| Rapport de la Commission Leveson |
PART F THE CULTURE, PRACTICES AND ETHICS OF THE PRESS: THE PRESS
Chapter 5 Some Case Studies
3. Kate and Gerry McCann
3.1 In his submissions opening Module One of the Inquiry, David Sherborne, Counsel for the Core Participant Victims, described the press treatment of the McCanns as a 'national scandal': not merely had they suffered the personal tragedy of the abduction of their daughter, they were subjected to a barrage of press reporting which could only be fairly characterised as a diatribe. Clearly, therefore, it is appropriate to take the experience of the McCanns as a 'case study' warranting further examination for the light it throws on the culture, practices and ethics of the press. Their case is also highly illuminating in the context of the action, or rather the inaction, of the PCC.
The McCanns' personal perspective
3.2 Madeleine McCann was abducted from a holiday apartment in Praia da Luz, Portugal, on 3 May 2007, shortly before her fourth birthday. Her parents were dining with a number of friends at a tapas bar within the holiday complex and also within sight of the apartment where she was sleeping, together with her younger twin siblings. As Dr Gerry McCann's witness statement makes clear, much has already been written about the details concerning Madeleine's disappearance, and no one reading this Report is likely to be unaware of the basic facts. These include the fact that the McCanns are still searching for their daughter. In terms of the chronology, however, it should be noted that on 7 September 2007 the McCanns were accorded the status of arguidos (ie persons of specific interest to the investigation, but not a synonym for an accused) by the Portuguese Policia Judicaria (PJ). This was somewhat of a watershed in terms of the nature and quality of press reporting.
3.3 Just as the Dowlers had articulated the need to engage with the press in order to gain their assistance and support, the McCanns explained that they had no option but to implement a proactive press strategy: they were in a foreign jurisdiction, and time was of the essence in this, as in all other, child abduction cases. Such were the pressures of press engagement that it was necessary at an early stage to enlist the full-time assistance of a press advisor, Clarence Mitchell; he had been seconded to the Foreign and Commonwealth Office as part of the media liaison at this town. Dr McCann stressed to the Inquiry that the initial experiences of dealing with the press were positive:17
"I think for those people who can remember, it was a very unusual scenario, and we got a distinct impression that there was a genuine want to help attitude from the journalists there, and I think also many of the executives who perhaps saw what had happened to us and there was a huge amount of empathy. So I really did feel early on there was a desire to help." --------------------------
17 p14, lines 7-13, Gerry McCann, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of-Afternoon-Hearing-23-November-2011.pdf
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---------------------------3.4 Unfortunately, these favourable impressions began to dissipate when the McCanns returned home from Portugal. Much has been said by other witnesses about press intrusion and the behaviour, in particular, of paparazzi; the experiences of the McCanns were no different. They had become a news item, a commodity, almost a piece of public property where the public’s right to know possessed few, if any, boundaries. As Dr McCann explained:18
"When we got back to our home in Rothley, again there were tens of journalists – we live in a cul de sac, at the end of it – camped outside our house, cameras, helicopter crews following us. We were hemmed in the house for a couple of days before the police moved them to the end of our drive.
Q. Then you tell us that photographers were still banging on car windows, even with one or more children in the car; is that right?
MRS McCANN19: And they stayed there until December 2007. That was only after we had help to get them removed, but they were there every day, and they'd wait for Gerry to go and they knew I'd have to come out of the house at some point with the children. It would be the same photograph every day, we'd be in the car, myself and two children, the photographers would either spring out from behind a hedge to get a startled look that they could attach "fragile", "furious", whatever they wanted to put with the headline, but there were several occasions where they would bang on the windows, sometimes with the camera lenses, and Amelie said to me several times, "Mummy, I'm scared." 3.5 In answer to the suggestion that the positive decision made by the McCanns to engage with the press in order to serve their own interests effectively meant that they had waived their rights to privacy and everything else, Dr McCann said this20
"Well, it has been argued on many occasions that by engaging then it was more or less open season, and I think it's crass and insensitive to suggest that by engaging with a view to trying to find your daughter, that the press can write whatever they want about you without punishment." 3.6 Dr McCann was not of course suggesting that the press was obliged to write about him only on his terms rather than on theirs. However, the point he was making was entirely valid; a decision to engage with the press does not make a private person public property for virtually all purposes, still less does it begin to justify defamatory reporting.
