Conduct of witnesses before a select committee: Mr Colin Myler, Mr Tom Crone, Mr Les Hinton, and News International Contents


Referral of 22 May 2012

1.On 22 May 2012 the House of Commons ordered that the conclusions set out in chapter eight of the Eleventh Report from the Culture, Media and Sport (CMS) Committee, Session 2010–12, on News International and Phone-Hacking, be referred to the Committee on Standards and Privileges.1 Chapter 8 of the CMS report made allegations that three named individuals and a corporate body had misled that Committee in their evidence during successive inquiries into privacy and phone-hacking. The task of the Committee on Standards and Privileges was to investigate these allegations and report back to the House on its conclusions and recommendations for sanctions if appropriate. Following the division of Standards and Privileges into two Committees in 2013 and the reestablishment of all select committees following the General Election in May 2015, the matter has passed to us for consideration. In this Report, we present our findings to the House.

Commons procedure on privilege matters

2.Parliamentary privilege is defined in Erskine May as

The sum of certain rights enjoyed by each House collectively as a constituent part of the High Court of Parliament; and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals.2

3.These rights include the power to punish for contempt which in its turn is defined by Erskine May as

Actions which, while not breaches of any specific privilege, obstruct or impede [either House] in the performance of its functions, or are offences against its authority or dignity, such as disobedience to its legitimate commands or libels upon itself, its Members or its officers.3

4.Contempt of Parliament may take many different forms and acts or omissions may be treated as contempts even where there is no precedent. The House does not exercise its powers to punish offenders lightly. As Erskine May states, “many acts which might be considered to be contempts are either overlooked by the House or resolved informally”.4 However, allegations of deliberately misleading select committees are clearly within the scope of the definition and have long been regarded as such: “In the past witnesses who have [ … ] prevaricated, given false evidence, wilfully suppressed the truth, or persistently misled a committee have been considered guilty of contempt”.5 The seriousness of the allegations of contempt in this case was recognised by the Management and Standards Committee of News International who told the Standards and Privileges Committee in August 2012 that: “it is a matter of great regret and concern to NI that former employees may have misled a parliamentary committee. Any such misleading conduct would also be obviously wrong and should not have occurred.”6

5.The established process where a committee concludes that it has been misled by a witness is for that committee to make a report to the House. Time is then found for a debate at an early date and, except in rare cases, the House would then decide whether or not to refer the matter to the Committee of Privileges. Only after that Committee has reported will the House consider exercising its penal powers against those held to be in contempt. As the Joint Committee on Parliamentary Privilege argued in its Report in July 2013, this is a safeguard to ensure that complaints of contempt are considered fairly.7 Other safeguards against “frivolous” allegations or complaints are also built into the system, such as the requirement that a Member must have the permission of the Speaker in order to raise a matter of privilege; the restriction of the Committee of Privileges’ power of initiative so that it can inquire only into matters referred to it by the House; and the requirement that decisions to refer a matter to the Committee are taken by the House as a whole.8

6.Once the Committee of Privileges has reported, it is for the House to decide whether it agrees with the conclusions and, separately, on any recommendations as to the sanctions to be imposed. The penalties available to the House in cases of contempt include the power to summon a person to the bar of the House to be reprimanded, to imprison them and to fine them. As the Joint Committee noted, “Well over a century has passed since either House last used its penal powers” to imprison or fine.9 This does not mean that these powers no longer exist but it reflects a reluctance on the part of the House to exercise them. The House resolved in 1978 that its penal jurisdiction should be exercised “(a) as sparingly as possible and (b) only when the House is satisfied that to exercise it is essential in order to provide reasonable protection for the House, its Members or its officers, from such improper obstruction or attempt at or threat of obstruction as is causing, or is likely to cause, substantial interference with the performance of their respective functions”.10

7.The sanction used most recently is that of admonishment which has been applied to Members and non-Members alike. Traditionally, this was delivered by the Speaker in the Chamber during a sitting, with the contemnor at the Bar if a non-Member or standing in his place if a Member. In 1992, however, the House agreed a resolution reprimanding two Members for their part in taking cash for questions, without causing the reprimand to be delivered orally thereafter. Admonishment can therefore take the form of a resolution of the House, without any requirement for the contemnor to appear in person and without any further action taken against that individual.

