by Max Mosley
It did not take long to reveal that Myler and his editorial assistants had not been interested in the truth of their story; they just wanted to run it. Myler at least tried to tell the truth on oath in the witness box despite his failure to do so in his newspaper. But Thurlbeck stuck stubbornly to a little list of points he had brought with him. He did not impress the judge, particularly when he tried to claim he had not set out to blackmail the women despite being confronted with his own emails doing just that. Even when giving evidence on oath, he had little regard for the truth, as was made clear in Mr Justice Eady’s judgment. More recently, Thurlbeck ran a blog telling the world repeatedly that he had never hacked a phone, only to plead guilty when his lies finally caught up with him. He is, to put it bluntly, a bit thick and a nasty piece of work.
There was a sensational start to the fourth day when the News of the World’s star witness, Woman E, who had worn the hidden camera, failed to appear. They needed her to back up the interview in which they had quoted her as saying a Nazi scenario had been planned. It had already become evident that the story published on the second Sunday, which purported to be an interview with her, had simply been invented by Thurlbeck. It also became clear that inventing stories (in addition, of course, to blackmail and phone hacking) was an important element in his work as the newspaper’s chief reporter. Warby told the court she was unwell. The judge asked if he had evidence of this. Of course, he hadn’t. We all realised the truth: she was not prepared to commit perjury for the News of the World as they had plainly hoped she would.
I suspect they knew they would probably lose the case unless I withdrew at the last moment, but they seemed to have decided to try to use it to deter anyone who might wish to hold them to account for a breach of privacy in the future. Warby emphasised repeatedly the most private and (his clients would hope) embarrassing aspects of the case. He did this particularly in his closing speech and I could only assume on instructions. As a former barrister, I can understand that sometimes one has to argue a case on difficult facts. One of the traditions of the Bar is that you accept any case – the analogy given is that of a London taxi that has to accept any fare. But that is entirely different from setting out to embarrass a claimant and demonstrate to others what they would face if they took on News International.
I thought Warby’s approach to my case unworthy of a member of the Bar. He must have known none of his grandstanding would impress the judge. By the time of his closing speech, the News of the World’s case had been dismantled by both evidence and legal argument. This was merely providing material for the gutter press to print in the next day’s editions. This may have served his clients but it was not going to rescue his case.
As James Price QC, who was representing me, said in response to Warby’s closing speech:
What my learned friend has just said in public appears to have been said as much for the benefit of the press, as for your Lordship. We will be inviting your Lordship to reflect the outrageous things that have just been said in your Lordship’s award of aggravated damages. This is quite deliberately designed to increase the humiliation of the claimant for having had the temerity to bring this action against the News of the World, and it just shows what a newspaper can do. If it can get past the interim injunction stage by preventing the claimant from having the opportunity to bring it before a judge and stop the publication, it can then castigate the claimant in public, and that in future is most likely to stop people having the temerity to sue the News of the World, and that, we shall invite your Lordship to reflect in the award of damages.
I hope that in reflecting on his performance Warby has come to realise he should have refused to go along with his clients’ plan. The code of conduct of the Bar does not allow a barrister to ‘compromise his professional standards in order to please his client’.9 In my view, Warby’s closing speech, when he must have known the case was lost, did compromise those standards. But at least I knew the judge would see exactly what the News of the World and its lawyers were up to.
It later became public knowledge that what Thurlbeck wrote and Woman E signed for the second News of the World story was false, quite apart from the additions made by Thurlbeck without her knowledge. After the judgment, she surprised us all by appearing on Sky News to confirm there had been no Nazi element that afternoon in the Chelsea flat, that the News of the World had made it all up and she bitterly regretted making the secret film for them. There was no doubt now why she had refused to give evidence.
Two weeks later, the judge, Sir David Eady, handed down a 54-page decision in my favour. He said that I ‘had a reasonable expectation of privacy in relation to sexual activities (albeit unconventional) carried on between consenting adults on private property’ and found ‘that there was no evidence that the gathering on 28 March 2008 was intended to be an enactment of Nazi behaviour or adoption of any of its attitudes’. He added that ‘there was no public interest or other justification for the clandestine recording, for the publication of the resulting information and still photographs, or for the placing of the video extracts on the News of the World website – all of this on a massive scale’.
However, as predicted by my lawyers right at the beginning, the damages, although at £60,000 a record for a privacy case (which it remains to this day), did not cover the difference between what the newspaper was ordered to pay towards my costs (about 82 per cent of the total) and my lawyers’ bills.10 But that was of secondary importance. What mattered was that the judgment had made it absolutely clear that the Nazi allegation was a lie. It also established the principle that the article was an unlawful invasion of privacy. I made a quick little speech for the media on the steps of the High Court, accompanied by my lawyers and the Quest personnel. Myler followed and clearly still didn’t get it. The judgment was widely welcomed. It became very clear the general public was on our side and felt it was high time the News of the World got its comeuppance.
