Leveson Inquiry - Video & Transcript
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Leveson Inquiry - Video & Transcript
Remaining video and transcript/video links to follow
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http://www.levesoninquiry.org.uk/hearing/2011-11-23pm/
Gerry McCann
Transcript of Afternoon Hearing 23 November 2011 (pdf, 145KB)
Witness Statement of Gerry McCann (pdf, 4.13MB)
http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of-Afternoon-Hearing-23-November-2011.pdf
Kate McCann
Transcript of Afternoon Hearing 23 November 2011 (text, 150KB)
Witness Statement of Kate McCann (pdf, 110KB)
NOTE:
To find a specific comment, scroll to the bottom of the transcripts and choose a keyword. The page location will be identified.
http://www.levesoninquiry.org.uk/hearing/2011-11-23pm/
Gerry McCann
Transcript of Afternoon Hearing 23 November 2011 (pdf, 145KB)
Witness Statement of Gerry McCann (pdf, 4.13MB)
http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of-Afternoon-Hearing-23-November-2011.pdf
Kate McCann
Transcript of Afternoon Hearing 23 November 2011 (text, 150KB)
Witness Statement of Kate McCann (pdf, 110KB)
Re: Leveson Inquiry - Video & Transcript
http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of-Afternoon-Hearing-23-November-20111.txt
1
2 (2.00 pm)
3 LORD JUSTICE LEVESON: Yes, Mr Jay.
4 MR JAY: Mr Rowland, we're on the issue of impact now and
5 you pick this up at paragraph 22 of your witness
6 statement.
7 A. Yes.
8 Q. In your own words, how would you characterise it?
9 A. Well, it's an intrusion, firstly. They have no right to
10 do that. It's appalling that it should happen. I had
11 a large number of really quite sensitive business
12 contacts that -- where it would be both embarrassing and
13 potentially awful for my business if this information
14 leaked out and it was traced back to me, and I felt that
15 there was also an element that -- I mean, I've never
16 worked for the News of the World, at that time I didn't
17 know any News of the World journalists, but if they
18 wanted to come and ask me something, then why was it
19 that they routinely got someone to hack my phone instead
20 of coming to me and asking?
21 Q. Press regulation. You've obviously thought about this
22 carefully and deeply. You give us the benefit of your
23 views in paragraph 23 in your witness statement and
24 following. You've, I think, heard a lot of the evidence
25 over the last few days. You've been taking a keen
1
1 interest in this Inquiry. What are your
2 recommendations, please?
3 A. Well, I mean, when I was at the Daily Telegraph, I did
4 a large number of investigative stories in a slightly
5 odd climate, because if you'll recall, the Telegraph at
6 the time was owned by Conrad Black, Lord Black, current
7 address Cell Block H somewhere in Florida. He was
8 forever, if you recall, buying and selling the newspaper
9 or shares in the newspaper. He was either privatising
10 it or floating it and that meant there was a constant
11 regime of due diligence going on and he was frightened
12 that having unresolved defamation actions on the book
13 would damage the potential valuation of the paper.
14 So there was a lot of moaning at the Telegraph among
15 the journalists that what they saw as innocuous pieces
16 that were routinely being put into other newspapers were
17 being held out of the Telegraph by the in-house
18 defamation lawyers. So it was a quite repressive, they
19 said, regime.
20 Now I wanted to get more investigative stories in,
21 if I possibly could, so I adopted a different approach,
22 which was to go along to the in-house defamation lawyers
23 and ask one simple question, which is what do I have to
24 do to this story in order for you to be happy to run it?
25 And they said, well, you know, you need to check all of
2
1 the sources, you need to make sure that you have proper
2 witness statements when you need it, you need to decide
3 all of the things that Alan Rusbridger was talking about
4 in the sort of lists of things that people do these
5 days. They were making sure I did.
6 It occurred to me that the mantra that exists at the
7 moment, the orthodoxy that more regulation or tighter
8 regulation of the press will inhibit press freedom
9 because journalists will have a lawyer standing at their
10 elbow at the time, actually is completely wrong. Having
11 a lawyer standing at your elbow improves the quality of
12 what you do because the lawyer is the only person in the
13 office, the defamation lawyer, who acts as a proper
14 quality control mechanism.
15 Everybody in a newspaper room think they know what
16 a good story is. There's very few regulatory mechanisms
17 there to say, well, is it fair? Is it accurate? And
18 has it been put to the people properly before you run
19 it? And because I went through that mechanism, I look
20 back at them now and I think actually they were very
21 good stories and part of the reason was I had all of
22 this great advice that was being given to me.
23 So when things did go to some extent wrong and
24 people complained and I was taken to the Press
25 Complaints Commission on three occasions -- I checked
3
1 with the PCC actually before this Inquiry started, and
2 I was the very first national newspaper journalist to be
3 exonerated in a PCC inquiry. And the reason I was
4 exonerated is because I'd had the stories lawyered
5 backwards, forwards, up and down, and they were as tight
6 as we could possibly make them.
