by Max Mosley
In practical terms, this would be a small although vital change. In 2009 the editor of the Daily Mail, Paul Dacre, told the House of Commons Culture, Media and Sport Select Committee that ‘in 99 cases out of 100’ the victim would have knowledge of the story. So we were talking about only the 1 per cent where a newspaper deliberately conceals its intentions from the victim. Presumably, they do this when they know their story is an invasion of privacy and would almost certainly be stopped if put before a judge. With serious investigative journalism, the person concerned always knows about the story because the journalist invariably asks for a comment. Needless to say, the press opposed my application. The last thing the tabloids want is human rights to interfere with the profits they hope to make through the illegal publication of private information.
Astonishingly, given his disgraceful behaviour towards the judge in my case, Dacre was also chairman of the Press Complaints Commission Code of Practice Committee, the body that made the rules governing the conduct of the press. That a person like him could hold such a position shows how morally bankrupt the PCC had become.
In March 2009 I took time off from the FIA to appear before the same select committee as Dacre and explained the case for prior notification. I think some of them could see that there was something worrying about an editor who wanted to invade someone’s privacy being the sole arbiter of whether or not to publish very private and potentially life-ruining information about an individual, while denying him or her any reference to a judge or other neutral outsider. Even more worrying, you would think, would be the absence of any remedy in law after publication, no matter how outrageous the breach of privacy, because of the cost and publicity disincentives to suing.
But there was much talk of censorship by judges, as if I were asking for some draconian new power for the courts. The fact that judges have always been able to order a paper not to publish (and sometimes do) was completely ignored. In reality, the only issue was whether the victim should always have knowledge and so be able to approach a judge. This simple point was deliberately obscured by talking about ‘chilling effects’ and glossing over the fact that, in all serious investigative journalism, the victim has knowledge, if only because of the need to put the allegation to him. The fact that a judge would never give an injunction if the effect might be to prevent lawful comment was also ignored.
Despite my attempts to explain, the committee did not seem to appreciate that the 1 per cent would only involve instances like mine, where the case for an injunction was so clear that publication was deliberately kept secret, even to the extent of publishing a ‘spoof’ first edition to prevent the victim – me – going to a judge. But this was back in 2009, when parliament and the government were terrified of the tabloids and for all practical purposes danced to the tunes of Murdoch and Dacre. Before appearing at the committee, I told a very senior MP how much I appreciated the invitation but, given the power of Dacre and Murdoch, I knew I would be wasting my time. The surprisingly frank reply was, ‘Well, there is an element of “don’t even go there”.’
Once I started to look at why the politicians were so frightened of the press, the reasons became clear. No political party was likely to win an election without the support of Murdoch and his newspapers, including the Sun. After the 1992 election it even boasted in a headline ‘IT’S THE SUN WOT WON IT’ when John Major was re-elected against the odds and the Conservatives won another five years in government.
In 1995 Tony Blair, then newly elected leader of the Labour Party, went all the way to Hayman Island in Australia to woo Murdoch. When challenged about this by an old Labour stalwart, he cited Faust’s pact with the devil, as described in his autobiography, A Journey. A few years later David Cameron made a similar pilgrimage to visit Murdoch on a yacht near Santorini in Greece. Extraordinary that the ‘Leaders of Her Majesty’s Most Loyal Opposition’ should feel compelled to make supplication to a foreign newspaper owner because they were convinced they would not be prime minister without bending the knee.
Such overt political influence was backed up with dossiers on the private lives of many MPs. These were kept confidential but the newspapers made sure the MPs knew they existed. The experience of Chris Bryant, the Labour MP and former minister, whose private life was exposed after he put Rebekah Brooks on the spot over making illegal payments to the police for privileged information, was there to remind them what would happen if they stepped out of line. Had I been an important politician, the News of the World would never have published their story about me. They would have told me that someone had given them the video but, not to worry, they would make sure it stayed secret, leaving the implicit threat in the air. The media barons and their editors use their power like old-style dictators and modern mafiosi. They are self-serving, unaccountable and vicious.
The Strasbourg hearing of my case came on in 2011. Lord Pannick QC appeared for me. This was the same David Pannick who appeared for the seven teams who had refused to race at the 2005 United States Grand Prix when their tyre supplier, Michelin, brought the wrong tyres. With him in Strasbourg were David Sherborne and Dominic Crossley, who had been my legal team in the News of the World case together with James Price QC. When we first went to see him to discuss the case, David Pannick surprised David and Dominic by announcing that he had once appeared before me. Of course, it wasn’t really just me, it was the FIA World Council.
Early on in this first conference he made the very valuable point that we didn’t need to go through all the layers of English courts and exhaust all domestic remedies, as is generally the rule before going to Strasbourg. This was because in my case there were no domestic remedies. We were complaining about the omission from UK law of any requirement for prior notification in privacy cases and pointing out that the result was a newspaper could simply ignore the right to privacy set out in Article 8 of the European Convention on Human Rights.
