Leveson Inquiry – the killer question Robert Jay QC is not asking

The leading counsel to the Leveson Inquiry  Robert  Jay  QC and his fellow barristers are being surprisingly inept in their questioning when it comes to the question of the police illicitly supplying information to the press.  It is noticeable that although some very damaging revelations have come out during the course of the Inquiry, to the best of my knowledge none of them  to date have resulted in fresh opportunities for criminal prosecutions because  all of the revelations at the Inquiry  which might have resulted in prosecutions are already known to the police.

What  are Jay and his colleagues doing wrong?    They are rushing their fences by asking,  without any preamble,  press witnesses the bald question “Have you ever paid the police for information?”   Unsurprisingly the answer they are receiving is no. This may be the truth but there is also a strong possibility that guilty witnesses calculate that it is the safest answer all things considered.

Someone being questioned under oath  who is tempted to lie  has to weigh up the following before deciding whether to lie:

1. Is the question being asked , however seeming innocent,  likely to lead to more damaging questions?

2. What is the likelihood of the lie being exposed as a lie?

3. Is the lie worth telling in the context of the damage telling the truth would do versus the likelihood of the lie being found out and the seriousness of the lie If it is  discovered?

When press  witnesses are being questioned about their dealings with the police there will be a very strong temptation  for any journalist,  from editor to humble reporter,  to lie because to admit the truth that they had paid the police or knew of others who had would have potentially severe consequences.  It would be a very high value admission. Moreover, the press witness would also probably think that such payments would be impossible to prove.  It is also  the question produced without preamble which is most likely to produce a denial out of panic, which can be counter-productive if it happens at too earlier point in the questioning because it cuts off lines of inquiry .

However, the possibility  that those under oath will simply panic  and lie without weighing up the consequences is not as strong  as it might seem,  because someone giving evidence will often have a good deal of time to consider what might be asked when they go into the witness box.  They may also receive expert help to prepare them because, despite the prohibition on rehearsing witnesses in evidence directly relating to a case they are appearing in (http://www.barstandardsboard.org.uk/code-guidance/guidance-on-witness-preparation/), human nature being what it is you can bet it happens.  Moreover, simply engaging in role playing with   mock witness questioning by a lawyer whilst avoiding the subject matter of a particular case (which is permitted) can go some way to preventing panic by giving a witness a taste of what they will face.

When  witnesses  from the press appear at the Leveson Inquiry  they will have a further advantage to prepare themselves for questioning. They will have  made a witness statement so the position they will have to defend   should be  clear in their minds. The decision whether to lie or not  in response to any likely  question will have probably been taken during the preparation of the witness statement.

What Jay and his colleagues be doing?  They should have started  from the point of first establishing whether  crimes have been committed regardless of whether any money or other material inducement has been  given to the police. The passing of information illicitly by the police to the press necessarily breaches the Official Secrets Act and most probably the Data Protection Act. In those instances both giver and receiver commit corresponding offences. Conspiracy charges could also arise.  In addition,  the police officer would be guilty of misconduct in a public office. These possible offences have been  ignored by Jay and his colleagues.

The first thing Jay and co should be doing is  establish  whether  the witness had had any direct  dealings with the police or, if it is clear from their witness statement that they had  such dealings, to ask  how often they had met police officers.   Nothing too frightening there for the witness because it is perfectly legitimate for the police to have dealings with the media.  No need to lie about that.

Then should come a question or two about where the meetings took place.  Nothing necessarily improper there, although if the meetings have involved expensive restaurants for which the press was paying the  witness might find it discomforting to answer.  Still, no need to lie yet and in any case that is the sort of information which will  probably be known to others. Too risky to lie at this point  for that reason as well.

Once regular contacts between the police and the witness  have been admitted,  counsel can begin to ask more demanding questions  about the nature of the meetings and what information was passed from the police to the pressman.  Things are getting a little bit trickier. The pressman could simply deny ever receiving information he should not have received, but there would be a reasonable chance that if he is lying the lie could be exposed.  Yet if  the pressman admits receiving information  he will be drawn into saying what it was, at least in general terms.  Things are getting tricky.  The pressman will probably decide to admit to receiving information but give it a gloss to try to make it seem legitimate. Should the pressman make a  straight denial  and this not be disprovable from information counsel holds,  further investigations should be made.  The third option would be to refuse to answer on the grounds that it would incriminate the witness, but that would point the way for the police to start and investigation of the witness.

