by Max Mosley
The inquiry started with a ‘seminar’. A number of experienced journalists and media pundits were invited to explain to Lord Justice Leveson how they saw things and how the press worked. Some newspapermen, particularly former Sun editor Kelvin MacKenzie and Daily Mail editor Paul Dacre, put in very self-satisfied and smug performances. The press generally seemed to be taking the inquiry lightly. This was understandable: they had successfully seen off six or seven similar initiatives since the Second World War. I hoped that this time, they might be making a mistake. And, indeed, the condescending and complacent tone they had adopted for their lectures at the opening seminar changed as the victims’ evidence started to emerge. Dacre’s arrogant and patronising attitude later changed to one of sweaty resentment when he was recalled to the inquiry to explain why his publications had branded Hugh Grant’s evidence a ‘mendacious smear’.
When the inquiry proper began, our legal team’s excellent work assembling the victims’ evidence paid dividends. They managed to bring them on in the right order for maximum effect and were able to help the inquiry team counter the arguments the newspapers offered in response. The result was devastating and the tabloids began to realise they had a real problem.
Lord Justice Leveson himself was impressive. Nothing seemed to get past him – he was completely impartial and went to great lengths to be fair to everyone, but always seemed to make the key point at the right moment. With all the proceedings broadcast live on the internet and much of the time on national television, the general public could watch. It was important that the public should see what was going on and come to their own views upon the evidence, rather than relying on newspapers whose spin on the proceedings turned out to be every bit as self-serving as expected. I learned later that the hearings also had a big audience outside the UK, particularly in Washington, where a lot of people were keenly interested in Rupert Murdoch’s conduct.
When the time came for me to give evidence on 24 November 2011, I had a short talk with Robert Jay QC (as he then was) beforehand. He had a slightly unusual job for a lawyer: he was assisting the inquiry, helping it get to the truth, but he had to be neutral, unlike counsel for one side or the other in litigation. So sometimes he was perhaps more gentle with witnesses who were being less than honest than would normally have been the case, but he had various subtle techniques for highlighting the moments when witnesses were not being straightforward.
He gave me plenty of opportunities to say what needed to be said. It was great to have the chance to make points I really cared about, particularly about access to justice. When I suggested that only 1 per cent of the population could afford to bring an action for defamation or breach of privacy, Leveson looked at me and said: ‘I think you’ll find it’s less than that.’ He was right, of course, and in the inquiry’s report he set out a means of rectifying this very major problem.
As he already had with other witnesses, Leveson asked what I thought he should do. I volunteered to send in some ideas. He thanked me but made it clear he might well ignore them – it was up to me if I wanted to do the work. I worked on my proposals over Christmas 2011 and, when a first draft was ready, I sought views from lawyers and journalism experts like Professor Steve Barnett. The responses were all very helpful and positive and I sent in the final version. Some weeks later I was invited to elaborate and resubmit, which I did. I don’t know whether the ideas I sent in had any real effect, but on reading the inquiry report I could see they had at least been taken seriously. I gave evidence again in July 2012, this time quite briefly.
When evidence of widespread phone hacking by News of the World journalists had emerged towards the end of 2010, the Murdoch organisation had been forced to abandon its elaborate cover-up of the phone-hacking scandal because the ‘single rogue reporter’ story was now obvious nonsense. Their response was to come up with a new line. They now claimed there was ‘zero tolerance of wrongdoing’ within the News Corporation organisation and its subsidiaries. Murdoch himself repeatedly claimed that this was now the rule.
Having heard about the new zero-tolerance line, I wrote to Rupert Murdoch at his New York headquarters on 10 March 2011:
Dear Mr Murdoch
By email and by post
Your companies have a policy of zero tolerance towards wrongdoing by employees. This has been reiterated by you and by those speaking on your behalf, particularly in the context of recent allegations of phone hacking at the News of the World.
You may know that in 2008, I sued the News of the World over a story about my private life. However, you are probably not aware that during the trial it emerged that the chief reporter of the newspaper, a Mr Neville Thurlbeck, had set out to blackmail two of the women involved.