7 I would argue that is an entirely beneficial
8 process.
9 I'd also say that I think there's been a disastrous
10 deterioration in the last ten years in a lot of ways
11 because more and more stories are written by freelance
12 journalists and they do not have the same access to the
13 same legal resources.
14 I'll give you an example. I worked for a long
15 time -- well, quite a long time, when they set up the
16 supplement I was talking about at the Mail on Sunday, so
17 I was a Mail on Sunday freelance journalist, and I was
18 put in the position of running stories where I thought
19 corners were being cut and I didn't have access to
20 proper legal advice before they were run, and there was
21 one particular occasion when -- it was a very high
22 profile -- I won't refer to the actual details of the
23 story, but it was as very high-profile couple who were
24 involved in some rather esoteric house purchases and
25 there was a whistle-blower and I was unsure about the
4
1 whistle-blower and I thought we needed to go back and do
2 some more checks, but they ran the story anyway. And
3 I and Mr Caplan down here, the barrister for the Mail on
4 Sunday, had to actually dig them out of the hole
5 afterwards, and I would argue that the freelance
6 journalists should have been talking to the lawyers
7 before it was published, not afterwards.
8 LORD JUSTICE LEVESON: All right.
9 MR JAY: Thank you very much, Mr Rowland. You've given your
10 evidence very clearly, thank you very much. May I just
11 check, is there anything you would wish to add?
12 A. Yes, there is one thing.
13 Q. Yes, okay.
14 A. When you had the seminars, sir, there was talk there
15 about press practices in the 1970s and how they've
16 improved greatly because of the regime that's been put
17 into place by the PCC. One of the examples that was
18 given was the theft of photographs, and I think it was
19 Mr Dacre, the editor of the Daily Mail, who said that
20 such a practice was outrageous and that it no longer
21 took place.
22 Well, I would disagree. I think that there are
23 many, many more photographs that are stolen these days,
24 but they're stolen electronically. It's not in my
25 evidence or my witness statement, but I had examples of
5
1 photographs that have been quite blatantly and
2 shamelessly stolen by national newspapers, not in the
3 1970s but almost within the last seven months.
4 The example I'm thinking about, I actually have an
5 audit trail, because I was involved in it, that I've
6 pieced together so you can see what was done and when,
7 or rather what wasn't done and when, and they just
8 sliced off the watermark on the bottom with the
9 copyright notice of the photographer, and then refused
10 to pay him. And that, in Mr Dacre's word, is actually
11 outrageous and it's an abuse that could be stopped by
12 a regime of punitive fines and that, I hope, is
13 something that the Inquiry will think about putting into
14 place.
15 I can make that photograph available to you, if you
16 think it might help, and put it into the record. I'm
17 prepared to do that.
18 LORD JUSTICE LEVESON: We'll decide whether we should put it
19 formally into the material that is read into the record.
20 Thank you very much indeed.
21 A. Okay.
22 LORD JUSTICE LEVESON: Thank you.
23 MR JAY: Thank you. I don't think we need a break. Shall
24 we move on to the next person?
25 LORD JUSTICE LEVESON: We don't need a break after seven
6
1 minutes, Mr Jay.
2 MR JAY: The next witnesses are Dr And Dr McCann, please.
3 DR GERALD PATRICK McCANN and DR KATE MARIE McCANN (sworn)
4 MR JAY: Thank you very much. First of all, I'm going to
5 invite each of you to provide us with your full names,
6 please.
7 MR McCANN: Gerald Patrick McCann.
8 MRS McCANN: Kate Marie McCann.
9 LORD JUSTICE LEVESON: Before we start, you've probably
10 heard me thank others before you for coming along,
11 voluntarily, to speak of matters which I have no doubt
12 are intensely personal and extremely sensitive, and I am
13 very, very grateful to you for doing so.
14 In your case, of course, nobody, and in particular
15 nobody with children, could fail to appreciate the
16 terrible impact of your daughter's abduction on you and
17 your family, so words of sympathy for these appalling
18 circumstances are utterly inadequate, but I am very
19 grateful to you for coming.
20 MR JAY: I know each of you would like your counsel to ask
21 a few preliminary questions. Before he does so,
22 formally can I invite you to confirm the contents of
23 your respective witness statements. You, Dr Gerald
24 McCann, there's a statement dated 30 October, and
25 there's a statement of truth at the end of it. Is that
7
1 correct?
2 MR McCANN: It is.
3 Q. And then Dr Kate McCann, a far more recent statement
4 referring to your husband's statement and again with
5 a statement of truth dated 22 November; is that right?
6 MRS McCANN: That's right.
7 MR JAY: Just a few questions from Mr Sherborne and then
8 I will proceed.
9 Questions by MR SHERBORNE
10 MR SHERBORNE: Thank you. As Mr Jay said, I'm going to just
11 ask you a few preliminary questions.