3.7 The protracted spate of defamatory reporting commenced in September 2007 and had to be endured by the McCanns over four torrid months ending in January 2008. It only stopped after the McCanns were driven to take legal action against the worst perpetrators. It is well known that British newspapers were relying on reports in Portuguese journals and other sources which were either associated with, close to, or directly part of the PJ. But, as the McCanns themselves explained, the British press often did not know the source; or did not know whether it was accurate, exaggerated or downright untruthful; or (as the McCanns believed) sometimes made up.21
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18 pp27-28, lines 6-3, Gerry McCann, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of-Afternoon-Hearing-23-November-2011.pdf
19 there is an error in the transcript. This should of course read ‘Dr G. McCann’
20 p19, lines 17-22, Gerry McCann, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of-Afternoon-Hearing-23-November-2011.pdf
21 pp16-17, lines 23-1, Gerry McCann, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of-Afternoon-Hearing-23-November-2011.pdf
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3.8 A number of titles were guilty of gross libels of the McCanns and of serious and total failure to apply anything approaching the standards to which each has said they aspire.22 For that reason, the nature of the errors perpetrated by certain sections of the press will be explored, but at this stage it is sufficient to make the observation that, aside from the gross inaccuracy of the reporting in issue, some of it was, to put it bluntly, outrageous. One particular piece in the Daily Star published on 26 November 2007 certainly justifies being so described and Dr McCann was moved to go yet further:23
"Q. "Maddie 'sold' by hard-up McCanns." This is the article you do refer to, the selling into white slavery allegation. Probably you don't want to dignify that with a comment?
A. That's nothing short of disgusting.
MRS McCANN: I think this same journalist, if memory serves right, also said we stored her body in a freezer. I mean, we just ...
LORD JUSTICE LEVESON: Just to make the comment, there's absolutely no source for that assertion in the article."’ 3.9 In January 2008, letters before action were sent to a number of newspapers. The first response came from Northern & Shell, on behalf of the Daily Express, on 7 February. According to Dr McCann, the Express rejected the complaint on the straightforward ground that the McCanns were arguidos, but the paper suggested that they do an interview with OK! magazine; this was an offer which was rightly (and without any exaggeration) characterised by Dr McCann as 'rather breathtaking'.24
3.10 It did not take very long, however, for Northern & Shell to modify their position and, on 19 March 2008, a statement was read out in open court in which liability was admitted. The settlement also involved the making of a substantial payment into the Madeleine fund and the printing of an apology on the front page of the Daily Express and the Daily Star.25 The apology correctly pointed out that 'it is difficult to conceive of a more serious allegation'. It also correctly recognised that 'there is no evidence whatsoever to suggest that Mr and Mrs McCann were responsible for the death of their daughter, they were involved in any cover up and there was no basis for Express Newspapers to allege otherwise'. Given this admission, it is difficult to understand why the defamatory articles ever saw the light of day in the first place.
3.11 It should also be mentioned that others involved at the periphery of the McCann tragedy were the subject of defamatory reporting which led to substantial libel settlements. Mr Robert Murat was wrongly accused of being involved in some way in the abduction and was traduced in the British press; and the friends of the McCanns who had dined with them
22 p13, paras 78-80, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Gerald-Patrick-McCann.pdf; In July 2008 proceedings were commenced against Associated Newspapers Ltd in respect of 67 articles published in the Daily Mail and the Evening Standard over a five month period, as well as over 18 articles on the latter's website. These proceedings were compromised by the payment of a substantial donation to the Madeleine search fund and the publication of an apology in the Evening Standard. The Daily Mail were willing to publish a number of 'free adverts' to aid the search, but refused to publish any apology, claiming that the supportive articles they had written counter-balanced the others. As Dr McCann explained, by that stage he did not wish to embark on a protracted dispute with the newspaper, particularly given the need to maintain good relations with the press in continuing to publicise the search for Madeleine
23 p37, lines 3-16, Gerry McCann, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of-Afternoon-Hearing-23-November-2011.pdf
24 p38, line 23, Gerry McCann, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of-Afternoon-Hearing-23-November-2011.pdf
25 pp39-40, lines 22-1, Robert Jay QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of-Afternoon-Hearing-23-November-2011.pdf
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on the evening of Madeleine's abduction were falsely accused of being implicated in a cover up.
