she and Mr Mohan also spoke to the Home Secretary about it by telephone. Mrs May was able to explain that the decision to have the Metropolitan Police review the case was, in fact, not one which had been made suddenly:

3.44 She was clear that she had not been threatened with adverse coverage if she did not support the review by either Mrs Brooks or Mr Mohan. On the contrary, she had called them to tell them about developments: “I think it was a call at my instigation”. The exchange with Counsel to the Inquiry was as follows:

3.45 The Home Secretary did not feel that she had been pressured behind the scenes on the issue to take a position she would not otherwise have taken. Rather, she said:

3.46 The Prime Minister similarly had not felt pressured by Mrs Brooks, whether directly or indirectly, to support and finance the review: “Pressure? No I wasn’t aware of any pressure”. He had checked and confirmed that the additional central government funding that was to be provided to the Metropolitan Police was being properly deployed. When asked whether Mrs Brooks’ visit to his SpAds had been reported to him, he said:

3.47 When it came to the influence of newspaper campaigning on the issue, Mr Cameron had rightly taken care to ask himself whether he was being confronted with self-interested media pressure or genuine public pressure:

3.48 Mr Cameron and Mrs Brooks did discuss the phone hacking story. Mrs Brooks recalled that in the period after the Guardian’s July 2009 story, they spoke about it in general terms “on occasion” and once more specifically in late 2010 when there was an increase in the number of civil claims alleging phone hacking and seeking compensation. About the general conversations, Mrs Brooks said:

3.49 On the occasion of the more specific conversation, she could recall only in general terms what Mr Cameron had asked:

3.50 As for what she had told Mr Cameron, she said:

3.51 Mr Cameron had little recollection of the conversation but did not deny asking questions about the subject:

3.52 From these imperfect recollections, it can be seen that the Prime Minister was paying attention to the emerging story, recognising its sensitivity, but does not appear to have focused on any detail. The indications are that he was provided with only general and publicly available information.

3.53 When, on 15 July 2011, after the story had reached its height, Mrs Brooks resigned from her position as Chief Executive Officer of News International, she recalled receiving a message of support from Mr Cameron, albeit indirectly. The exchange with Counsel to the Inquiry on the subject was this: “

3.54 It was but one of a number of messages of support or commiseration which she received from politicians, those working in their offices and others. The messages from politicians were all indirect and predominantly from Conservative rather than Labour politicians. This may have been more a reflection of News International’s support for the Conservatives and a legacy of the company’s sudden move away from Labour in 2009 than anything else.

I3.55 As is well known, Mrs Brooks is currently facing criminal charges in connection with allegations of wrongdoing at the NoTW, including in relation to phone hacking, perverting the course of justice and conspiracy to commit misconduct in public office. As is equally well known, she vehemently denies wrongdoing and has declared her intention of mounting a vigorous defence to all charges.

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2.5 The PCC was also, on occasion, able to mitigate extreme media pressure on newsworthy individuals. Dr Gerry McCann, for example, gave evidence that the PCC managed to limit the intrusion by journalists and press photographers into the lives of his twin son and daughter in the aftermath of the disappearance of his daughter Madeleine:

6.4 There are a number of further issues that link to the voluntary nature of membership and the lack of appropriate incentives to maintain membership. Perhaps most significantly, if an editor disliked a particular decision by or approach of the PCC, newspapers could make credible threats to leave the self-regulatory system. Although there were a number of factors behind the decision of Northern & Shell to leave the PCC, one particular factor identified by witnesses for Northern & Shell was the public criticism by Sir Christopher Meyer of Peter Hill , the editor of the Daily Express, in light of the coverage by the newspaper of the disappearance of Madeleine McCann. Whether that criticism should have been couched differently is not the point: rather the implications of the ability of editors to react to criticism from the PCC in this way are real.

Monitoring and investigations

6.26 There are clearly circumstances when it would have been appropriate for the PCC to launch an investigation of its own motion, deploying the powers at its disposal under Article 53.1A. One clear case is in relation to newspaper coverage following the disappearance of Madeleine McCann. A fuller exploration of the conduct of the press in that case appears in Part F Chapter 5 above, but for present purposes the focus is on the PCC alone. It is easy to see why the McCanns might not have wished to launch complaints on their own account, given the scale and tone of media interest in them, and the nature of Sir Christopher Meyer’s advice to Dr Gerry McCann. It is, in my judgment, inexplicable that the PCC chose not to exercise its discretion to investigate in such a case.
 

