278.The CMS Committee concluded that NOTW and NI were corporately liable for misleading them. In examining this conclusion we have considered the question of attribution of liability to a company arising from evidence given to a select committee by individual employees or directors. In answering this question we have looked to identify the individual who could be said to be a controlling mind such that their written or oral evidence could fairly be said to be on behalf of and bind the company. This is not a strict application of the criminal or civil law.
279.It was not clear to us from reading the 2012 Report whether the CMS Committee had considered the question of attribution. In particular, it was unclear why the CMS Committee chose to focus on the parent company NI, as opposed to NGN, the company which published NOTW, or upon NOTW itself, which was not a legal entity. The three individuals named by the Committee (Les Hinton, Tom Crone, Colin Myler) were not authorised, and nor did they claim, to be speaking on behalf of NI in 2009. Linklaters made this point forcefully on behalf of NI:
The CMSSC consistently failed to grasp, from the outset, the fundamental principle that a corporate body can neither give evidence nor can it mislead other than through the actions of individuals possessing the necessary authority. [ … ] None of the individuals criticised by the Committee were authorised to give evidence on behalf of NI, either in their capacity as employee or as former employees.
280.We have concluded that the key evidence on the question of corporate liability is that of whichever of Les Hinton, James Murdoch or Rebekah Brooks was the Chief Executive (or equivalent title) at the time of providing oral or written evidence, or, in relation to James Murdoch, where it is admitted by NI that his evidence was on its behalf. Evidence given before or after holding the post of Chief Executive might be persuasive, but cannot bind nor be attributed to NI.
281.We use the term Chief Executive as a generic term throughout this Report, although we note that different titles applied to this post within NI at different times:
Corporately, the News of the World and News International misled the Committee about the true nature and extent of the internal investigations they professed to have carried out in relation to phone hacking; by making statements they would have known were not fully truthful; and by failing to disclose documents which would have helped expose the truth. Their instinct throughout, until it was too late, was to cover up rather than seek out wrongdoing and discipline the perpetrators, as they also professed they would do after the criminal convictions. In failing to investigate properly, and by ignoring evidence of widespread wrongdoing, News International and its parent News Corporation exhibited wilful blindness, for which the companies’ directors—including Rupert Murdoch and James Murdoch—should ultimately be prepared to take responsibility (see paragraphs 32, 33, 60, 62, 132 and 141).
32. Despite the professed willingness of witnesses from News International to assist the Committee, the company has continued to downplay the involvement of its employees in phone-hacking by failing to release to the Committee documents that would have helped to expose the truth.
33. Other inquiries also faced similar problems with News International’s ‘aggressive defence’. Despite the ‘co-operation’ it subsequently professed to have extended to the Metropolitan Police, our 2010 Report documented the reality of its approach—which was described in evidence to us by one of the chief investigating officers as ‘robust’. Senior Metropolitan Police officers have since then been less circumspect—to us, the Home Affairs Select Committee and the Leveson inquiry as to how, far from co-operating, the News of the World deliberately tried to thwart the police investigation.
60. News International repeatedly made misleading and exaggerated claims regarding the ‘investigations’ it had purportedly commissioned following the arrests of Clive Goodman and Glenn Mulcaire. As with the Harbottle & Lewis review, this conclusion applies similarly to the earlier engagement of solicitors Burton Copeland in August, 2006. On 30 August 2011, Burton Copeland wrote to the Committee, clarifying that their role was to respond to requests for information from the Metropolitan Police. ‘BCL was not instructed to carry out an investigation into ‘phone hacking’ at the News of the World,’’ the firm wrote. Prior to that, on 22 July 2011, Linklaters—the solicitors acting for News Corporation’s Management and Standards Committee—also wrote to disown evidence given by Colin Myler and Tom Crone in 2009 that Burton Copeland undertook an investigation into wrongdoing at the paper. Throughout this affair, senior News of the World and News International executives have tried to have it both ways. They have been quick to point to ‘investigations’ which supposedly cleared the newspaper of wider wrongdoing, but have also distanced themselves from the detail when it suited them.
62. Senior executives at News International undoubtedly extolled the thoroughness of the reviews rather too fervently. It was certainly expedient for them to rely upon the apparently positive outcomes of the reviews in giving evidence to the Committee. Senior executives were clearly aware that the reviews proved less than they were claiming for them and that the assertions that they made to the Committee were the result of a deliberate strategy to exaggerate evidence in support of the company’s innocence.