The News of the World published its story about me on 30 March 2008. It wanted a follow up. To this end Mr Thurlbeck sent emails to two of the women seeking their stories. He threatened to publish their pictures in the next edition of the News of the World if they refused to give him what he wanted.
Mr Thurlbeck’s conduct is described in detail in Mr Justice Eady’s judgment (Ref. [2008] EWHC 1777 (QB), starting at paragraph 79. The blackmailing emails are quoted by the judge at paragraphs 81 and 83. As Mr Justice Eady points out: ‘It is elementary that blackmail can be committed by the threat to do something which would not, in itself, be unlawful’ (paragraph 87).
The editor of the News of the World, Mr Myler, was questioned about this during the trial. The relevant exchange is at paragraph 85. Mr Myler was then asked if he had raised the matter with Mr Thurlbeck (paragraph 86). Mr Myler said he had not because he had not been aware of the emails at the time and, when he did become aware, did not raise it because it was ‘considerably after the event’. The trial was at the beginning of July 2008, the emails were sent just three months earlier.
The judge (again at paragraph 86) said this was ‘effectively a non-answer from which it would appear that Mr Myler did not consider there was anything at all objectionable about Mr Thurlbeck’s approach to the two women, as he did not query it at any stage. This disclosed a remarkable state of affairs’ (emphasis added).
Since then, despite strong evidence that Mr Thurlbeck had committed a serious criminal offence in the course of his employment, he is still the chief reporter of the News of the World. No disciplinary proceedings of any kind appear to have been taken. As your lawyers will confirm, blackmail carries a maximum sentence in the UK of 14 years’ imprisonment.
In the light of your zero-tolerance policy towards wrongdoing, would you please give instructions that this matter be investigated without further delay and appropriate action taken?
Yours sincerely
When Murdoch didn’t bother to reply, I had given the letter to the inquiry. It duly came back to haunt him when he gave evidence on 26 April 2012. He was questioned about it by both Robert Jay and Lord Justice Leveson:
ROBERT JAY: Can I ask you, please, about the letter Max Mosley wrote you, 10 March 2011? It’s MODI this time, 00031562. [A reference to where the letter was in the inquiry’s documents.] I think you remember this letter, don’t you, Mr Murdoch? It’s going to come up on the screen in a few moments, I hope. We can find it for you.
RUPERT MURDOCH: No. I have looked into the question of correspondence with Mr Mosley, and I did not read – I was out of town or something and my assistant sent them to whoever was the chief executive of News International to handle and I received an email, a coded email only yesterday about it from him, passed again to Mr Mockridge, the chief executive, to handle.
Q: The point Mr Mosley was making accurately was that Mr Justice Eady, in a judgment given out of this building, referred to blackmail being committed by journalists employed by the News of the World. You were aware of Mr Justice Eady’s comments, weren’t you?
A: I am aware now, and with great respect to Mr Justice Eady I think he suggested that one of the ladies in the picture of this Nazi orgy had been offered to have her face pixelated out of [sic] they would co-op
erate with the story. Again, with great respect to Mr Justice Eady, I’m not as shocked as he is by that. I’m much more shocked by the behaviour of Mr Brett in not telling him the truth of a lot of things.
Q: Don’t worry about Mr Brett, Mr Murdoch. Have you read Mr Justice Eady’s judgment?
A: No.
Q: Because he, in a very careful and considered judgment, having analysed all the evidence, oral and written, came to the clear conclusion, some may say it was the only conclusion he could possibly have reached, that your journalists, or at least one of them, had perpetrated blackmail of these two women. Is it really your—
A: Two women or one?
Q: Yes. Is it really your position: we don’t have to worry about what he says?
A: No, it’s not my position at all. I respect him and I accept what he says. I’m just simply saying that a journalist doing a favour for someone in returning [sic] for a favour back is pretty much everyday practice.