12 Everybody is well aware, particularly following the
13 submissions last week, that you've been forced to take
14 a number of legal complaints or actions as a result of
15 some of the coverage that you received following the
16 abduction of your daughter. Not just articles that were
17 published, but also to stop articles being published,
18 often on weekends, and I know that Mr Jay is going to
19 talk to you about that in due course.
20 Can I just ask you, though, have you ever had to
21 give evidence before?
22 MR McCANN: No.
23 Q. So this is the first and, I hope, the last time. Given
24 that you've had a lifetime of lawyers, nice ones, of
25 course, can you just explain to the Inquiry why you've
8
1 agreed to give evidence?
2 MR McCANN: I think it's for one simple reason, in that we
3 feel that a system has to be put in place to protect
4 ordinary people from the damage that the media can cause
5 by their activity, which falls well below the standards
6 that I would deem acceptable.
7 Q. Of course, we all here understand that your overriding
8 objective is the continuing search for your daughter.
9 We've seen from your statements, or we will see, once
10 the statements are publicly made available, that in
11 terms of reporting, you've experienced what I might call
12 the good, the bad and the particularly ugly side of the
13 press. One might ask this: is it helpful to have
14 Madeleine permanently in the public eye?
15 MR McCANN: I've talked about this on several occasions in
16 the past, and I do not feel it's helpful, and
17 particularly at the time when there were daily stories
18 running throughout 2007 and 2008. It became very
19 apparent to us early on there was an incredible amount
20 of speculation and misinformation. It led to confusion
21 amongst people. All we need to do is periodically
22 remind the public who have supported us so much that
23 Madeleine is still missing, there's an ongoing search
24 and those responsible for taking her are still at large
25 and have to be brought to justice.
9
1 MRS McCANN: I was just going to say obviously there was a
2 period when Madeleine was on the front page of a paper
3 every day, and I know occasionally people would say to
4 me "That has to be a good thing, hasn't it? She's in
5 the public eye", and that isn't the case because when
6 the story is so negative about her, and we'll come into
7 that, obviously then that is not helpful. As Gerry
8 said, I think it's a reminder that's important, that's
9 all.
10 Q. That's Madeleine. What about you both being in the
11 public eye? Is that helpful?
12 MR McCANN: I don't think it is helpful. Obviously we
13 realise that as Madeleine's parents, and particularly
14 given what's happened to us, that if we are delivering
15 the message, then it offers more appeal and is more
16 likely to get coverage. And of course we have also
17 acknowledged that the media have been very helpful on
18 occasion particularly when we have launched appeals, and
19 huge amounts of information have come into the inquiry
20 as a direct result of our appeals, and we'd like to
21 thank everyone in the public who have come forward.
22 Q. Finally can I ask you this: there are a number of
23 specific things you'll be asked about and Mr Jay is
24 going to take you through your statement, but it might
25 help Lord Justice Leveson and the Inquiry if you could
10
1 just outline in very general headline terms what your
2 concerns are about the culture, practices and ethics of
3 the press.
4 MR McCANN: I think there are four main areas I would be
5 keen to give evidence on that we have direct experience
6 of. One is obviously libel, which has been very well
7 publicised, but then also the lasting damage it causes.
8 Secondly, the privacy laws and current, I would say,
9 gaps in legislation at the minute where companies can
10 use photographs, can hound you, without your consent,
11 for commercial gain.
12 I think there has been contempt demonstrated by the
13 media, primarily the press but to some extent
14 broadcasters as well, both for the judicial process and
15 also at times Madeleine's safety. And the fourth thing,
16 which probably is not regulated by law and I hope this
17 Inquiry will deal with, is about what are acceptable
18 standards and how individual journalists and corporate
19 entities, editors and subeditors, are held to account.
20 MR SHERBORNE: I'm very grateful. If you wait there, Mr Jay
21 has more questions for you.
22 Questions from MR JAY
23 MR JAY: Dr McCann, I have an eye on those four themes and
24 if you don't mind, I'll come back to them at the end of
25 your evidence. Your witness statement is publicly
11
1 available and I can see it out of the corner of my eye
2 on a screen, but if you could have it in front of you in
3 print, you tell us in terms of your career you're
4 a consultant cardiologist.
5 MR McCANN: That's correct.
6 Q. And in terms of fixing ourselves back into the dates,
7 the abduction of your daughter, I think was it 3 May
8 2007?
9 A. That's correct.
10 Q. You tell us in your witness statement that a photograph
11 was made immediately available, provided to the
12 broadcast media and to the press, and was, as it were,
13 displayed everywhere. Is that correct?
14 A. There's two elements to that. The first element was
15 what we were doing on the night and obviously we had
16 digital cameras and we were trying to get photographs
17 printed of Madeleine from the holiday.