3.12 If ever there were an example of a story which ran totally out of control, this is one. The appetite for 'news' became insatiable, and once the original story had run its course the desire to find new leads and 'angles' began to take over, with their corollary tendencies of sensationalism and scandal. Not merely was the rigorous search for the truth the first principle to be sacrificed but also was any respect for the dignity, privacy and wellbeing of the McCanns.
3.13 Sections of the press have suggested that this was very much a 'one off' and scarcely illustrative of their culture, practices and ethics. But all the material evidenced below26 indicates that this is not the case: although the treatment of the McCanns may very well be one of the most egregious examples, the inquiry heard examples of similar practices from numerous witnesses. As paragraph 373 of the CMS Select Committee's Second Report, dated 9 February 2010, makes clear:27
"The newspaper industry's assertion that the McCann case is a one-off event shows that it is in denial about the scale and gravity of what went wrong, and about the need to learn from those mistakes." The press perspective
3.14 The Inquiry heard from two of the Daily Express journalists involved in reporting the McCann story. No criticism is made or to be inferred of them, because it was not their decision to run with the story generally or to publish any specific or individual pieces. For present purposes it is necessary to draw attention only to a short extract from the witness statement of one of the journalists:28
"Although I was confident of the veracity of the reports I was writing, due to the secrecy of justice laws they were impossible to prove, to any satisfactory legal standard, at that time...Due to the restrictions of the Portuguese law, anyone who was unhappy about something that had been written or said about them and wished to take action would almost certainly have been successful. As a journalist this is a wholly unsatisfactory position which, in my view, leaves news organisations at the mercy of potential litigants. They simply are unable to defend themselves." 3.15 The witness elaborated on this in oral evidence, and stated that he was certain that there were conversations between the news desk and lawyers about this. He continued: 'and that was the situation we were in and there was no way round it'.29 This reveals much about the culture, practices and ethics of the press. The journalist made it sound as if his newspaper was in the metaphorical cleft stick but, even on cursory analysis, this was not the case. There was no imperative to continue to report on the McCanns, still less to tell this particular story unless, of course, it is accepted that there was overwhelming pressure, both commercial and otherwise, to tell it. The news desk recognised that if the story were told on the basis of the unconfirmed reports coming out of Portugal, then 'anyone who was unhappy' would have had a close to cast-iron claim.
------------------------------26Part F, Chapter 6
27 http://www.publications.parliament.uk/pa/cm200910/cmselect/cmcumeds/362/362i.pdf
28 p4, paras 22-23, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Witness-Statement-of-David-Pilditch.pdf
29 p62, lines 16-22, David Pilditch, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-Morning-Hearing-21-December-20111.pdf
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30 p20, line 6, Peter Hill, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Afternoon-Hearing-12-January-2012.pdf
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3.16 It is of interest that the journalist could not bring himself to mention the McCanns by name; they, after all, would be the prime candidates for being 'unhappy' about the story. By then, they had become almost depersonalised, a commodity. Further, the newspaper decided to publish in the face of the concerns they had identified, placing themselves at 'the mercy of potential litigants'. Again, the McCanns are not mentioned by name and the newspaper is close to being placed in the role of victim. As the journalist put it, 'they [the newspaper] simply are unable to defend themselves'. One might have thought that the more sensible response to this assessment, rather than bemoaning the apparent unfairness of being placed in an impossible position, would have been the prudent course of not publishing stories which not only could they not prove, but for which they had not a scintilla of evidence. Behind the scenes briefings by police officers, themselves under pressure and constrained by Portuguese law which were passed through third and fourth parties, could hardly be thought to constitute any, let alone a sound, basis for publishing such allegations as truth.