132. The dates of the meetings between Tom Crone and Neville Thurlbeck strongly suggest that disciplinary action against Neville Thurlbeck was only considered when it became apparent that the contents of the ‘for Neville’ e-mail would become public knowledge. This is also hardly the approach of a company concerned to search out any wrongdoing and discipline the perpetrators.
141. It is clear, furthermore, from Tom Crone’s briefing to Colin Myler and from Michael Silverleaf QC’s opinion that the impetus to settle the Taylor affair was not simply to cover up the extent of phone-hacking at the newspaper, but was also driven by the bad publicity that would result from public disclosure of illegal activity by journalists at the News of the World that had been uncovered by the Information Commissioner during Operation Motorman. Again this imperative suggests the approach of the company was to cover up wrongdoing, rather than take disciplinary action to prevent it happening.
282.In summary, the sting of the CMS Committee conclusions is that NI:
a)Misled the CMS Committee about the true nature and extent of internal investigations;
b)Knowingly made statements that were not fully truthful;
c)Failed to disclose documents to the CMS Committee;
d)Covered-up rather than seeking out wrongdoing and disciplining perpetrators.
We first consider the conclusions which relate to the police investigation and Neville Thurlbeck.
Corporate structure of News Corporation before the closure of the News of the World on July 2011
283.For two of the paragraphs referenced by the Chapter 8 conclusion, in light of information that has been made public after the CMS Committee’s 2012 Report was published, we found it unnecessary to make any finding, or no allegation of contempt could be made out:
a)Paragraph 33—that News of the World deliberately tried to thwart the police investigation; and
b)Paragraph 132—the taking of disciplinary action against Neville Thurlbeck (Chief Reporter, NOTW).
284.In relation to the police investigation, this was considered extensively within the Leveson Inquiry and Report; we have nothing to add to Lord Justice Leveson’s conclusions. We are able to make our decision on the main Chapter 8 conclusion without relying upon paragraph 33. For these reasons we have not pursued our own line of inquiry.
285.As to Neville Thurlbeck, given that he pleaded guilty to phone hacking, and we know that in July 2009 he confessed to Colin Myler and Tom Crone that he had been involved in phone-hacking in 2004, there were clear grounds for disciplinary procedures to be undertaken. In addition it is unclear if his employer was NI or rather more likely NGN. His written evidence to the CMS Committee for its 2012 Report cannot be relied upon.
286.As explained at the start of our Report, when the matter of privilege was referred to us, the CPS were considering whether to bring charges against NGN (not NI) for corporate liability in relation to phone hacking. The CPS concluded in December 2015 that there was insufficient evidence to do so. The CPS acknowledged that corporate liability could not be attributed to the company through the actions of Andy Coulson because he was not a controlling mind of the company and “there is no evidence to suggest that any member of the Board of NGN had knowledge of phone hacking when it was taking place”. On the separate matter of whether the company acted to pervert the course of justice, the CPS looked at three areas: the original police investigation into phone hacking in 2006, the civil settlements, and the email deletion policy of the company. In each case there was either no evidence to suggest actions were taken to pervert the course of justice or the actions themselves could not be considered to be such as could pervert the course of justice.
287.The CMS Committee drew its conclusions in relation to NI and NOTW, not NGN; nonetheless, we have taken into account the CPS decision and in particular its statement that “there is no evidence to suggest that any member of the Board of NGN had knowledge of phone hacking when it was taking place”.
288.As set out in relation to the three individual inquiry subjects, for the 2010 Report the CMS Committee had the “For Neville” email and February 2005 Contract before them and the letter of 29 May 2007 from Harbottle and Lewis concluding the external email review, which was requested by Les Hinton, and relied upon in evidence by NI:
Re Clive Goodman
We have on your instructions reviewed the emails to which you have provided access from the accounts of: Andy Coulson; Stuart Kuttner; Ian Edmondson; Clive Goodman; Neil Wallis; Jules Stenson
I can confirm that we did not find anything in those emails which appeared to us to be reasonable evidence that Clive Goodman’s illegal actions were known about and supported by both or either of Andy Coulson, the Editor, and Neil Wallis, the Deputy Editor, and/or that Ian Edmondson, the News Editor, and others were carrying out similar illegal procedures.