Process followed in this case

8.The scope of our inquiry on this occasion, as in all other such cases, is defined in the referral made by the House; namely, to examine the case set out in the CMS Committee report and to decide if the Committee’s conclusions in chapter 8 were correct.

9.This is the first major contested case about the truthfulness of evidence given by non-Members to a select committee since 1983 and it is nearly 175 years since a witness was committed to Newgate gaol having been found in contempt for wilfully giving false evidence to a committee.11 The immediate concern of our predecessors upon receiving the referral was therefore to find a process which would meet modern standards of fairness while being proportionate and properly parliamentary. The former Committee discussed its approach over four meetings, and took advice from the Clerk of the House, from the then Attorney General and from its Adviser at that time, Ben Emmerson QC. It also invited submissions from the inquiry subjects and their legal representatives about the procedures it might adopt.

10.On 3 July 2012 the former Committee agreed a Resolution on process (see appendix).12 This set out the context for its work in the light of the House’s 1978 determination to exercise its penal jurisdiction sparingly and stated that “Should the Committee find any of the allegations [ … ] to be proved, the maximum penalty it will recommend the House to impose is admonishment”.13 The Resolution then set out the procedure it would follow, which provided for evidence to be shared, for inquiry subjects to have the opportunity to put evidence to the Committee, and for them to suggest witnesses, and questions to be put to those witnesses. The Committee restated its undoubted right to call witnesses to give oral evidence if it thought fit and set out that it would, in any event, offer inquiry subjects the opportunity to give oral evidence if they wished to do so. Counsel would not be heard because inquiry subjects are expected to speak for themselves, but they had the right to be accompanied by a legal adviser and to consult them as necessary.

11.The Resolution noted that the former Committee would “suspend its inquiry if requested to do so by the Director of Public Prosecutions on the grounds that to continue might prejudice any pending legal proceedings or criminal investigations”. The Committee’s investigation was running at the same time as Operations Weeting and Elveden, the main police investigations into phone-hacking and related matters. On 30 August 2012 Mr Tom Crone, one of the inquiry subjects, was arrested. The Committee consulted the Director of Public Prosecutions (DPP)14, and on 4 September 2012 decided to suspend its inquiry until a charging decision had been made. In making this decision, the Committee also took into account the risk of prejudice to the proceedings in R v Rebekah Brooks and others.

12.R v Rebekah Brooks and others concluded in July 2014 and on 3 October 2014 it was announced that no charges would be brought against Mr Crone. The Committee consulted the DPP and the Crown Prosecution Service (CPS) about the risk that reopening the inquiry might prejudice any further proceedings.15 After reflecting on the advice, and considering representations from Linklaters LLP on behalf of News UK,16 the Committee concluded that, since criminal proceedings against News Group Newspapers were still being considered, it should not reopen the part of the inquiry relating to corporate responsibility. The Committee also considered representations from the legal representatives of Mr Les Hinton and Mr Colin Myler,17 the other individual inquiry subjects, but decided that in the light of the advice given, it was appropriate to reopen the inquiry into Mr Crone and Mr Myler, and part of the inquiry into Mr Hinton. The Committee announced its decisions and the reasoning behind them in a Special Report published on 14 February 2015.18

13.The former Committee made good progress in considering the evidence and reached preliminary conclusions which, where critical of inquiry subjects, were sent to them in the form of draft paragraphs with an invitation to respond, in accordance with the Resolution. However, on 23 March 2015, the Committee announced by way of a Second Special Report that it would not be “possible to conclude the inquiry [at that time] [ … ] in part because of the possibility that any Report might prejudice the course of justice, particularly in relation to proceedings in Scotland where the rules on pre-trial publicity differ from those in England and Wales”.19

14.The Committee of Privileges was reconstituted after the General Election of May 2015 with a new membership. In December 2015 the CPS announced that it would not be proceeding with corporate charges. All other obstacles having been removed, this Committee decided to reopen the inquiry and complete the task inherited from our predecessors. This was the only right course of action in terms of the public interest and of asserting parliamentary privilege.