18 Q. Yes.
19 A. To give to the police, but secondly, a very good friend
20 of ours who we spoke to in the early hours of 4 May took
21 upon himself to issue photographs of Madeleine to all
22 the major media outlets in the UK.
23 Q. Within a very short space of time, the British press and
24 perhaps the international press had descended on
25 Praia da Luz; is that correct?
12
1 A. It is.
2 Q. And you had to make a decision as to whether to interact
3 with them and, if so, on what basis?
4 A. Yes.
5 Q. And what decision did you make and why?
6 A. The first thing to say is it was incredibly daunting.
7 We had been away all day. It was also apparent to us
8 whilst we were in the police station of Porto Mario(?)
9 in the Algarve that there was already extensive
10 coverage, particularly on Sky News, which was running in
11 the police station, somewhat bizarrely, and when we were
12 driving back towards the apartment, it was in the
13 evening and we could literally see tens, if not hundreds
14 of journalists outside the apartment and satellite vans,
15 et cetera, a large number of cameras.
16 There were two things going through my head: what
17 are they going to be saying? And we've seen, I think,
18 over many years our privacy being invaded and what
19 stories could be published, but ultimately, possibly
20 because we've seen the same thing being done in the UK,
21 I thought it was an opportunity to issue an appeal.
22 I was given no guidance one way or the other whether to
23 do that. I knew there could be a very heavy downside to
24 interacting, but I made the decision at the time with
25 the information I had that it would probably be in the
13
1 best interests of the search for our daughter, and
2 decided to interact.
3 Q. Yes. You say in your statement, paragraph 15, that in
4 the initial stages, your engagement with the press
5 worked well. Are you able to amplify that just a little
6 bit for us, please?
7 A. I think for those people who can remember, it was a very
8 unusual scenario, and we got a distinct impression that
9 there was a genuine want to help attitude from the
10 journalists there, and I think also many of the
11 executives who perhaps saw what had happened to us and
12 there was a huge amount of empathy. So I really did
13 feel early on there was a desire to help.
14 Q. As you explain, the position changed, but the segue
15 perhaps into that change is some evidence you give in
16 relation to the Portuguese criminal system. Now each
17 culture, each nation has a slightly different criminal
18 system, and obviously there can be no criticism about
19 that, but what you say in Portugal is that there is no
20 permitted interaction between the law enforcement
21 agencies and the press; is that correct?
22 A. That's correct.
23 Q. Do you have a view as to the possible drawbacks of that,
24 without necessarily being critical, but it's pretty
25 obvious it gives rise to the possibility of leaks,
14
1 doesn't it?
2 A. Sure. I think the system is open to abuse is the first
3 thing, and clearly there was a ferocious appetite and
4 perhaps in the United Kingdom with the SIO and the press
5 office for the constabulary leading the investigation
6 would have had a very clear agenda on how to work with
7 the media, what information could be disclosed, what
8 might be helpful, and steering journalists away from
9 certain areas.
10 Obviously there was none of that happening, and
11 there was tremendous pressure on the Portuguese
12 authorities to interact with the media, and some of you
13 may remember the very first time that happened, the
14 spokesperson gave a short statement that didn't really
15 say anything, was asked a number of questions and
16 followed every single one of them with, "I can't give
17 you any details because of judicial secrecy".
18 Q. Yes.
19 A. So there was a huge appetite, and we quickly realised
20 that there was a tremendous amount of speculation in the
21 coverage both in the newspapers and also you had 24-hour
22 news channels there constantly, and we found that to be
23 unhelpful.
24 Q. In terms of the conduit type of information, is this
25 correct, that whatever the strict legal position in
15
1 Portugal, information was being leaked by the Portuguese
2 police to the Portuguese press, that's stage one, and
3 having been leaked to the Portuguese press, the British
4 press then picked up on that self-same information,
5 that's stage two? Is that an accurate description?
6 A. I cannot tell you for certain that it was the Portuguese
7 police who were leaking information, but for anyone who
8 followed the headlines in July, August and September
9 2007, I think it would be a perfectly reasonable
10 assumption to make that elements of the inquiry were
11 speaking to the Portuguese police -- sorry, Portuguese
12 press. I do not know whether they were speaking
13 directly to the British media, but what we clearly saw
14 were snippets of information which as far as I was
15 concerned the British media could not tell whether it
16 was true or not, which was then reported, often
17 exaggerated and blown up into many tens, in fact
18 hundreds of front page headlines.
19 Q. The British press did not have the means of verifying
20 the information, but your complaint is that the
21 information was distorted and magnified; do I have it
22 right?
23 A. I think I'm complaining on all of the grounds, that they
24 didn't know the source, didn't know whether it was
25 accurate, it was exaggerated and often downright
16
1 untruthful and often I believe, on occasions, made up.