3.17 These issues were taken up with the editor of the Daily Express at the relevant time, Peter Hill. He frankly accepted that running the McCann story was very high risk,30 given all the factors identified by his journalists. When asked to explain why he chose to publish in those circumstances, Mr Hill explained:31
"Because this was an unprecedented story that in my years of experience I can't remember the like. There was an enormous clamour for information and there was enormous – there was an enormous push for information. It was an international story, on an enormous scale, and there had not been a story involving individuals, as opposed to huge events, like that in my experience and it was not a story that you could ignore and you simply had to try to cover it as best you could." 3.18 But 'covering it as best you could' meant running a story in circumstances where there was a high chance that it was untrue and, in any event, was utterly unprovable. Mr Hill accepted the 'very high risk',32 and felt driven to publish anyway, placing him and his paper in ethical difficulties in the context of clause 1 of the Editors' Code and legal difficulties with the law of defamation. His answer also betrays a curious form of logic: if, as was probable, the particular story was untrue, then it both could and should have been rejected. A different, truthful and, by definition, better story should have been written based on the research that the journalists could undertake that generated facts that could be proved. 'Covering it as best you could' did not mean throwing caution to the winds.
3.19 Mr Hill was also asked whether the interests of the McCanns were taken into account. He was adamant that they were:33
'Of course. We published many, many, many, many stories of all kinds about the McCanns, many stories that were deeply sympathetic to them, some which were not' --------------------------------
31 p20, line 9-17, Peter Hill, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Afternoon-Hearing-12-January-2012.pdf
32 pp83-84, Dawn Neeson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Morning-Hearing-12-January-2012.pdf;
33 pp20-21, lines 25-2, Peter Hill, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Afternoon-Hearing-12-January-2012.pdf
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34p21, lines 13-15, Peter Hill, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Afternoon-Hearing-12-January-2012.pdf
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3.20 Unfortunately, Mr Hill's answer betrays a similar curious form of logic: the deeply sympathetic stories on this approach should be regarded as being capable of being weighed in the balance in some way against the stories 'which were not', these being the stories which, as was put to Mr Hill, accused the McCanns of killing their child. His answer to that proposition was that the stories he ran were only repeating the accusations of the Portuguese police.34
3.21 The self same logic underpinned the evidence of the proprietor of Express Newspapers, Richard Desmond, when he was asked about this topic. Mr Desmond said this:35
"I'm not trying to win points here, because we did do wrong, but I could say there were more, if there were 102 articles on the McCanns, there were 38 bad ones, then one would say – and I'm not trying to justify, please, I'm not trying to justify anything, but you could argue there were 65 or 70 good ones." 3.22 Notwithstanding the language deployed, this was an attempt by Mr Desmond to expiate, or at the very least to mitigate, his company's conduct, which simply fails to recognise that it is completely misconceived.36 It is additionally unfortunate that further questions revealed that Mr Desmond's apology was not entirely unqualified:37
"and once again I do apologise to the McCanns, you know, et cetera, et cetera, et cetera, but there are views on – there are views on the McCanns of what happened. And there are still views on the McCanns of what happened...What I think is free speech is very important and if we get any more regulation – I mean, what are we trying to do in this country? Are we trying to kill the whole country with every bit of legislation and every bit of nonsense?" 3.23 This was another revealing answer, since by it Mr Desmond revealed what I consider to be a very disturbing philosophical approach to the concepts of free speech and a free press. For him, at the end of the day, the issue was all about free speech and the threat of excessive regulation. On this approach, press standards and ethics were close to being irrelevant. Mr Desmond had made that clear towards the start of his evidence, when he disputed that ethical lines could be drawn.38 Finally, it should be noted in this context that Mr Desmond was inclined to blame the PCC for failing to give his paper guidance39 rather than accept that his editor should accept at least some responsibility.