289.In relation to the Clive Goodman employment settlement, Les Hinton was the author of the letter of 5 February 2007 dismissing Clive Goodman, and he saw Clive Goodman’s appeal letters which stated that others were involved or aware of phone-hacking, and which formed the basis for the internal Daniel Cloke / Jon Chapman and then Harbottle and Lewis email reviews.
290.In relation to the Gordon Taylor settlement, as previously discussed Tom Crone had drafted a memo dated 24 May 2008, but this was drafted for and sent to Colin Myler, and not to James Murdoch. Nor did James Murdoch receive a copy of the Silverleaf Opinion and what he was told about it is disputed.
291.There are emails from Colin Myler to James Murdoch (and replies), forwarding Tom Crone emails; however, it is unclear whether James Murdoch actually read the contents of the emails lower in the email chain—the CMS Committee appears to have concluded that he did not. The chain of emails included an email from Tom Crone to Colin Myler setting out the “nightmare scenario” of a claim from another party to Gordon Taylor’s voicemails. But there is no express statement within the emails that the commission of or instruction to commit phone-hacking extended beyond Clive Goodman and Glenn Mulcaire. The content is closer to what we understand to have been NGN’s Amended Defence to the action, namely that the “For Neville” email showed that the results or product of phone-hacking passed through the NOTW newsroom (not that individuals in the newsroom had been committing hacking).
292.Les Hinton gave evidence to the CMS Committee as Chief Executive of News International on 6 March 2007. He was not criticised by the CMS Committee for this evidence.
Q95 Chairman: You carried out a full, rigorous internal inquiry, and you are absolutely convinced that Clive Goodman was the only person who knew what was going on?
Mr Hinton: Yes, we have and I believe he was the only person, but that investigation, under the new editor, continues.
293.Clive Goodman’s letter appealing his dismissal had been sent by First Class post, addressed to Stuart Kuttner at the offices of the newspaper but copied to Les Hinton and franked by the Royal Mail on Friday 2 March 2007, before the evidence session on Tuesday 6 March 2007. There is no evidence that the letter reached Les Hinton in advance of the evidence session.
294.By the time of his next oral evidence session on 15 September 2009, Mr Hinton was no longer in post as Chief Executive of News International, having moved to take up a post at Dow Jones & Co (another News Corporation, but not News International, company).
295.At the time of providing evidence for the CMS Committee’s 2012 Report on 19 July and 10 November 2011, James Murdoch was no longer Chief Executive of News International, having taken up a post as Deputy Chief Operating Officer and Chairman and CEO, International, News Corporation. Nonetheless, in their letter to us of April 2016, Linklaters stated that “Mr James Murdoch gave evidence on behalf of NI in July 2011”. We note that the CMS Committee’s conclusions in Chapter 8 are arguably tied (by para 276) to the Committee’s being misled by the evidence provided in 2009 for the 2010 Report, for which James Murdoch did not provide evidence.
296.James Murdoch’s oral and written evidence to the CMS Committee for the 2012 Report and his oral and written evidence to the Leveson Inquiry tell a consistent story:
a)He did not know about, nor did he try to hide, wrongdoing;
b)When he started in the post he understood that the matter of phone hacking was concluded. He was only aware of the voicemail interception issue because it had been reported publicly. He did not follow the details of the arrests in August 2006 or the subsequent court proceedings, and his understanding when he took over as Chief Executive in December 2007 “was that this was a historic, isolated issue that had resulted in two people going to jail, and the editor at the time resigning. I had no reason to believe it was anything other than a settled matter as a result of the prosecutions and one from which the company had moved on, having put a new editor at the helm.”
c)His first direct involvement was the Gordon Taylor settlement in summer 2008. Had the earlier settlement offers (put forward without his knowledge) been accepted, then he did not believe that he would have been told about the claim at all. The only substantive meeting on the Gordon Taylor case was on 10 June 2008 in his office with Colin Myler and Tom Crone, at which he was asked to agree to increase the offer.
d)Prior to that 10 June 2008 meeting, there is an email dated 27 May 2008 in which his PA notified him that Colin Myler wished to speak to him that day. There is also a file note made by Julian Pike, Partner at the solicitors’ firm Farrer & Co, which records a telephone call that Julian Pike had with Colin Myler on 27 May 2008, in which Mr Pike records Mr Myler mentioning having spoken to James Murdoch about the Taylor litigation. The note included the following words: “Les no longer here—James wld say get rid of them—cut out cancer” [sic]. James Murdoch interprets this as meaning that “had I been given a full picture of the facts I would have insisted that people suspected of wrongdoing were held accountable (Q1519). I believe this may be why I was given a narrower set of facts than I should have been given at the 10 June 2008 meeting.”