2 Q. We're going to cover the detail of that in a moment,
3 Dr McCann. Throughout the summer of 2007, the interest
4 of the British press was retained in the story, wasn't
5 it? They were constantly there in Praia da Luz; is that
6 right?
7 A. Yes. It did surprise us. Obviously after the initial
8 period, and I can understand that what we ended up doing
9 by having an international campaign was unprecedented,
10 but we did send a very clear signal, as the attention
11 focused more and more on Kate and myself, that the focus
12 should be on Madeleine and we fully expected, around
13 mid-June, for the British media to leave. We decided we
14 had to stay in Portugal to be close to Madeleine, to be
15 close to the investigation, and certainly didn't feel
16 capable of leaving at that point, so it did surprise us
17 that there was so much ongoing interest when there
18 really wasn't very much happening.
19 Q. In terms of the advice you were getting or not getting,
20 I'm going to put to one side the issue of the PCC into
21 a later sequence in your evidence, but you tell us in
22 your witness statement that there were two resources
23 available to you. Paragraph 21, first of all, someone
24 from Bell Pottinger who gave you assistance. Tell us
25 a little bit about that please and the value that person
17
1 was able to provide to you.
2 A. Yes, so Alex Woolfall who works for Bell Pottinger was
3 brought out really to deal with the media crisis
4 management specialist on behalf of Mark Warner, and at
5 that point he was leading the engagement with the media
6 who were present in Praia da Luz, and he was very
7 helpful. He just gave us some simple tips, which we've
8 tried to stick to, and that was: if you interact, what's
9 your objective, should be the question you ask yourself.
10 And how is it going to help? And obviously our
11 objective is to find Madeleine, and that's something
12 that we have tried to apply when we interact with the
13 media. Today is one of the exceptions, where it's not
14 the primary purpose of our engagement.
15 Q. Thank you. And you also mentioned someone called
16 Clarence Mitchell, who was seconded to the FCO as part
17 of the media liaison in Praia da Luz.?
18 A. Yes.
19 Q. And you fairly say that person's help was invaluable.
20 Is there anything you would wish to add in relation to
21 the assistance that person gave you?
22 A. I think at times we've been criticised for having
23 somebody to deal with the media, but the volume of
24 requests was incredible, both nationally and
25 internationally, and it was almost -- well, I don't know
18
1 how Clarence managed it in May and early June 2007, but
2 it was a full-time job just dealing with those requests
3 and it's been very important. As I said, we had no
4 prior media experience, but in terms of just shielding
5 us from the inquiries which were constant.
6 MRS McCANN: Gave us a little bit of protection, really.
7 MR McCANN: And obviously we were working very hard behind
8 the scenes, and let us spend some time with our family,
9 as well.
10 Q. In paragraph 24 of your statement, Dr McCann, you deal
11 with the suggestion, well, here you are dealing with the
12 press and then in parentheses, on your own terms, that
13 almost allows the press open season to deal with you on
14 their terms. Maybe I'm slightly over-exaggerating the
15 point, but in your own words, please, what is your view
16 about that suggestion?
17 A. Well, it has been argued on many occasions that by
18 engaging then it was more or less open season, and
19 I think it's crass and insensitive to suggest that by
20 engaging with a view to trying to find your daughter,
21 that the press can write whatever they want about you
22 without punishment.
23 Q. The next section of your statement deals with accuracy
24 of reporting and you point out that after a period of
25 time, there was little new news to report.
19
1 A. Yes.
2 Q. It may be at that point that the agenda started to morph
3 and in paragraph 27 you state "clearly it didn't take
4 long before innuendo started to creep in". Are you able
5 to elaborate on that, if you were to wish to?
6 A. Yeah, I mean I think there were two elements. The
7 reporting quickly became highly speculative, and often
8 stories -- for example, there must have been "McCann
9 fury" on the front page of many newspapers over that
10 summer that would quote an unnamed source or friends,
11 and unless our phones were hacked, which I don't think
12 they were, then these were made up because they were
13 simply not true.
14 So there was clearly pressure to produce a story.
15 The reporters who were based in Praia da Luz, first
16 thing they did each day was get the Portuguese press,
17 get it translated, and decide what they were going to
18 write about, and I don't think any of it was helpful.
19 Q. The date you give for the shift of the emphasis of the
20 media reporting is about June 2007, is it, but then you
21 feel the mood may have been moving or turning a bit in
22 the British press? Or perhaps a bit later than that?
23 A. Yeah, I mean obviously I think we've realised that if
24 you're in the spotlight for anything, then not
25 everything that's going to be written about you is
20
1 either going to be sympathetic or supportive, so we
2 quickly saw that what we thought may be a good thing to
3 do would be criticised. Whether it would be our
4 decision to go to Rome or not was criticised in certain
5 quarters. Even at the time for us it was very important
6 to us. So there was that element, and then there were
7 more sinister elements were starting to creep into the
8 reporting.