The hearing was quite short but there was a lot of media interest. Several UK newspapers had put in submissions that ignored our central point that, in the absence of prior notification, Article 8 is a dead letter, probably because it is almost impossible to dispute. They concentrated instead on their (in my view) wholly irrational fear of what they said would be the ‘chilling effect’ of a decision in my favour. They also implied I was seeking a law to allow a judge to stop a newspaper publishing a story, which was disingenuous because the courts could already order a newspaper not to breach privacy and quite often did.
The case was called Mosley v The United Kingdom. That amused me. It seemed so odd, somehow – me suing a country. The government at the time was still in a state of obsequious compliance with the wishes of the tabloid press. They sent a very modest but pleasant legal team and Pannick had much the best of the argument, as one would expect. As the judges were filing out, I caught the eye of one or two and got the distinct impression that they were on our side. However, the decision went against us.
It’s interesting to read because it is logical and makes sense until a certain point when the argument suddenly no longer seems to follow. It appeared to have been changed after it was first written. I am convinced the judges were warned by the British elements that, if they found in my favour, there would be a massive anti-Europe media storm in the UK. The tabloids already took every opportunity to attack the court and the Human Rights Act and invariably confused the Council of Europe with the EU and vice versa. A decision that might stop newspapers breaking the law whenever they felt like it would have caused outrage. Their reaction to Leveson a year or two later seemed to prove the point.
Perhaps some of the judges felt the greater good required the court to avoid giving ammunition to the anti-Europe campaign in the UK. After all, this was May 2011, still two months before Murdoch’s hold over Westminster was broken. The decision coincided with media hysteria that had developed over a so-called ‘super-injunction’ that the footballer, Ryan Giggs, had obtained to protect his privacy. The newspapers were prevented from publishin
g details but the information was available on the internet. There was a strong suspicion that much of the leakage on to the web was being organised by elements in the tabloid press in order to bolster their arguments against injunctions. They kept saying that the injunctions did not keep the information secret but merely hampered the written press. Privacy was still a dirty word. It was another age. The Sun and the Mail were delighted that I had lost, a little prematurely as it turned out. We asked the Grand Chamber for another hearing, but they refused. A battle had been lost, but the war would continue.
36
EXPOSING A CRIMINAL ENTERPRISE
I could not do much to pursue all this or look more closely at News International until my FIA mandate and all the associated work came to an end. But once Jean Todt was elected in November 2009, I was finally free. I could now devote all my time to the issue of privacy and, equally importantly, look properly at the practices of the News of the World. On 4 February 2010 there was a debate and professional development forum on privacy and the media in Gray’s Inn. The panel I was invited to join included Sir Ken (now Lord) Macdonald, the former Director of Public Prosecutions, Alan Rusbridger, editor of the Guardian, and other significant figures. Sir Alan Moses, then a Lord Justice of Appeal, was in the chair.
It was an interesting evening and there were many senior lawyers and judges present. For the first time in more than 40 years I met contemporaries from my Bar days back in the 1960s, several of whom were now judges. I commented that the way the Press Complaints Commission was allowed to operate was like having the Mafia in charge of the local police station. The room seemed to agree with that but I wasn’t sure how my jokes about Paul Dacre’s sex life would go down with such a grown-up audience. I was in two minds whether to make them, but as usual couldn’t resist. I was relieved when the laughter came.
During the question-and-answer session, there were interventions from the floor including Anna Ford and Tom Stoppard, who both had experience of the way the tabloids operate. For the first time, I heard about the Gordon Taylor settlement and that the publicist Max Clifford was also suing. It was now obvious that News International’s ‘one rogue reporter’ line was untrue and that criminal phone hacking was endemic at the News of the World. But how could this be proved?
I met Nick Davies, the Guardian journalist who was later to break the Milly Dowler story that led to the closure of the News of the World. He told me that when the police arrested Glenn Mulcaire, the private investigator who actually carried out the majority of the phone hacking for the News of the World, they had seized a vast treasure trove of notes and other material. This undoubtedly contained evidence of the extent of the newspaper’s criminality. Nick had written a terrific and hair-raising article about it the previous July (2009) but the Metropolitan Police, who had all this material stored somewhere in bin bags, were not prepared to look at it. The reaction of the police to Nick’s story was to wait for a few hours, then announce there was nothing new.
If someone were disingenuous enough, they could claim this was strictly true. The police had already been holding the material for three years, so they were being truthful when they said it was not new. The problem was that they were stubbornly refusing to examine it or, if they had looked at it, were doing nothing – presumably in order to protect their friends in the tabloid press. Like the politicians, the police were terrified of the tabloids. An unfavourable article could destroy a police career just as it could a political career. Two of the great institutions of a modern democracy – parliament and the police – were effectively being subverted, if not controlled, by Murdoch. And Murdoch was not even a British subject.
In the summer of 2010, Nick Davies told me he was beginning to be seriously worried that the truth might never come out. His revelations about criminality in Murdoch’s News International a year previously had produced no result. He also told me the New York Times had a team in the UK investigating. Apparently, they were very clear about what was going on, but would this make any difference? The evidence was all in Mulcaire’s notes, but these were in the hands of the police with no means of access.