Predictably, the Daily Mail editor, Paul Dacre, was outraged. In a speech to the Society of Editors, he made a disgraceful and cowardly attack on the judge. He also arranged for an obnoxious article about Eady to appear in his paper. He has a large collection of second-rate hacks and aging harpies to set on anyone who displeases him. Attacking a judge in a personal and offensive way about something he or she has done in a judicial capacity is about as low as a journalist can get. A judge cannot answer back. What a disgusting and contemptible fellow Dacre is. Perhaps he cannot help himself, but it’s extraordinary and shameful that the Rothermere family is prepared to tolerate him as an employee.
As the doyen of the gutter press, Dacre led the chorus of fury, although others were equally unhappy. The judgment had made it more risky for them to indulge in gratuitous breaches of privacy for no better reason than titillation. The News of the World even had a former Archbishop of Canterbury, Lord Carey, available to criticise the judgment and attack me. His article described my conduct as ‘indecent’ and ‘unspeakable’ then repeated the tired old canard: ‘If a politician, a judge, a bishop or any public figure cannot keep their promises to wife, husband, etc., how can they be trusted to honour pledges to their constituencies and people they serve?’ He completely ignored the fact that some of the most successful and revered public figures of the last two centuries were often less than faithful to their partners. No one would deny that a married couple should be faithful (unless they agree otherwise) but infidelity is a matter for the couple. As my wife said when she read Carey’s article, ‘Of course I don’t like what has transpired, but it’s none of his business.’
Carey claimed the judgment was an attack on press freedom and was ‘socially undermining’, whatever that’s supposed to mean. It is surely nonsense to suggest that entirely lawful sexual activity in private involving a very small number of consenting adults could ‘undermine’ anything. But suppose those adults really were doing something wrong: it should be obvious that delivering details to three million homes might encourage others to do the same
. This very elementary thought seems to have eluded Carey. Perhaps the Murdoch shilling clouded his judgment.
I know Murdoch’s money was involved because I wrote to Carey to ask him and he admitted to having a paid contract to write for the News of the World. To my mind, this is truly shaming, particularly for someone claiming to be a Christian leader. The paper’s business was selling sex, partly by writing about it, partly by advertising pornography. And its information about sex was often acquired by criminal means, including phone hacking, bribery and blackmail. In my case, the newspaper used both bribery and blackmail, as Carey knew perfectly well from the judgment of Mr Justice Eady on which he based his article. It seems extraordinary that he would accept money from such a source – in my view, his conduct amounts to living at least partly off the proceeds of immorality. Not what you expect from a retired clergyman.
Most civilised people understand that consensual sexual activity in private between adults is a matter of taste and concerns only those affected. In the modern world, some religious extremists try to tell grown-ups what they can and cannot do in their own bedrooms but responsible religious leaders do not. When the News of the World invited the then incumbent Archbishop of Canterbury, plus the leaders of the Catholic and Jewish religions in the UK, to comment on my case, all refused.
Before the case came on, James Murdoch circulated an internal newsletter to his staff saying what a great job they had done on the story – understandable, perhaps, for someone who claimed to be too stupid to seek an explanation for the massive amount of money he authorised his company to pay to settle the Gordon Taylor case. Later that year, despite knowing of the judge’s finding that their chief reporter had tried to blackmail two of the women involved, the News of the World applied for the ‘Newspaper of the Year’ award on the basis of their story about me. They said they were fighting for a ‘high principle’. Presumably by that they meant the right to continue to act as Peeping Toms then blackmail and intimidate anyone who objected. This remarkable contempt for the courts and the rule of law was later to give the Leveson Inquiry a very clear insight into the morals of the Murdoch family and those who work for them. That the News of the World never appealed the judgment in my case shows they understood exactly what they had done.
The vote at the FIA General Assembly and the decisive win in the English High Court were both very important, and indeed essential as a basis for me to continue my response to Murdoch, but I knew this was just the beginning. I would be handicapped for the next 18 months or so because of my work at the FIA, but then I would be able to focus entirely on the issue.
While all this was going on we had to deal with Bild, the German equivalent of the Sun. They reproduced the News of the World pictures and the story without checking the facts. It was a level of journalistic insouciance right up there with their British counterparts. My German lawyer, Tanja Irion of Irion Kanzlei für Medienrecht in Hamburg, instituted proceedings against Axel Springer Verlag. At her suggestion, the public authorities also launched a criminal prosecution (Strafanzeige) against each Axel Springer director. That got their attention and they eventually settled by publishing an interview with me putting the record straight and paying €200,000 to charities of our choosing.
When my son Alexander died of a heroin overdose in May 2009, the press found out quickly, almost certainly from the police, some of whom in those pre-Leveson days used to earn squalid little bribes for such information. There was immediate press interest. When I arranged to meet Jean and some of Alexander’s friends in a restaurant near our house, a journalist tried to follow me. I had with me a surveillance expert from Quest, who easily outmanoeuvred the journalist so that he had to pretend to be a passer-by and go on his way. Quest then watched the restaurant although you would never have known they were there.