9 Firstly, the first really bad thing was an article
10 that was written in a Portuguese paper which was
11 entitled, "Pact of silence", and it was starting to
12 refer that there was some sort of sinister agreement
13 between us and our friends to cover up what had
14 happened, and I thought that was rather ludicrous,
15 considering that we were all acting under judicial
16 secrecy and couldn't speak about the details of the
17 event. But that -- it was probably towards the end of
18 June 2007, and slowly deteriorated through July,
19 culminating in September 2007.
20 Q. The real spate of offensive and objectionable material,
21 if I can be forgiven for using those epithets, starts in
22 September 2007 and runs on to January 2008, and we'll be
23 looking at those in a moment.
24 In paragraph 32, you make the general point that UK
25 press articles were often based on bits and pieces
21
1
2 (2.00 pm)
3 LORD JUSTICE LEVESON: Yes, Mr Jay.
4 MR JAY: Mr Rowland, we're on the issue of impact now and
5 you pick this up at paragraph 22 of your witness
6 statement.
7 A. Yes.
8 Q. In your own words, how would you characterise it?
9 A. Well, it's an intrusion, firstly. They have no right to
10 do that. It's appalling that it should happen. I had
11 a large number of really quite sensitive business
12 contacts that -- where it would be both embarrassing and
13 potentially awful for my business if this information
14 leaked out and it was traced back to me, and I felt that
15 there was also an element that -- I mean, I've never
16 worked for the News of the World, at that time I didn't
17 know any News of the World journalists, but if they
18 wanted to come and ask me something, then why was it
19 that they routinely got someone to hack my phone instead
20 of coming to me and asking?
21 Q. Press regulation. You've obviously thought about this
22 carefully and deeply. You give us the benefit of your
23 views in paragraph 23 in your witness statement and
24 following. You've, I think, heard a lot of the evidence
25 over the last few days. You've been taking a keen
1
1 interest in this Inquiry. What are your
2 recommendations, please?
3 A. Well, I mean, when I was at the Daily Telegraph, I did
4 a large number of investigative stories in a slightly
5 odd climate, because if you'll recall, the Telegraph at
6 the time was owned by Conrad Black, Lord Black, current
7 address Cell Block H somewhere in Florida. He was
8 forever, if you recall, buying and selling the newspaper
9 or shares in the newspaper. He was either privatising
10 it or floating it and that meant there was a constant
11 regime of due diligence going on and he was frightened
12 that having unresolved defamation actions on the book
13 would damage the potential valuation of the paper.
14 So there was a lot of moaning at the Telegraph among
15 the journalists that what they saw as innocuous pieces
16 that were routinely being put into other newspapers were
17 being held out of the Telegraph by the in-house
18 defamation lawyers. So it was a quite repressive, they
19 said, regime.
20 Now I wanted to get more investigative stories in,
21 if I possibly could, so I adopted a different approach,
22 which was to go along to the in-house defamation lawyers
23 and ask one simple question, which is what do I have to
24 do to this story in order for you to be happy to run it?
25 And they said, well, you know, you need to check all of
2
1 the sources, you need to make sure that you have proper
2 witness statements when you need it, you need to decide
3 all of the things that Alan Rusbridger was talking about
4 in the sort of lists of things that people do these
5 days. They were making sure I did.
6 It occurred to me that the mantra that exists at the
7 moment, the orthodoxy that more regulation or tighter
8 regulation of the press will inhibit press freedom
9 because journalists will have a lawyer standing at their
10 elbow at the time, actually is completely wrong. Having
11 a lawyer standing at your elbow improves the quality of
12 what you do because the lawyer is the only person in the
13 office, the defamation lawyer, who acts as a proper
14 quality control mechanism.
15 Everybody in a newspaper room think they know what
16 a good story is. There's very few regulatory mechanisms
17 there to say, well, is it fair? Is it accurate? And
18 has it been put to the people properly before you run
19 it? And because I went through that mechanism, I look
20 back at them now and I think actually they were very
21 good stories and part of the reason was I had all of
22 this great advice that was being given to me.
23 So when things did go to some extent wrong and
24 people complained and I was taken to the Press
25 Complaints Commission on three occasions -- I checked
3
1 with the PCC actually before this Inquiry started, and
2 I was the very first national newspaper journalist to be
3 exonerated in a PCC inquiry. And the reason I was
4 exonerated is because I'd had the stories lawyered
5 backwards, forwards, up and down, and they were as tight
6 as we could possibly make them.
7 I would argue that is an entirely beneficial
8 process.
9 I'd also say that I think there's been a disastrous
10 deterioration in the last ten years in a lot of ways
11 because more and more stories are written by freelance
12 journalists and they do not have the same access to the
13 same legal resources.