3.24 The PCC should have done more, but Express Newspapers could not reasonably infer from the PCC's inaction that their action was ethical. Mr Desmond, like his Finance Director Paul Ashford,40 also blamed the PCC for acting hypocritically by criticising Mr Hill after the event, particularly in circumstances where Express Newspapers had behaved no differently from anyone else. There is merit in the argument that an even-handed regulator should have taken
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34p21, lines 13-15, Peter Hill, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Afternoon-Hearing-12-January-2012.pdf
35 p84, lines 18-23, Richard Desmond, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Afternoon-Hearing-12-January-2012.pdf
36 pp88-89, Richard Desmond, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Afternoon-Hearing-12-January-2012.pdf
37 p86, lines 3-19, Richard Desmond, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Afternoon-Hearing-12-January-2012.pdf
38 p64, lines 5-18, Richard Desmond, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Afternoon-Hearing-12-January-2012.pdf
39 p77, lines 15-17, Richard Desmond, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Afternoon-Hearing-12-January-2012.pdf
40pp39-40, lines 15-5, Richard Desmond, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Afternoon-Hearing-12-January-2012.pdf
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41 pp91-92, lines 23-5, Sir Christopher Meyer, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Morning-Hearing-31-January-2012.pdf
40pp39-40, lines 15-5, Richard Desmond, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Afternoon-Hearing-12-January-2012.pdf
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everyone to task and there is force in the point that criticism of the approach of the press generally could and should have gone wider, but this is not an allegation of hypocrisy: the PCC were not applauding the conduct of other titles while condemning the Express (which demonstrated the most egregious failings); they were simply using emotive language borne out of a degree of anger to condemn the Express and saying nothing about others.41
3.25 On the other hand, the real point is that a regulator, acting in the interests of the public, while respecting free speech, should have taken much firmer action in relation to the way in which this story was reported, even though the titles affected would have found unpalatable the criticism that they should have faced. That the PCC did too little too late is not a complaint which it lies in Mr Desmond’s mouth to make.
3.26 One of Mr Hill's journalists had said in evidence that his editor was 'obsessed' with the story. Mr Hill rejected that description of his state of mind,42 although in explaining his motives and reasons for persevering over so many months, his revealing answer was as follows:43
"I've already explained to you the basis for that decision, which had gone all the way back to my time on the Daily Star when I had realised that it was – that the readers were more – the readers continued to be interested in the stories far longer than the journalists, and it was my policy to continue the stories and I followed it with many different stories. It started with Big Brother, it went on to Princess Diana, various other things, and that had always been my policy. It was nothing to do with an obsession, it was more to do with a method of working." 3.27 In other words, Mr Hill's 'method of working' tended to discern little or no difference between 'Big Brother' and the McCanns: this was all about similar commodities and what he believed his readers were interested in. The obvious potential link between what Express readers were apparently interested in and circulation figures was one which the Inquiry explored, but in the end it was not possible to reach any firm conclusions. Mr Hill testified that he believed that circulation went up as a result of the McCann stories and that this was a factor in his persisting with them.44 He himself viewed the circulation figures and came to that empirical conclusion. However, the Inquiry's examination of the data did not disclose any clearly discernible patterns.45
3.28 Overall the justifications advanced by Messrs Hill and Desmond for the frankly appalling treatment of the McCanns were, as has been clearly demonstrated, both self-serving and without foundation.
The PCC's response
3.29 Two days after Madeleine's disappearance, the PCC contacted the British Embassy in Lisbon and asked the consular service to inform the McCanns that the services of the PCC were
41 pp91-92, lines 23-5, Sir Christopher Meyer, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Morning-Hearing-31-January-2012.pdf
42 p26, lines 2-6, Peter Hill, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Afternoon-Hearing-12-January-2012.pdf
43 p26, lines 12-23, Peter Hill, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Afternoon-Hearing-12-January-2012.pdf
44 p24 passim, p25, lines 18-23, Peter Hill, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Afternoon-Hearing-12-January-2012.pdf
45 Exhibit PWH3 to the witness statement of Peter Hill (which included circulation figures for the Daily Express between 1 January 2007 and 4 January 2009) was provided to the Inquiry on a confidential basis. It has not been published as it includes commercially sensitive data
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46 para 354, http://www.publications.parliament.uk/pa/cm200910/cmselect/cmcumeds/362/362i.pdf