15.We have received representations that the process has been “drawn out, intermittent and uncertain”.20 All delays have been caused by the express wish not to prejudice legal proceedings. We do not accept the argument that the delay means that too much time has passed to justify taking up the inquiry again or that the events involved are now too long past to be pursued. We believe that it is in the interests of all parties that these matters are brought to a conclusion.

Process followed by our inquiry

16.In January 2016 this Committee reconfirmed the Resolution on process adopted by our predecessors. We reconsidered all evidence gathered to date and requested further documents and submissions as a result of our consideration.21 The evidence before us includes:

a)Oral and written evidence submitted to the CMS Committee in 2007, 2009 and 2011

b)Oral and written evidence submitted to the Leveson inquiry

c)Other publicly available documents

d)Documents released to the Committee by the CPS or Metropolitan Police

e)Written evidence from the inquiry subjects or their legal representatives.

17.The key questions for this Committee in considering the allegations were:

i)Was the named witness as truthful or candid as Parliament had a right to expect?

ii)If not, was there a contempt arising from that failure to be truthful and candid?

We then considered:

a)Whether the failure was included within the conclusions of the CMS Committee in chapter 8; and

b)What, if any, recommendations we wish to make to the House, in accordance with the Resolution on procedure.

18.The following questions have been applied by us to the evidence we have received:

a)What question was the witness asked?

b)What was the reply?

c)What is the context of the reply:

i)Are there contemporary documents supporting or not supporting the reply?

ii)To which period of time does the reply relate?

iii)Is the witness relying upon information provided by a person who has since the CMS evidence sessions and Report been convicted of phone hacking related offences?

iv)Does the written evidence submitted on their behalf to our Committee raise any points in opposition, or suggest an alternative reading?

v)Overall, what inference can be drawn from the reply?

19.Our predecessor Committee wrote to each of the inquiry subjects, explaining the totality of the evidence it would be considering in relation to them, and setting out detailed preliminary inferences and the particular pieces of evidence from which those inferences were drawn. The Committee did this in order to provide the inquiry subjects with a clear statement of the allegations made against them (although these were already set out in chapter 8 of the CMS Report), and to allow them to prepare any detailed rebuttal and submissions they wished to make. This was not prejudging the allegations but ensuring that the inquiry subjects were clear about the allegations, in the same way as would be done in any other decision-making forum, be that a court or a disciplinary tribunal.

20.This correspondence was drawn upon by us and we also wrote to the inquiry subjects with further questions based on new evidence which had become available. We were also able to take up the allegations of corporate responsibility for the first time and proceed with those allegations in a similar way. Once we had received and considered submissions from the inquiry subjects, we sent them passages of the draft Report containing detailed criticisms, providing a further opportunity for them to make corrections or offer information. These responses were fully considered in finalising our Report.

21.For the avoidance of doubt, we wish to state that the draft conclusions prepared by our predecessor committee have not been used to guide our own decisions. We have instead reviewed all evidence from the start and reached our own conclusions on each of the allegations. We also wish to underline that we have not looked into the wider conclusions reached by the CMS Committee or dealt with other issues in that Committee’s Report. In particular, we have not been concerned with establishing the facts surrounding the phone-hacking saga. Our sole focus is, and has been throughout this inquiry, on whether the named witnesses deliberately misled the CMS Committee in their evidence to its inquiries as alleged in chapter 8 of the Committee’s Report.