Q: Well—
LORD JUSTICE LEVESON: I’d just like to go into that for just a moment, please, Mr Murdoch. First of all, I think it ought to be made very, very clear that Mr Justice Eady rejected the allegation there were Nazi overtones to this incident, but I merely identify that fact. It’s not what I want to ask you about.
Do you say, from all your experience of journalists and journalism, that it’s appropriate to say to a member of the public, ‘We have this photograph of you, we can do this two ways: we can embarrass you by unpixelating your photograph, even though there may not be a public interest in identifying who you are, and that’s what we will do, or alternatively, we’ll give you some money and you tell us the inside story’? Is that an appropriate way for a journalist to behave?
A: I don’t know that she was offered money, but it happens.
LORD JUSTICE LEVESON: She certainly was offered money.
A: Well I accept that, sir, if you say so, and I apologise—
LORD JUSTICE LEVESON: Look, Mr Murdoch, I wasn’t there, I’ve only read the judgment.
A: Yes.
LORD JUSTICE LEVESON: And I’ve heard the evidence about it. But I ought to make it clear to you, and I would be very grateful for your help on the topic, that I find that approach somewhat disturbing, because I don’t think Mr Justice Eady is using too strong a word if he describes it as a form of ‘blackmail’. And therefore, if it is the culture and the practice of the press that this is acceptable or justifiable, then I would like to know that. I really would.
A: Look, I apologise, sir. I have not read Mr Justice Eady’s thing.
LORD JUSTICE LEVESON: Yes.
A: And I may well agree with every word if I read it. But it’s a common thing in life, way beyond journalism, for people to say, ‘I’ll scratch your back if you scratch my back.’
LORD JUSTICE LEVESON: Yes—
A: To seek to go beyond that, I disagree.
LORD JUSTICE LEVESON: That’s the point.
A: And I accept your words. Or Mr Justice Eady’s words, but I have not read it, I’m sorry.
LORD JUSTICE LEVESON: No, but you can see why this is at the very core of part of what I am doing?
A: Yes.
LORD JUSTICE LEVESON: And therefore, without asking you to return, I think I would ask you, if you don’t mind, to look at that judgment and let me know whether you think what Mr Eady there describes, if it be right – and I don’t ask you to reach a judgment on right or wrong, the newspaper could have appealed the judgment, they didn’t – reveals a culture and practice that you think is (a) accurate in the sense that it’s more widespread and therefore everything everybody does, or (b) inappropriate. Do you understand the question?
A: I understand it, sir, and I will be very happy to read it and to write to you and submit a document.
LORD JUSTICE LEVESON: That’s perfect, that’s fine. But I would like your considered view on that question.
A: Yes. I’m sorry that I haven’t got one.
LORD JUSTICE LEVESON: No, no, that’s quite – you’ve had more than enough to cope with, although one might ask whether the fact that a High Court judge in England had reached this conclusion about one of your papers would itself be brought to your attention, but I gather it wasn’t.
A: No.
LORD JUSTICE LEVESON: Yes, Mr Jay.
MR JAY: Well, you said it was a common thing in life, ‘I’ll scratch your back if you scratch my back’, and that’s true, that’s human nature, but it’s interesting that you say that’s no part of the implied deal in your relations with politicians over 30 years, Mr Murdoch. Is that right?
A: Uh – yes. I don’t ask any politician to scratch my back.
After trying to pretend that Thurlbeck had done nothing wrong, something that Lord Justice Leveson plainly would not buy, Murdoch was forced to put in a second witness statement to try to extricate himself from his untenable position. In this he explained that his New York office had sent my letter of 10 March 2011 to Rebekah Brooks who, however, was ‘consumed with the emerging facts about phone hacking’. I suspect that in reality she saw no point in investigating. Blackmail was such a well-established technique at the News of the World that she would have known there was nothing to investigate.
Murdoch’s second witness statement also explained that when Brooks’s successor, Tom Mockridge, realised I had not had a reply he wrote to me on 17 April 2012 apologising for the delay of more than a year. Mockridge’s letter was written 13 months after News Corporation received my letter and just nine days before Murdoch was due to give evidence to the inquiry. This was obviously not a coincidence. They probably suspected (rightly as it happens) that I had evidence of delivery from the US Postal Service.