297.James Murdoch said that he was not shown the “For Neville” email, and this is consistent with Tom Crone’s evidence that there was a confidentiality agreement in place that restricted access to the document. James Murdoch understood from the meeting with Tom Crone and Colin Myler (10 June 2008) that the “For Neville” email related to the non-Royal charges brought against Glenn Mulcaire and that this was the first time evidence had been produced linking those activities to NOTW—not that the email meant that more than one journalist was involved in phone-hacking.
298.James Murdoch knew the Silverleaf Opinion had been obtained, but never saw the opinion and “nor, most importantly, was I aware of Mr Silverleaf QC’s comments about widespread wrongdoing. As far as I was aware, Mr Silverleaf QC had only been asked to opine on the question of damages. Had Messrs Crone or Myler told me what the opinion said in detail, I would have acted differently.”
299.Rebekah Brooks provided written evidence as Chief Executive for the 2010 Report on the Clive Goodman and Glenn Mulcaire settlements, including the reasons based on employment law for settling the claims, the settlement figures and who authorised the payments; but she did not reveal the first £90k gratuitous payment to Clive Goodman. Her letter enclosed the Harbottle and Lewis letter of 29 May 2007 regarding the email review.
300.In her second piece of written evidence, Rebekah Brooks answered questions put by the CMS Committee:
5. Are you aware of any other payments made to Clive Goodman as part of an understanding that he maintains his silence over his involvement with the Mulcaire episode?
It was, I hope, made very clear to you, in my letter to you of 4 November, that the payment made to Mr Goodman following his trial and imprisonment (the only such payment) was a bona fide settlement of an employment-related claim, brokered between lawyers, and was not “part of an understanding that he maintains his silence over his involvement with the Mulcaire episode”.
[ … ]
7. When did they know that the police had evidence that more people were hacked?
I assume by “hacked” that you mean interception of voicemail messages.
I understand that, at some stage between the arrests of Mr Mulcaire and Mr Goodman on 8 August 2006, and their first appearance in court on 29 November 2006, it became known, from information provided by the police, that Mr Mulcaire had accessed the voicemails of people other than Royal Household employees. It was not known how many.
301.We asked NI about Question 5 and payments for silence. Their response was that “there is no evidence that Mrs Brooks was aware of any payments being made for that purpose; Mrs Brooks was acquitted on charges to which this was a relevant issue.”
302.Ahead of providing written evidence for the 2010 Report, the Chair of the CMS Committee wrote to Rebekah Brooks on 9 July 2009, to ask her to submit evidence on the truth of allegations that “illegal phone tapping was in fact a widespread practice, and that News International has settled cases amounting to £1m to prevent this from becoming public knowledge.” Rebekah Brooks responded that Colin Myler was the appropriate witness “to refute allegations that illegal phone tapping was a widespread practice at the paper.” She suggested that the Guardian coverage had “substantially and likely deliberately misled the British public”. Linklaters told us that:
17.1 The evidence provided by Mrs Brooks in 2009 was not the subject of criticism by the CMSSC and is therefore beyond the remit of the Committee.
17.2 Mrs Brooks’ letter did suggest that the Guardian coverage had been misleading; this reflected Mrs Brooks’ genuinely held views in light of what she then knew and as made clear by her when she gave evidence to the CMSSC on 19 July 2011 and later reflected in the outcome of her eight month criminal trial.
303.In relation to the 2012 Report, Rebekah Brooks was arrested two days before the oral evidence session on 19 July 2011. As such she was unable to provide full answers to any matters that might stray into areas under criminal investigation. Equally, her evidence to the Leveson Inquiry was similarly constrained. She had resigned as Chief Executive on 15 July 2011 and as such her answers cannot be said to be on behalf of News International. There are therefore no particular matters arising from her oral evidence in 2011.
304.She did provide written evidence for the 2012 Report, some before she was arrested; however, there is little of relevance. The main information in relation to Rebekah Brooks comes from information disclosed to us by the CPS: transcript details from her trial, the witness statement of Colin Myler regarding Neville Thurlbeck, and various emails as set out below.