6.27 I note in this regard that a number of individuals gave evidence that they did not complain to the PCC because they were concerned that doing so would lead to retaliation from the newspaper industry in the shape of negative coverage or future invasions of privacy. Had the PCC initiated investigations of its own motion, or accepted third party complaints, the issue of retaliation would have been deadened. The PCC’s policy served to perpetuate a wholly unsatisfactory state of affairs whereby complaints were (and remain) dis-incentivised and the PCC’s own contribution to the evolving principles surrounding the issue of privacy in particular is limited. Lord Wakeham’s view was that “The PCC’s absence from the debate about privacy – including high profile adjudications – has … eroded its authority”. This view was valid in the late 1990s and remains so now.

Powers the PCC did not exercise – investigations where there were criminal or civil proceedings

6.32 Third, Article 53.3(c) is potentially of extremely wide application since most breaches of the Code could also give rise to civil action; this provision as drafted therefore suggests that in these circumstances (ie, the paradigm case of Code breach) the entertaining of a complaint by the PCC requires particular justification. Since there is no policy setting out how the PCC will exercise the discretion established by this Article, it is not clear whether the PCC interpreted this provision in so restrictive a manner. What is clear is that these Articles taken together were the purported basis for Sir Christopher Meyer’s advice to Dr McCann that the latter should take legal action in relation to highly defamatory and offensive articles above the disappearance of his daughter Madeleine, but that such a course of action would prohibit Dr McCann from seeking redress through the PCC.

6.33 In one area at least, the PCC appears to have been eager to take on cases which might otherwise have resulted in civil actions. Exercising this discretion, the PCC sought to gather in as many cases relating to privacy as possible, thereby restricting the number of privacy actions which went before the courts, despite (or perhaps because of) the option for complainants to bring a civil action for breach of privacy at least since the passage of the Human Rights Act.152 In my view these provisions have a stifling effect on the operation of the PCC, and are exceptionable. There was a lack of consistency and transparency in the exercise of the PCC’s discretion under Article 53.3(c) that militated against the proper function of the organisation as a proper regulator. More so the use of this discretion, particularly with regard to privacy, helped facilitate the PCC’s function as a shield for newspapers against litigation.

The sanctions did not bite

6.57 A similar pattern of events followed the public criticism of the former editor of the Daily Express, Peter Hill. Sir Christopher Meyer criticised Mr Hill for his newspaper’s coverage of the story of the disappearance of Madeleine McCann, coverage for which the Express eventually apologised publicly and paid substantial damages to the McCann family for defamation. However, when, somewhat late in the day, Sir Christopher excoriated Mr Hill and the Express’s coverage on the Radio 4 Today programme, the response of Northern & Shell’s proprietor Richard Desmond was not to criticise Mr Hill but rather to commiserate with him:

6.58 In these two instances, criticism of an editor by the PCC – whether by formal adjudication or very public criticism by its Chair – does not seem to have had any negative effect on the careers of the editors concerned. Mr Morgan went on to continue a very high-profile career in journalism; Mr Hill is still employed by Northern & Shell as Editor Emeritus, although he did resign from the PCC shortly after the events in question. There is nothing to indicate in either case that the involvement of the PCC had the impact which is claimed for it.

8. Conclusions

8.6 When the PCC failed to initiate an investigation over newspaper coverage of the McCann case, once again the CMS Select Committee criticised the PCC for this failure. That report concluded:

Chapter 2 The Self Regulatory Model Proposed by the PCC and PressboF.

1. Industry acceptance of the need for reform

1.1 In the early days of the Inquiry I made it clear that I was keen that the press industry should come forward with a credible proposal for the future regulation of standards across the press. I said that it was critical that the press should engage in the debate about how its regulation should move forward,1 that this was a problem for the industry and that the industry had to solve it.
I also explained that it was important that a solution should be found which worked both for the press and for the public and I looked to the press to come forward with proposals that would fit that brief; however, in the meantime I would continue looking for ways to improve the system.3 It is difficult to find an objective test for what ‘works for the public’. The public have three distinct roles here: first as readers of newspapers, second as citizens of a democratic country and third as the people about whom newspapers write. It is important that the interests of the public in all three roles are recognised and protected: the Prime Minister said that the test must be whether a solution works for the Dowlers and the McCanns.