14 I'll give you an example. I worked for a long
15 time -- well, quite a long time, when they set up the
16 supplement I was talking about at the Mail on Sunday, so
17 I was a Mail on Sunday freelance journalist, and I was
18 put in the position of running stories where I thought
19 corners were being cut and I didn't have access to
20 proper legal advice before they were run, and there was
21 one particular occasion when -- it was a very high
22 profile -- I won't refer to the actual details of the
23 story, but it was as very high-profile couple who were
24 involved in some rather esoteric house purchases and
25 there was a whistle-blower and I was unsure about the
4
1 whistle-blower and I thought we needed to go back and do
2 some more checks, but they ran the story anyway. And
3 I and Mr Caplan down here, the barrister for the Mail on
4 Sunday, had to actually dig them out of the hole
5 afterwards, and I would argue that the freelance
6 journalists should have been talking to the lawyers
7 before it was published, not afterwards.
8 LORD JUSTICE LEVESON: All right.
9 MR JAY: Thank you very much, Mr Rowland. You've given your
10 evidence very clearly, thank you very much. May I just
11 check, is there anything you would wish to add?
12 A. Yes, there is one thing.
13 Q. Yes, okay.
14 A. When you had the seminars, sir, there was talk there
15 about press practices in the 1970s and how they've
16 improved greatly because of the regime that's been put
17 into place by the PCC. One of the examples that was
18 given was the theft of photographs, and I think it was
19 Mr Dacre, the editor of the Daily Mail, who said that
20 such a practice was outrageous and that it no longer
21 took place.
22 Well, I would disagree. I think that there are
23 many, many more photographs that are stolen these days,
24 but they're stolen electronically. It's not in my
25 evidence or my witness statement, but I had examples of
5
1 photographs that have been quite blatantly and
2 shamelessly stolen by national newspapers, not in the
3 1970s but almost within the last seven months.
4 The example I'm thinking about, I actually have an
5 audit trail, because I was involved in it, that I've
6 pieced together so you can see what was done and when,
7 or rather what wasn't done and when, and they just
8 sliced off the watermark on the bottom with the
9 copyright notice of the photographer, and then refused
10 to pay him. And that, in Mr Dacre's word, is actually
11 outrageous and it's an abuse that could be stopped by
12 a regime of punitive fines and that, I hope, is
13 something that the Inquiry will think about putting into
14 place.
15 I can make that photograph available to you, if you
16 think it might help, and put it into the record. I'm
17 prepared to do that.
18 LORD JUSTICE LEVESON: We'll decide whether we should put it
19 formally into the material that is read into the record.
20 Thank you very much indeed.
21 A. Okay.
22 LORD JUSTICE LEVESON: Thank you.
23 MR JAY: Thank you. I don't think we need a break. Shall
24 we move on to the next person?
25 LORD JUSTICE LEVESON: We don't need a break after seven
6
1 minutes, Mr Jay.
2 MR JAY: The next witnesses are Dr And Dr McCann, please.
3 DR GERALD PATRICK McCANN and DR KATE MARIE McCANN (sworn)
4 MR JAY: Thank you very much. First of all, I'm going to
5 invite each of you to provide us with your full names,
6 please.
7 MR McCANN: Gerald Patrick McCann.
8 MRS McCANN: Kate Marie McCann.
9 LORD JUSTICE LEVESON: Before we start, you've probably
10 heard me thank others before you for coming along,
11 voluntarily, to speak of matters which I have no doubt
12 are intensely personal and extremely sensitive, and I am
13 very, very grateful to you for doing so.
14 In your case, of course, nobody, and in particular
15 nobody with children, could fail to appreciate the
16 terrible impact of your daughter's abduction on you and
17 your family, so words of sympathy for these appalling
18 circumstances are utterly inadequate, but I am very
19 grateful to you for coming.
20 MR JAY: I know each of you would like your counsel to ask
21 a few preliminary questions. Before he does so,
22 formally can I invite you to confirm the contents of
23 your respective witness statements. You, Dr Gerald
24 McCann, there's a statement dated 30 October, and
25 there's a statement of truth at the end of it. Is that
7
1 correct?
2 MR McCANN: It is.
3 Q. And then Dr Kate McCann, a far more recent statement
4 referring to your husband's statement and again with
5 a statement of truth dated 22 November; is that right?
6 MRS McCANN: That's right.
7 MR JAY: Just a few questions from Mr Sherborne and then
8 I will proceed.
9 Questions by MR SHERBORNE
10 MR SHERBORNE: Thank you. As Mr Jay said, I'm going to just
11 ask you a few preliminary questions.
12 Everybody is well aware, particularly following the
13 submissions last week, that you've been forced to take
14 a number of legal complaints or actions as a result of
15 some of the coverage that you received following the
16 abduction of your daughter. Not just articles that were
17 published, but also to stop articles being published,
18 often on weekends, and I know that Mr Jay is going to
19 talk to you about that in due course.
20 Can I just ask you, though, have you ever had to
21 give evidence before?