305.The Management and Standards Committee was set up by News International as part of the re-investigation of phone-hacking by the company, Police and Leveson Inquiry. Linklaters, acting on behalf of the Management and Standards Committee, submitted a number of pieces of written evidence to the CMS Committee, none of which raise matters of relevance to our inquiry.
306.In terms of other employees and their thoughts on what senior executives at NI and News Corporation knew, Jon Chapman told the CMS Committee in 2011 that in relation to the 2007 email review:
None of them had any first-hand knowledge of that. Mr Murdoch junior and senior were out of the country, and had not taken on executive obligations then—in Mr James Murdoch’s case—and Rebekah Brooks was still editor then. In order for them to be able to comment in any way on what happened in 2007, they would be reliant on briefings from others, and I believe those briefings were incorrect.
Q708 Jim Sheridan: You say they had no direct knowledge of what was going on. Did they have any indirect knowledge of what was going on?
Jonathan Chapman: I suspect not much.
Q709 Jim Sheridan: Is that a yes or a no?
Jonathan Chapman: Probably not.
307.Colin Myler provided a statement to the Metropolitan Police in which he told them that on 11 July 2009 Neville Thurlbeck had confessed to him and Tom Crone that he had hacked into David Blunkett’s phone in 2004. Colin Myler and Tom Crone reported this to Rebekah Brooks (who had been announced as the new Chief Executive, to take over in September 2009, but who was already acting as Chief Executive during the transition period).
308.Linklaters’s response when shown this statement by us did not address Rebekah Brooks’ role as Chief Executive in any great detail. They stated:
This question focuses on Mr Myler’s Witness Statement dated 21 December 2011 and given to the police, though never served nor relied upon in any prosecution. On 5 May 2011 and 21 July 2009, when Mr Myler gave oral evidence to the CMSSC, he did not give any evidence in relation to the matters which are the subject of this question. The contents of his witness statement to the police are surprising in the light of the evidence that he provided to the CMSSC on 21 July 2009 at Ev 314, which was given in the presence of Mr Crone, who is also alleged in Mr Myler’s statement to have been made aware of these matters. This is particularly so in the context of the passage on page 3 of 4 of Mr Myler’s statement “ … …that if I were asked about my knowledge, I would not lie … ”. It would be a serious misjudgement for the Committee to rely upon the contents of this statement having regard to the fact that it is likely that the MPS and the CPS had good reason not to rely upon its contents, notwithstanding that on its face it was capable of providing evidence against Mrs Brooks and Mr Kuttner at their trial, which was not to commence until October 2013. One good reason would be an appreciation of the evidence that Mr Myler had given to the CMSSC in 2011. In the event, the statement has never been tested in evidence. The Committee is reminded that Mr Crone has not been prosecuted for any offence and that Mr Kuttner was acquitted.
[ … ]
14.3 Since these are not events explored by the CMSSC and in any event, this was not evidence given on behalf of NI, the CMSSC cannot have been misled by NI in relation to the matters covered in Mr Myler’s Witness Statement.
309.In December 2006 Tom Crone drafted a Memorandum setting out the position at that point in relation to the then forthcoming sentencing hearing for Goodman and Mulcaire and potential civil claims arising from that case. We know that Andy Coulson saw a copy of the draft Memo. We have not seen any evidence to confirm that it was sent on to Les Hinton (as suggested by Andy Coulson and as per the emails accompanying the draft version)—Tom Crone has refused on grounds of legal professional privilege to answer that point, and Les Hinton has no recollection of having been sent, having received or having read the December 2006 Memo.
310.We asked the CPS whether there was any evidence that this Memo had been received by Les Hinton (as Chief Executive), but whilst we received some information, there was nothing to confirm that he received this document.