Our Report

22.The chapters of our Report relating to the inquiry subjects follow a pattern to help those seeking to understand how we have reached our conclusions. For each allegation we set out:

a)The allegations

b)Relevant evidence before the CMS Committee and the date

c)Oral evidence from the inquiry subject to the CMS Committee

d)Written evidence from the inquiry subject to the CMS Committee

e)New evidence before this Committee

f)Responses provided by the inquiry subjects to this Committee

g)Our conclusions

23.Relevant correspondence with the inquiry subjects and their legal representatives and the evidence relating to our questions and preliminary inferences is published alongside the Report. We have made some redactions, for example to protect the privacy of victims of phone-hacking.

Cooperation from inquiry subjects

24.Throughout this inquiry we have sought to ensure that the inquiry subjects had every opportunity to put their point of view. On a number of occasions, we have extended deadlines and we have repeatedly offered them the opportunity of giving oral evidence or of suggesting lines of inquiry. None has chosen to take up the option of appearing before us in person.

25.In three cases, the inquiry subjects were represented by firms of solicitors and in these cases direct responses from those most closely concerned have been limited. Much of the correspondence from certain of the legal representatives could fairly be characterised as aggressive, with a strong focus on procedural objections. As discussed in the next chapter of this Report, in some cases much effort was spent on questioning the jurisdiction of the House of Commons or this Committee over matters relating to parliamentary privilege and the procedures we had adopted, with objections often based on the misleading premise that the Commons should follow court procedure, familiar to legal experts but inappropriate for parliamentary committees.

26.Although two of those legal representatives concerned have provided information helpful to our inquiry, for which we are grateful, one failed to offer any substantial response to the allegations. It is notable that Mr Crone, the one inquiry subject with whom we dealt directly, cooperated with us to a far higher degree and we commend him for this. It is of course open to inquiry subjects to take legal advice and we have consented to channel our correspondence with those involved through third parties in this way, but it is unfortunate that the legal advice accepted or instruction given was not to engage and co-operate with us fully.

27.One of the many unusual aspects of this case is that it concerns the actions of those who work in the press being scrutinised by those the press normally scrutinises. That is as true of the CMS inquiries as of our own. It is understandable that the process may have felt uncomfortable to some at times but as we discuss further in the following chapter, we have striven to make it as fair and as transparent as possible.

1 House of Commons Votes & Proceedings 22 May 2012. References throughout to News International and Phone-hacking, Eleventh Report from the Culture, Media and Sport Committee, Session 2010–12, HC 903 (CMS 2012 Report)

2 Erskine May (24th edition, 2011) p203

3 Erskine May (24th edition, 2011) p203

4 Erskine May (24th edition, 2011) p251

5 Erskine May (24th edition, 2011) pp252–53

6 Linklaters to the Committee on Standards and Privileges (CSP), 14 August 2012

10 Resolution of the House, 6 February 1978, CJ (234) 170

11 First Report from the Committee of Privileges, Session 1982–83, HC336; CJ (1842), 198, 206

12 An unfortunate administrative error led to the inquiry subjects and their legal representatives receiving a copy of the resolution misdated 12 June 2012. We are happy to confirm that the resolution was agreed on 3 July 2012 and we are sorry for any confusion caused. It would be entirely mistaken for any party to draw any inference from this dating error.

14 CSP to the Director of Public Prosecutions, 5 September 2012; DPP to the CSP, 10 September 2012

15 Committee of Privileges (CoP) to the DPP, 21 October 2014; DPP to CoP, 26 November 2014

16 Linklaters to CoP, 22 December 2014

17 Simmons & Simmons to CoP, 29 Jan and 4 Feb 2015; Morrison Foerster to CoP, 26 Jan 2015

20 Simmons & Simmons to CoP, 8 April 2016

21 Evidence gathered before the Dissolution of the House in March 2015 was reported to the House on 26 March 2015 but not published.

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13 September 2016