The Press Complaints Commission code required journalists to show ‘sympathy and discretion’ at times like that but, as we know, tabloid journalists and their newspapers seldom took any notice of the PCC or its code. On one occasion, I had journalists sitting in the cafe opposite the mews house where I was staying in London, but once again it was easy to avoid them and they eventually gave up.
A day or two later I went to Alexander’s house to go through his things. There was a young man sitting on a doorstep nearby. It took about five minutes to figure out he was a journalist when, after a short delay, more of them plus some photographers gathered outside the house. It was like watching vultures assemble. There was no back way out so I called Dominic Crossley, who soon appeared on a scooter and gave them all a letter saying that, if they did not leave immediately, we would apply to the High Court for injunctions against their newspapers.
From behind a curtain I watched them get their mobile phones out, presumably to call their news desks. After the News of the World case, they knew my lawyers did not make empty threats. Having made their calls, they all put their phones away and left. This was all very fine, but what do you do if you cannot afford top lawyers? I wondered if they had any idea what a death like that means to the immediate family. Could they really not imagine the utter desolation and despair we were feeling? I suspect they probably could but simply didn’t care. It’s quite worrying that people like that are sharing the streets with the rest of us.
Journalists and photographers even tried to get close to Alexander’s funeral. One appeared disguised as a rambler, but was immediately spotted by the people from Quest because his outfit was brand new. Quest did a great job keeping them away but, again, what do you do if you can’t afford Quest? We could have called the Press Complaints Commission but it took time for them to act, if indeed they acted at all. Once the journalists and photographers are present and you are being harassed you might as well call the Salvation Army. Of course, harassment is a criminal offence but I’m told calling the police is futile.
When Rebekah Brooks and Andy Coulson, two former editors of the News of the World, went on trial at the Old Bailey for phone hacking and other alleged offences, their very expensive lawyers tried desperately to claim Article 8 (privacy) rights on their behalf to prevent their sexual relationship becoming public. I wondered if they saw the irony or reflected for a moment on the feelings of those whose phones their newspaper had hacked precisely in order to deprive them of that same privacy and in blatant disregard of the law? Or whether they had the wit to contrast the care with which the court considered the Article 8 rights of Mrs Coulson and her children with the way in which, as editors, they would go to great lengths (even, in my case, a ‘spoof’ edition) to prevent any court reviewing their decisions to indulge in blatant and illegal breaches of privacy?
A civilised society requires respect for privacy. Those who really suffer when privacy is invaded are the victim’s family. They are usually completely innocent yet are the ones whose lives are exposed and who have to suffer the pointing fingers and knowing looks. I often wonder if the individuals responsible for the gutter press – people like Murdoch and Rothermere – ever stop to think of the damage they do and the pain they cause. Or do they only care about the money they make?
‘If you hadn’t done it, there wouldn’t have been a story’ is the standard response to the victim when the tabloids have damaged a family with one of their so-called exposés. That of course begs the real, indeed the only, question, which is whether it is right to publish. The law and civilised society say it’s not, but the tabloids have no respect for the law except, possibly, when it finally feels their collar. My experience and that of my family has led me to use every lawful means open to me in an attempt to prevent the tabloids doing to other families what they have done to mine. I very much hope that, when nothing further remains to be done, I will have contributed in some small way to that end.
After all this, we still hadn’t discovered who had initiated the whole thing. Was it just the MI5 man and Woman E? Did they genuinely not foresee the consequences of what they were doing? Did someone put them up to it? Of course I had enemies, particular
ly in Formula One, but would anyone go that far? The conventional wisdom in Formula One has always been that someone was behind it. I am not entirely convinced but I admit there are suspects. Eventually the truth will come out.
35
STRASBOURG
As long as I remained president of the FIA, I had little time to pursue the broader issue of privacy and the press, but I decided to bring a case in the European Court of Human Rights because I knew it would take a long time to reach a conclusion. Our case was that the absence of any law in the UK to compel a newspaper to put an allegation involving breach of privacy to the subject meant there was effectively no remedy in the UK. Once the information had been published, it could never be made private again. The only effective remedy was an injunction to prevent it being published in the first place, but you could only ask a court for an injunction to prevent publication if you knew about the story in advance. Even then, if you wanted to get it stopped, you had to be able to convince a judge that you were more likely than not to win a case for breach of privacy when it came to trial.
It followed as a matter of very simple logic that if Article 8 of the European Convention on Human Rights (dealing with respect for private and family life) was to have any force in the UK, prior notification was essential. Once the story was out, not only could it never be made private again, the UK courts could offer no remedy because anyone suing would have the breach of privacy repeated in open court and then be given a large bill of costs. It followed that the UK should either exclude Article 8 from the Human Rights Act or introduce a law requiring you to be warned if a story was going to be published that might invade your privacy. If the invasion could be justified under Article 10 (guaranteeing the right to freedom of expression and to receive and impart information) you would not be able to stop it. We were only concerned with cases where it could not be justified.