311.This meeting was attended by Rebekah Brooks, Jon Chapman, Colin Myler, Tom Crone, two others from NI, and two lawyers from Farrer & Co (Julian Pike and another) to discuss the Max Clifford civil claim. The note of the meeting includes the following lines and relates to the CMS Committee’s 2010 Report (which was to be published in February 2010):
a)“JC said that although RB is no longer required to give evidence at the Select Committee, the trade off is written questions that she will have to respond to in writing. This is a good result because they can construct the answers in a way that is beneficial to themselves.”
b)Max Clifford had applied to the Court for an order that Glenn Mulcaire name names—there was, as yet, no direct link from Mulcaire to NOTW as there had been in the Gordon Taylor matter (i.e. “For Neville” email and the 2005 Contract).
c)In relation to Rebekah Brooks’ discussions with Max Clifford, upon being called to give evidence to the CMS Committee: “She said she could not continue the discussion because although the News of the World case is not with RB and totally above board she did not think she could be seen to be doing business with him. She said she would get back to him after the Select Committee. This conversation would have been about 4 January. When R.B found out that she was not going to give evidence at the Select Committee her view was that things could change.”
d)In relation to the Gordon Taylor claim: “Ultimately Taylor got what he wanted because of the blackmail factor. Here there is no question of confidentiality.”
e)“There were concerns that if Glenn Mulcaire was forced to give evidence, others might be named. We simply do not know. [ … ] You have to think about what is worse—her doing a deal with Max which will be perceived as a cover up or indemnifying Mulcaire so that he doesn’t say anything about NGN. He could say anything and he could say anybody. JC said it would certainly be difficult to prove that he was just making up names … “
f)“JCP said that the only way that the Mulcaire situation would not be a problem is if he said “I do not recall” but that is not the impression JCP has had from Mulcaire’s solicitors. It may not go our way.”
g)“JC said that the irritating thing is timing: If the Select Committee was going to do its report now then fine but this is hanging over us and we have been told that it’s 50/50 of the Order being made; The risk is Mulcaire being forced to disclose names.”
We set out NI’s response below.
312.We have also examined emails between Rebekah Brooks and senior figures at News Corporation and its publications.
a)Frederic Michel (Director Public Affairs, Europe, News Corporation) to Rebekah Brooks, 3 February 2010—“Mulcaire’s barrister made today in Court an admission that if Mulcaire had had to plead a defence (he admitted liability instead) he would have pleaded that the information obtained from Clifford’s phone would have been passed to the NoW … ”
b)Rebekah Brooks to Martin Ivens (Deputy Editor, Sunday Times), 20 February 2010—asking for a favour including the line, “Another legal would be a nightmare right now three days before the select committee!!”
c)Matthew Anderson (Group Director: Strategy & Corporate Affairs, Europe & Asia, News Corporation) to Rebekah Brooks, 16 December 2010—“We have spent months moving from Rogue Reporter to Zero Tolerance. With some success.”
313.In response to these emails and the 20 January 2010 Attendance Note, Linklaters told us:
15.2 These criticisms are unfounded and unfair. [ … ]
15.3 As to the specific documents to which the Committee has referred, none of them—either individually or collectively—provide any foundation for a conclusion that the company was intentionally trying to prevent relevant matters being investigated and/or disclosed:
15.3.1 The attendance note of 20 January 2010 was compiled by Farrer & Co and provided voluntarily by NGN (even though it could have declined to provide it on the basis that it is privileged). The advice that is recorded that it would be preferable for Mrs Brooks to give written answers to the CMSSC rather than attending in person is no more than a statement of the advice that lawyers might give to potential witnesses.
15.3.2 When Mrs Brooks wrote the email to Mr Martin Ivens dated 20 February 2010 she was doing no more than pointing out the obvious: it would be unhelpful were there to be a further claim from Mr Max Clifford (which was related to a story about the MMR vaccine and therefore entirely unrelated) at a time when the company was attempting to settle an earlier claim brought by him and the CMSSC was due to publish its report.
15.3.3 The email from Mr Frederic Michel to Mrs Brooks dated 3 February 2010 simply reports what Mr Mulcaire’s barrister had said publicly in open Court and gives Mr Michel’s reflection on the consequences of an admission by Mr Mulcaire.
15.3.4 In the email from Mrs Brooks to Mr Matthew Anderson (dated 16 December 2010 rather than 13 December as per the Committee’s letter) she asks whether “Ian written in the corner is evidence that it is IE and that he is guilty.” Mr Anderson responds that he does not believe that Mr Edmondson is guilty but recognises that the allegation will be made. This issue was being discussed in the context of the suspension of Mr Edmondson, which happened four days after this email exchange.
15.3.5 The Committee asks about the change from “Rogue Reporter” to “Zero Tolerance” referred to in some of the documents. There is nothing sinister in this. For the reasons already explained, it became clear to the company, as more information emerged over time, that the instances of voicemail interception, or knowledge of them, were not as confined as had once been believed. The company’s reaction to the underlying events adapted accordingly.