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available to them. Dr Gerry McCann's evidence was that he was unaware of this until 2009 when he gave evidence before the CMS Select Committee. He told that Committee that he did not recall receiving such a message but, had he done so, it would have been lost in all the other information the family was bombarded with at the time.46
3.30 Dr McCann accepted that the PCC had been extremely helpful in dealing with the unwanted intrusion into the privacy of the twins.47 The PCC intervened to contact editors and broadcasters reminding them of the Code and, thus, not to take photographs or similar images of the children; this practice stopped.48 The PCC was also helpful in removing photographers from outside the McCanns' driveway, although this was only after "what we felt was a very long period".49
3.31 A meeting took place between Dr McCann and Sir Christopher Meyer, former PCC Chairman, on 13 July 2007. There is no dispute between them as to what was said. Sir Christopher's evidence was that he explained to Dr McCann, at a time when there had only been one complaint to the PCC against a newspaper and that was not proceeded with, that he effectively had a choice: either he could complain to the PCC, or he could take legal action, but he could not pursue both courses simultaneously.50 When asked what the PCC did for the McCanns over the most distressing period, which was between September 2007 and January 2008, Sir Christopher said this:51
"We were in pretty close contact with the press handlers of the McCanns. By that time, it was as gentleman called Clarence Mitchell, who I think may have appeared before you, and we stood ready to intervene if they wanted it. We come again to the question of the first party. You see, you can't be more royalist than the king on these matters. You cannot wish to stop something more ardently than the first party. But by that time, I think they had chosen to go to law. I can't say exactly, because it's not for me to say, when they first hired Carter Ruck. So it's not as if we were sitting there..." 3.32 This was a roundabout way of saying that the PCC did nothing. True, the PCC was on hand if the McCanns had not decided to litigate, but they should not have been presented with such a choice. Given the options which Sir Christopher had himself explained to Dr McCann, and given the scale of the defamatory treatment to which he and his wife had been subjected, this was a classic case of Hobson's choice. Further, as Dr McCann himself pointed out, it was invidious that he and his wife were being asked to contemplate bringing a complaint against a body on which the editor of the Daily Express sat. A regulator of press standards, worthy of that name, would not have left the McCanns in such a predicament at the time of their maximum distress. Either the McCanns should not have been presented with mutually incompatible alternatives and given the option of pursuing both, or the PCC should have been 'more royalist than the king' (to quote Sir Christopher) and taken unilateral action.
3.33 Sir Christopher took the editor of the Daily Express to task for his conduct on the very day that the McCanns' libel action was settled. This was too little, too late, and even after the facts had been conclusively established (by admission) the PCC took no formal action. As the CMS
46 para 354, http://www.publications.parliament.uk/pa/cm200910/cmselect/cmcumeds/362/362i.pdf
47 paragraph 3.4 above
48 p17, para 103, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Gerald-Patrick-McCann.pdf
49 para 356, http://www.publications.parliament.uk/pa/cm200910/cmselect/cmcumeds/362/362i.pdf
50 pp84-87, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Morning-Hearing-31-January-2012.pdf
51 p85, lines 3-15, Sir Christopher Meyer, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Morning-Hearing-31-January-2012.pdf
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52 Part J
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Select Committee correctly pointed out, and as will be discussed in more detail below,52 the PCC was empowered under its Articles of Association to launch an inquiry in the absence of a complaint. The McCann case ought to have been visualised as a prime candidate for such a course of action.
3.34 The Inquiry cannot improve on the conclusions of the CMS Select Committee in February 2010 when reviewing the McCann case:53
'374. In any other industry suffering such a collective breakdown – as for example in the banking sector now – any regulator worth its salt would have instigated an enquiry. The press, indeed, would have been clamouring for it to do so. It is an indictment on the PCC's record, that it signally failed to do so.
375. The industry's words and actions suggest a desire to bury the affair without confronting its serious implications – a kind of avoidance which newspapers would criticise mercilessly, and rightly, if it occurred in any other part of society. The PCC, by failing to take firm action, let slip an opportunity to prevent or at least mitigate some of the most damaging aspects of this episode, and in doing so lent credence to the view that it lacks teeth and is slow to challenge the newspaper industry.' The Kate McCann Diaries
3.35 Dr Kate McCann had kept a personal diary recording her innermost thoughts and feelings following the disappearance of her daughter. It was intensely private, and she did not share its contents even with her husband. The diary was seized by the PJ in August 2007 pursuant to its investigations, but the Portuguese court ordered its return to Dr McCann, as well as the destruction of all copies in its possession. The PJ had translated the diary into Portuguese and unfortunately one of the copies of the translated version found its way into the hands of a Portuguese journalist.