If the press witness admits to receiving information relating to police activity  he will put himself into a bind because the only plausibly legitimate circumstances in which the police can release information about police activity or data held by them to the  media is to the media generally.  This does not need to be done publicly, although it is best if it is publicly released except in special circumstances which require temporary public silence such a kidnapping, but it should be given to the media generally.  To supply it only to one person or one media outlet would be prima facie grounds for suspecting that the release of information was illegal.

At this point the press witness has to make a decision whether to lie, refuse to answer on the grounds of self-incrimination or tell the truth.  The pressman who has received information illegally  will  probably have it in his mind that third parties  apart from the police officer will know of the receipt of the information, for example, an editor may  know that one of his journalists has crossed the line into criminality. It may be that, as happened with phone hacking at the News of the World, an illegal practice is widespread within a newspaper.  There is also the possibility that an examination of the  individual’s stories or, in the case of an editor,  the stories printed by his  newspaper could strongly suggest the type of information illegally passed to the pressman by the police, for example, stories which contain information which could only have come from police sources.  If the press witness has serious doubts about whether a lie will remain uncovered he will probably refuse to answer on the grounds of self-incrimination.

Assuming the press witness does not fall back on self-incrimination,  he may try to finesse the  information received so that it appears legitimate, for example, chatting about a case which is already well reported in the media. Alternatively, the press witness may claim that nothing was discussed relating to police activity.  In either case persistent questioning about what was discussed in  the meetings between the police and  the press witness  if the meetings were entirely innocent will probably result in the press witness being unable to give much detail of the claimed meetings.  That is a strong pointer to  a lie having been told because liars normally have not got a detailed story worked out.  Someone  recounting something which has actually happened will have the detail, or what they remember to be the detail, in their heads because they have experienced it rather than having to create a story from scratch.

We are now at the point where the question of paying or rewarding the police in other material ways comes into view.  It may well be that by this point the press witness will have admitted to receiving information which they should not have received but which they do not realise they should not have received.  If so,  counsel is into the home straight,   because even if no admission of  payment to officers is  made there is both sufficient grounds for  starting a criminal investigation and leads to investigate whether payments have been made.  Counsel could try rattling the witness by pointing out the potential criminal offences which can be  committed without making payments. That is the point when the question “Have you ever paid or given any other material benefit to a police officer for  the supply of information?”  should be asked.

If the press witness has gone through the questioning without making any inadvertent admission of receiving information illegally, the question  “Have you ever paid or given any other material benefit to a police officer for  the supply of information?”  should also be put to them at this point. It at least puts down a marker and there is always a sporting chance that the question will elicit a refusal to answer on the grounds of self-incrimination if the questioning has played on the witness’  fears.

Robert Henderson  4 3 2012

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Robert Jay QC

Lead Counsel to the Leveson Inquiry

Leveson Inquiry

Royal Courts of Justice

Strand

London WC1

29 2 2012

Dear Mr Jay,

When questioning press witnesses about payments to the police for information you and your fellow counsel are consistently asking the wrong initial question.

The  question you and your colleagues are putting is  along these very  bald lines:  “Did you pay policemen for information?”  What you should asking as your initial question is  something like this “Did you or your staff ever receive information from the police which only you or  your paper received?”  If they have that is almost certainly a breach of the law. You can then move to a line of questioning which further  illustrates the illicit nature of the receipt of the information to which the person has admitted receiving or knowing has been received. The question about payment should come later.

The reason you should proceed in this manner is simple. By limiting the question to payment you allow the  witness to escape questioning about other offences. Whether or not payment or other material reward is  given to the police for information , the passing of information illicitly by the police to the press necessarily breaches the Official Secrets Act and most probably the Data Protection Act. In those instances both giver and receiver commit corresponding offences. Conspiracy charges could also arise.  In addition,  the police officer would be guilty of misconduct in a public office.

I find it difficult to believe that a barrister of your experience will not realise all that. So why are you and your colleagues not pressing the matter of the receipt of information illicitly regardless of whether money or payment in kind has occurred?

Yours sincerely,

Robert Henderson

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Sent to  robert.jay@39essex.com, josephine.norris@39essex.com, wirwin@tgchambers.com, DavidBarr@tgchambers.com, clerks@tgchambers.com, clerks@landmarkchambers.co.uk, tfisher@landmarkchambers.co.uk, clerksd@4-5.co.uk, hemmerson@4-5.co.uk

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