314.As to the allegation of a cover-up in relation to the settlement of the Clive Goodman employment claims, Linklaters pointed to the history of the matter, concluding:
10.19.3 Airing any dispute in public has implications for the reputation of a company and this is a standard consideration for any litigant, a point which the CMSSC itself acknowledged. This is the case even if—perhaps particularly if—the allegations are thought to be unfounded based on what was known at the time. A desire to limit reputational damage formed part of NGN’s thinking at the time of the settlement with Mr Goodman. But this is far from a conclusion that this factor was the only element in NGN’s decision-making, still less the determinative one. The expression “cover up” is a pejorative term which is not appropriate to describe the decision making process adopted by the company here.
[ … ]
10.21 Accordingly, it is clear that, far from seeking to cover up any allegations relating to the unlawful interception of voicemails, Mr Hinton took active steps to ascertain whether there was truth in the allegations made by Mr Goodman. Had Mr Hinton known that the allegations were true, it is inconceivable that he would have dismissed Mr Goodman or ordered any review (whether independent or otherwise) to be conducted, as either course would have risked his own exposure.
10.22 In those circumstances it would be wholly inconsistent with the known facts for an inference to be drawn that, by seeking to settle Mr Goodman’s employment claims, individuals employed by NI sought to cover up more widespread involvement in the unlawful interception of voicemails at the News of the World.
315.The CMS Committee concluded that NI had failed to disclose documents “which would have helped expose the truth.” It appears from paragraphs 30 to 32 of the 2012 Report that the Committee had in mind a failure to release documents to itself:
30. [ … ] It is true that News International has cooperated more fully with our current investigation than it did with our inquiry in 2009, although the standard was hardly very high at that time. We note for example, the willingness of the newly-established Management and Standards Committee to provide the Committee with unsolicited copies of recently unearthed e-mail exchanges that are of relevance to the events under investigation.
31. The most significant evidence received by the Committee—we note in particular Clive Goodman’s letter appealing his dismissal; Tom Crone’s memorandum of May 2008; and Michael Silverleaf QC’s opinion on the Gordon Taylor case—has, however, been provided by other witnesses. Unlike the recently unearthed e-mails, these documents have been in the company’s possession all along. At no point did the company itself provide them or refer to them, either in 2009 or in 2011. [ … ]
316.It is not clear from the written evidence that the CMS Committee made any request in 2009 such that it would have been directly misleading of News International not to disclose or partially/selectively disclose documents to the Committee. Requests made during oral evidence sessions do appear to have been complied with. Given that there would have been hundreds of potentially disclosable documents, it would have been unreasonable to expect disclosure from NI without the CMS Committee setting any parameters as to the type of document they wished to see produced.
317.The CMS Committee appears to focus on three documents, but all three were in fact supplied by NI or its solicitors:
a)Clive Goodman’s letter appealing his dismissal—supplied by James Murdoch on 11 August 2011;
b)Tom Crone’s Memorandum of May 2008—supplied by Farrer & Co on 31 October 2011; and
c)Michael Silverleaf QC’s opinion—supplied by Farrer & Co on 31 October 2011.
318.The likely existence of all three documents was clear from the evidence given by witnesses in 2009, but the CMS Committee made no request for copies at that time. The fact of an appeal letter from Clive Goodman existing was obvious from the fact of an appeal having taken place and receipt of an unredacted copy of the 29 May 2007 Harbottle and Lewis letter on the email review which named the names in Clive Goodman’s appeal letter. As to the other two documents, it was known that internal and external legal advice on the Gordon Taylor settlement had been provided, but we are not aware of any documents being sought.
319.In coming to our conclusion on corporate liability we have taken into account the following points:
a)The question of attribution of liability and who, at any time, had authority to speak on behalf of NI, and the extent to which the CMS Committee took this into account, if at all;
b)Some of the conclusions drawn in the paragraphs to which the Chapter 8 conclusion makes reference do not have evidence to support them, such as the allegation of a failure to disclose documents and the conclusion relating to the disciplinary procedures against Neville Thurlbeck;
c)The fact that Rebekah Brooks was under arrest at the time of the 2011 evidence session, so was not in a position to explain any evidence she had given as Chief Executive as part of the 2010 Report;
d)The extra evidence disclosed to us by the CPS does not provide much, or sufficient support, to the the CMS Committee’s Chapter 8 conclusion;
e)The acquittal at NI level of Rebekah Brooks, at NGN Ltd level the decision not to charge Tom Crone, and at NOTW level the acquittals of Stuart Kuttner (Managing Editor) and Neil Wallis (Deputy Editor);
f)The CPS decision not to bring corporate liability proceedings against NGN Ltd because “there is no evidence to suggest that any member of the Board of NGN had knowledge of phone hacking when it was taking place”, and there was either no evidence to suggest actions were taken to pervert the course of justice or the actions themselves could not be considered to be such as could pervert the course of justice.