3.36 A former NoTW journalist told the Inquiry how a copy of the diary was acquired by the paper on payment of a substantial sum and then translated back into English. As Dr McCann pointed out in her evidence, the re-translated text did not completely match the wording of the actual diaries, but this is a minor point when set against the scale of the violation to her privacy which came to be perpetrated.
3.37 The journalist's understanding was that the news editor, Ian Edmondson, would 'confirm with the McCann press spokesperson that the diary was genuine', and would obtain his consent to publish extracts from the diary. However, his written and oral evidence about these matters was somewhat vague,54 not because he was seeking to mislead the Inquiry in any way but for reasons which will soon become apparent.
3.38 One piece of evidence given by the journalist was particularly revealing:55
'But I think in terms of considering it being appropriate to publish Mrs McCann's diary and the obvious considerations over privacy, the view taken by senior executives was that there were all sorts of false allegations being made about the McCanns and they -----------------------------------
52 Part J
53 http://www.publications.parliament.uk/pa/cm200910/cmselect/cmcumeds/362/362i.pdf
54 Daniel Sanderson, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-Morning-Hearing-15-December-20111.pdf; http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Witness-Statement-of-Daniel-Sanderson.pdf
55 p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Witness-Statement-of-Daniel-Sanderson.pdf
555
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56 Part F, Chapter 6
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really were being pilloried in the press, that this account gave a true picture of the McCanns and dispelled some of the lies being written about them'
In other words, the predominant consideration was not concerns about the McCanns' privacy but rather the newspaper's own evaluation that this was a sympathetic story which placed them in a good light and was above all else true. This is exactly the same sort of reasoning process which the Inquiry has so often noted in its review of the critical material below.56
3.39 Colin Myler, the editor of the NoTW at the time, was asked about these matters. He had had previous dealings with the McCanns and had, for example, berated Dr Gerry McCann for doing an interview with Hello! Magazine in preference to the NoTW.57 His version of events was that his news editor, Ian Edmondson, obtained consent to the publication of extracts from the diaries from Mr Mitchell:58
"Q. But the obvious question, Mr Myler, is this: why did you not telephone either of the McCanns and find out whether they consented?
A. Because Ian Edmondson had assured me on more than one occasion that Clarence was aware of what we were intending to do and had said, "Good". I think it was very clear from Mr Edmondson’s point of view how he'd spelt out what he was doing, and indeed I stressed very clearly by using the phrase that I did not want Kate to come out of church on Sunday morning and find that the diaries were there without her knowledge.
Q. But you were of course aware that if Dr Kate McCann had not given her consent to the publication of this personal diary, she would be outraged by the publication. You were aware of that, weren't you?
A. I wouldn't have published if I'd thought that she hadn't been made aware of it.
Q. And Mr Edmondson was telling you that he'd obtained consent on what day?
A. Well, it was absolutely clear from the Friday to the Saturday that that assurance had been given to him and given again to me.
Q. It was going to be a front page story, wasn't it?" 3.40 Mr Edmondson's account differed from Mr Myler's. He explained that he tape-recorded his telephone conversation with Mr Mitchell without the latter's knowledge in the interests of 'accuracy', although he accepted that this entailed an element of misleading his interlocutor.59 Mr Edmondson was asked to state whether he made it clear to Mr Mitchell that it was the intention of the NoTW to publish extracts from the diary verbatim. It is worth setting out his answer in full:60
"A. I didn't make it clear.
Q. And you say because you were given express instructions by Mr Myler? ------------------------------
56 Part F, Chapter 6
57 p14, para 84, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Gerald-Patrick-McCann.pdf
58 pp87-88, lines 12-9, Colin Myler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-Afternoon-Hearing-14-December-2011.pdf
59 pp65-66, lines 20-4, Ian Edmondson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of-Morning-Hearing-9-February-2012.pdf
60pp67-68, lines 8-22, Ian Edmondson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of-Morning-Hearing-9-February-2012.pdf
556
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61 para 2.54,Part F, Chapter 4
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62 p14, para 86, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Gerald-Patrick-McCann.pdf
60pp67-68, lines 8-22, Ian Edmondson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of-Morning-Hearing-9-February-2012.pdf
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A. Correct.