In the meantime, it emerged that Max Clifford, who had said at the Gray’s Inn event that he would never surrender and would fight them on the beaches etc., had settled his phone-hacking claim. He was rumoured to have accepted in the region of £1 million, with the usual absolute confidentiality clause. Thus, News International had managed to close down yet another possible source of information about what they were really doing. Once again they had paid for silence by handing over vastly more money than any possible award of damages for breach of privacy in the courts.
The New York Times published its major article in September 2010, but the police just stuck to their line that there was no new evidence. Despite having all Mulcaire’s notes to hand, and the certainty that something very serious had been going on growing by the day, the Metropolitan Police continued stubbornly to refuse to look at the evidence in their possession.
It was not possible to pursue the matter properly and effectively from Monaco, so I decided to return temporarily to the UK. On 17 September 2010 I moved into a property in London. Having learned just how widespread voicemail interception had become, I used regularly to leave a message on my own voicemail saying: ‘I hope you realise you will go to prison for hacking my phone.’ I thought if they don’t hack me, they won’t hear the message, so it doesn’t matter – but if they do, it will startle them somewhat. Childish fun but it amused me.
On 22 September 2010, in the week following my return to the UK, there was another Gray’s Inn privacy event, this time at Tate Modern. I was impressed to find myself on a panel with Lord Hoffmann, another contemporary from the 1960s, who had recently retired from the Supreme Court. His speech made me realise how big the gap between him and me was when it came to talking about the law. It was a bit like following Jochen Rindt in a Formula Two car all those years before. He discussed the problems of maintaining privacy in the modern world, but explained that we had to if we wanted to live in a civilised society. When it came to my turn, I outlined the absurdity of the way the law currently dealt with privacy and the absolute need for prior notification. There was a very good attendance of lawyers and judges, and I sensed widespread support among the legal profession for what we were trying to do.
A week later, I was invited to speak at a sports law conference at Stamford Bridge, home of Chelsea FC. I was told that Farrers, the News of the World’s solicitors, were present. It was obvious that there was a massive cover-up going on, so I went out of my way to tell the audience that News International were running a criminal enterprise over in Wapping. There was a distinct frisson in the room. The audience consisted almost entirely of lawyers, and they all knew that what I had just said was extremely defamatory. They also knew I was talking about the largest and most aggressive media group in the country.
I went on to explain that, despite the presence of the News of the World’s lawyers, I was in no danger of being sued. The lawyers knew that disclosure in an action for defamation would be fatal to their client. It would reveal that the one-rogue-reporter story, which was still being vigorously peddled, was a lie. Some of the lawyers present were quite taken aback, but I knew I was on firm ground. There would be no writ.
A few days later, on 7 October 2010, I again went out of my way, this time on the BBC’s Question Time, to suggest that Andy Coulson, who had been editor of the News of the World at the time of Mulcaire’s arrest and was now at the heart of government as the prime minister’s press spokesman, should not be in Downing Street and why. It was pleasing that the BBC lawyers let it go.
I had already told Quest I was very anxious to get hold of Mulcaire’s notes about his work for the News of the World. I was also concerned that someone in the Met might decide to destroy the contents of the Mulcaire bin bags. A senior ex-policeman at Quest assured me this would be very difficult for any individual or even for a group within the police to pull off, b
ut it was nevertheless a worry.
Within weeks there was a breakthrough. Later in October, with the help of Quest, I acquired details of what was in Mulcaire’s notes, including the names of three senior employees of the News of the World who had been using him to hack the phones of a great variety of people. Two of the three had even featured in my case, although only one of them (Thurlbeck) had given evidence in person. Clive Goodman, the ‘single rogue reporter’, was not one of the three. I also learned that, on each sheet of his notes, Mulcaire had written the name of the target and also, crucially, in the top left-hand corner, the name of the commissioning journalist. His notes included the names of all the News of the World journalists who had used him directly and this information was already in the hands of the police.
From this it emerged that one particular senior journalist had given the overwhelming majority of the phone-hacking commissions in the period before Mulcaire’s arrest. We now knew his name and, again, it was not Goodman. Unlike Goodman, he had not been charged in the 2006 prosecution. If this information became public, it would expose and fatally undermine the one-rogue-reporter lie that News International had paid out the huge Taylor and Clifford settlements to maintain. It was very reminiscent of the moment I learned of the McLaren emails after they had told the World Council that only one rogue engineer had seen the IP stolen from Ferrari. I felt I had been here before.
We now knew that Mulcaire’s notes contained not only clear evidence that the newspaper’s defence was a lie, but also evidence of extensive criminality by named journalists other than the convicted Goodman. And all the proof was already in the possession of the police, who by now had been sitting on it for four years. All we had to do was somehow force the police to disclose the contents of the Mulcaire bin bags and the entire News of the World cover-up would start to unravel.