g)The issue of cover-up was also considered by the Solicitors Disciplinary Tribunal, and the allegation that Jon Chapman (not a Chief Executive, nor able to bind NI, but nonetheless a senior NI employee) was involved in a deliberate cover-up was “firmly rejected”. NI point to the failure of Lawrence Abramson in completing the email review (as authorised by Les Hinton) as a further reason outside of their control as to why the truth did not come out more quickly.
320.Finally, we considered the questions that we would need to answer, if we wanted to draw conclusions in relation to News International. Those questions are all about the events themselves (for example, who did or was told what and when, was there a cover-up and if so who was involved), rather than what the CMS Committee was told, and as such, are not relevant to our inquiry.
321.A finding of contempt is not a finding as to whether the CMS Committee were entitled to accept evidence given to them as proof or indication that the acts or omissions of any individual, or here, corporate body, are good or bad. Contempt is about something very specific—in this context the giving of false evidence, wilful suppression of the truth, or persistently misleading a committee. The CMS Committee were entitled to find that NI were trying to put the best possible gloss on their evidence, which, as the Record of Attendance from 20 January 2010 shows, they were certainly trying to do; but that is not contempt.
322.The history of this matter, including the decisions, actions and omissions of NI, its subsidiaries, publications and employees, and conclusions as to why it took so long for the full facts to become known, are set out in detail in the Leveson Report, Volume 1, Part E. Whilst there is much to criticise in the actions of NI, as NI has admitted, adjudication of their actions is not a task for us. The task of this Committee is to consider whether the evidence provided by NI to the CMS Committee, by those persons who had authority to speak on behalf of the company (namely the then Chief Executives or MSC), was misleading as summarised in Chapter 8 of the CMS Committee’s 2012 Report. On the evidence available to this Committee, we are unable to draw that conclusion.
323.There is insufficient evidence of a breach of Parliamentary privilege on the part of NI (now News UK). NOTW was not a corporate body. As such, we do not consider NI to have committed a contempt.
261 Linklaters to CoP, 18 April 2016, Appendix 1, para 4
262 Linklaters to CoP, 18 April 2016, para 4.11
269 Linklaters to CoP, 18 April 2016, para 23.1
270 Linklaters to CoP, 18 April 2016, para 4.11
271 Paragraph 275 sets out the bullet point conclusions, and then at 276: “The effect of these actions and omissions is that the Committee’s Report to the House in February 2010 on Press standards, privacy and libel was not based on fully accurate evidence. False evidence, indeed, prevented the Committee from exposing the true extent of phone-hacking.”
272 19 July 2011 and 10 November 2011, and substantive written evidence— Ev 172, 236, 273, 287
273 See, for example,
276 Non-Royal family—counts 16–20
277 Note: this was a civil claim for breach of privacy and breach of confidence, i.e. based upon the use of the material—not for the physical commission of, or instruction to commit, phone hacking in order to gain the material.
279 This part of , 4 November 2009, provided by Jon Chapman
280 , February 2010
281 Linklaters to CoP, 18 April 2016
282 Unprinted evidence (CMS 2010 Report)
283 Unprinted evidence (CMS 2010 Report)
284 Linklaters to CoP, 18 April 2016
285 The statement was produced in accordance with the Criminal Justice Act 1967, s9; Magistrates Courts Act 1980, ss. 5A(3)(a) and 5B; and the Criminal Procedure Rules, r.27.1. It contained a signed statement of truth, that it was: “true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated anything in it, which I know to be false or do not believe to be true.”
286 Linklaters to CoP, 18 April 2016
287 Linklaters to CoP, 18 April 2016
288 see Ev 321 and 464
289 Presumably on instruction from News International in order that LPP could be waived formally
290 and additional copy from Harbottle and Lewis also on 11 August 2011 at Ev 215
13 September 2016