Q. When did he give you those instructions? Can you recall?
A. From memory, at a meeting on Thursday of that week.
Q. Why did he give you those instructions?
A. I attended a meeting with Mr Myler and Tom Crone where we discussed this story. I think we got the story to a point where I was prepared to present it to Tom and Colin, the editor. Colin gave – sorry, I beg your pardon, Tom gave his legal view, which I'm told I'm not allowed to repeat, but which dismayed, shall I say, Mr Myler. So he decided to ask me to make a call to Mr Mitchell, not make it clear what we had, tell him in general terms, basically make it very woolly. I think someone previously used the word "ambiguous", and that is absolutely spot on what he wanted.
Q. So the preferred outcome for the end point of the conversation with Mr Mitchell would be what?
A. To give him the impression that we were running a story but not tell him specifically what story, certainly don't tell him that we were in possession of the complete diaries, as we understood. There had been extracts in the diaries – of the diaries in Portuguese papers which had been translated into the English papers, but certainly not to the extent that we had. He was frightened that if Clarence knew what we had, he might take action.
Q. Well, he would do – was the fear that he would, at the very least, tell his clients, the McCanns, what was going on?
A. Correct.
Q. And they would certainly get back to Mr Myler by phone?
A. Correct.
Q. Or make an application for an injunction to stop the News of the World publishing? Is that what it amount to?
A. That's exactly what it would."
3.41 This was devastating evidence. It would be remarkable if Mr Edmondson was seeking to mislead the Inquiry regarding Mr Mitchell being given a 'woolly' or an 'ambiguous' account of the newspaper's intentions: it was a frank admission of unethical conduct and fits the transcript of the conversation. Mr Edmondson's version of events was not available when Mr Myler testified some eight weeks previously, but it has since been put to him for comment. It is inherently more probable that Mr Edmondson would have been acting on instructions with regard to an issue of this nature rather than making the executive decision himself. In any event, the frankness and precision of his evidence on this issue, including his reference to Tom Crone and legal advice, renders it more likely than not61 that his account is correct.
3.42 Regardless of issues of individual responsibility, this case study is particularly illuminating for this reason. Read in isolation and out of context, it could be said that the transcript is somewhat ambiguous so that it could be deployed in support of a contention that, in some way, Mr Mitchell consented on behalf of the McCanns to the publication of extracts from the diaries. Thus, it was regarded by the paper as important to obtain written evidence which could be used if necessary to justify what happened. Read in the context of Mr Edmondson's explanation, however, the position is crystal clear. It is equally clear that deliberate decisions
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61 para 2.54,Part F, Chapter 4
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were made within the NoTW to obtain this evidence by obfuscatory tactics and to deploy to their advantage the fact that a conversation of sorts had occurred should the need subsequently arise. In the result, there was a letter before action, and the matter was settled without the necessity of its ventilation in court.
3.43 But the impact on Dr Kate McCann in particular was traumatic. As Dr Gerry McCann explained in his witness statement, 'Kate was distraught and morally raped.'62
3.44 What the McCanns did not make explicit when giving their evidence, but was or ought to have been entirely obvious to any empathetic observer, is that the conduct of the press as highlighted in this section of the Report served only to magnify and compound their distress and upset consequent upon the abduction of their daughter.
3.45 Overall, it is impossible to disagree with Professor Brian Cathcart, professor of journalism at Kingston University, and his pithy and trenchant assessment:63
"I draw the analogy with, you know, other areas of life. If there's a railway accident, there is an inquiry and lessons are learned. In the press, I was very influenced by observing the McCann case develop over month after month after month like a slow motion crash, and yet there was no introspection in the industry afterwards. The damages were paid, the books were closed, and they moved on. That is not – you know, we wouldn’t accept in the railway industry or in, for example, a hospital, we wouldn't accept that nobody went back and assessed what had happened and tried to identify how things could be changed to prevent it happening again. So I think a mechanism – a regulator who is prepared to go in and do that is essential." --------------------------------------------
62 p14, para 86, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Gerald-Patrick-McCann.pdf
63 pp73-74, lines 23-12, Professor Brian Cathcart, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-Morning-Hearing-8-December-20111.pdf