In his letter, Mockridge promised he would write to me with a full response as soon as he was able to. Needless to say, more than three years later the promised full response has still not arrived. Perhaps if there is a further inquiry I will get it – once again, just before Murdoch has to give evidence. I believe that the way Murdoch and his people dealt with my letter was a perfect illustration of their attitude of utter contempt for the law, the judiciary and the courts.
As the inquiry continued, the press, police and many of the politicians were left looking compromised. We were confident that some useful proposals were likely to emerge but, if this happened, the press would strongly object. Accordingly, the ultimate battle would be political. In an attempt to cover this, I hired political strategists BBM as experts to help in what I knew would be a difficult phase. But we were by no means alone – Hacked Off plus several of the victims’ lawyers were on the same side.
Hacked Off were doing an excellent job. Hugh Grant proved a very effective spokesman and Professor Brian Cathcart wrote one article after another demolishing Leveson’s critics. But an almost united press was by now doing its utmost to discredit the inquiry, sometimes in an extraordinarily dishonest way. They were desperate to get back to business as usual, as they had succeeded in doing after each previous government inquiry into the press. They had the megaphone and used it relentlessly to drown out all attempts at balanced debate.
Finally, in November 2012, the Leveson Report was published. At first sight, I was disappointed because it did not recommend prior notification. Yet on closer reading it had almost everything that was really needed, particularly access to justice for those who suffer defamation or a breach of privacy but cannot risk hundreds of thousands of pounds in costs. It had some of the things I had tried to suggest, but was far more extensive and subtle than anything I had come up with.
Although it did not recommend a legal obligation to notify of the kind I had sought in Strasbourg (indeed, it specifically said its proposed regulator should not be able to prevent publication of a story), its recommendations, if implemented in full, would strongly encourage prior notification because of the financial risk to a newspaper that failed to behave properly. It also contained proposals for a vitally important arbitral system to give access to justice at minimal cost. Leveso
n had fully understood that there was no point in introducing new libel laws if fewer than 1 per cent of the population could afford to use them. Legal aid has never been available for libel; therefore, an inexpensive arbitral system was essential in order to provide access to justice for those whose rights have been infringed.
The arbitral system was equally necessary to deal with breach of privacy. Here, redress after the event does not right the wrong because the issue is not whether the private information was true, but whether the newspaper had sufficient reason for publishing it. Unlike libel, where an award is vindication and shows the story was untrue, damages for invasion of privacy can do nothing to protect the victim’s reputation or family life.
Leveson’s proposed system of arbitration suggested a way of dealing with both sets of problems. It offered protection against libel by giving access to justice for individuals with limited resources, while newspapers would also see their legal costs plummet if they joined the scheme. And it offered protection for privacy by setting up incentives for newspapers to think very carefully before publishing a story that was a breach of privacy. This mechanism would be entirely voluntary; a newspaper could insist on going to court, but would then be at risk of paying the costs of both sides as well, perhaps as exemplary damages in a really bad case.
Publication of the Leveson Report brought a deafening chorus of tabloid disapproval. Most of the press did their utmost to misrepresent his proposals. Nonsensically, they claimed that 300 years of press freedom was under threat. It’s quite difficult to understand how anyone can describe the UK print media as ‘free’ when 70 per cent is controlled by four individuals. But apart from that, there was nothing in Leveson’s proposals that would interfere with genuine press freedom; quite the reverse – they would also prevent wealth being used to inhibit investigative journalism. He had managed to reconcile complete and continuing press freedom with just (but only just) enough statute to prevent the worst elements of the press simply going back to their old ways after a year or two. The claim that his ideas amounted to state control of the press was plainly absurd – there was no mechanism for this – but even some serious journalists objected to his proposals. Theirs was a thin-end-of-the-wedge argument, but in the end most would admit their objections were theological rather than rational.