22 MR McCANN: No.
23 Q. So this is the first and, I hope, the last time. Given
24 that you've had a lifetime of lawyers, nice ones, of
25 course, can you just explain to the Inquiry why you've
8
1 agreed to give evidence?
2 MR McCANN: I think it's for one simple reason, in that we
3 feel that a system has to be put in place to protect
4 ordinary people from the damage that the media can cause
5 by their activity, which falls well below the standards
6 that I would deem acceptable.
7 Q. Of course, we all here understand that your overriding
8 objective is the continuing search for your daughter.
9 We've seen from your statements, or we will see, once
10 the statements are publicly made available, that in
11 terms of reporting, you've experienced what I might call
12 the good, the bad and the particularly ugly side of the
13 press. One might ask this: is it helpful to have
14 Madeleine permanently in the public eye?
15 MR McCANN: I've talked about this on several occasions in
16 the past, and I do not feel it's helpful, and
17 particularly at the time when there were daily stories
18 running throughout 2007 and 2008. It became very
19 apparent to us early on there was an incredible amount
20 of speculation and misinformation. It led to confusion
21 amongst people. All we need to do is periodically
22 remind the public who have supported us so much that
23 Madeleine is still missing, there's an ongoing search
24 and those responsible for taking her are still at large
25 and have to be brought to justice.
9
1 MRS McCANN: I was just going to say obviously there was a
2 period when Madeleine was on the front page of a paper
3 every day, and I know occasionally people would say to
4 me "That has to be a good thing, hasn't it? She's in
5 the public eye", and that isn't the case because when
6 the story is so negative about her, and we'll come into
7 that, obviously then that is not helpful. As Gerry
8 said, I think it's a reminder that's important, that's
9 all.
10 Q. That's Madeleine. What about you both being in the
11 public eye? Is that helpful?
12 MR McCANN: I don't think it is helpful. Obviously we
13 realise that as Madeleine's parents, and particularly
14 given what's happened to us, that if we are delivering
15 the message, then it offers more appeal and is more
16 likely to get coverage. And of course we have also
17 acknowledged that the media have been very helpful on
18 occasion particularly when we have launched appeals, and
19 huge amounts of information have come into the inquiry
20 as a direct result of our appeals, and we'd like to
21 thank everyone in the public who have come forward.
22 Q. Finally can I ask you this: there are a number of
23 specific things you'll be asked about and Mr Jay is
24 going to take you through your statement, but it might
25 help Lord Justice Leveson and the Inquiry if you could
10
1 just outline in very general headline terms what your
2 concerns are about the culture, practices and ethics of
3 the press.
4 MR McCANN: I think there are four main areas I would be
5 keen to give evidence on that we have direct experience
6 of. One is obviously libel, which has been very well
7 publicised, but then also the lasting damage it causes.
8 Secondly, the privacy laws and current, I would say,
9 gaps in legislation at the minute where companies can
10 use photographs, can hound you, without your consent,
11 for commercial gain.
12 I think there has been contempt demonstrated by the
13 media, primarily the press but to some extent
14 broadcasters as well, both for the judicial process and
15 also at times Madeleine's safety. And the fourth thing,
16 which probably is not regulated by law and I hope this
17 Inquiry will deal with, is about what are acceptable
18 standards and how individual journalists and corporate
19 entities, editors and subeditors, are held to account.
20 MR SHERBORNE: I'm very grateful. If you wait there, Mr Jay
21 has more questions for you.
22 Questions from MR JAY
23 MR JAY: Dr McCann, I have an eye on those four themes and
24 if you don't mind, I'll come back to them at the end of
25 your evidence. Your witness statement is publicly
11
1 available and I can see it out of the corner of my eye
2 on a screen, but if you could have it in front of you in
3 print, you tell us in terms of your career you're
4 a consultant cardiologist.
5 MR McCANN: That's correct.
6 Q. And in terms of fixing ourselves back into the dates,
7 the abduction of your daughter, I think was it 3 May
8 2007?
9 A. That's correct.
10 Q. You tell us in your witness statement that a photograph
11 was made immediately available, provided to the
12 broadcast media and to the press, and was, as it were,
13 displayed everywhere. Is that correct?
14 A. There's two elements to that. The first element was
15 what we were doing on the night and obviously we had
16 digital cameras and we were trying to get photographs
17 printed of Madeleine from the holiday.
18 Q. Yes.
19 A. To give to the police, but secondly, a very good friend
20 of ours who we spoke to in the early hours of 4 May took
21 upon himself to issue photographs of Madeleine to all
22 the major media outlets in the UK.
23 Q. Within a very short space of time, the British press and
24 perhaps the international press had descended on
25 Praia da Luz; is that correct?
12
1 A. It is.
2 Q. And you had to make a decision as to whether to interact
3 with them and, if so, on what basis?
4 A. Yes.
5 Q. And what decision did you make and why?
6 A. The first thing to say is it was incredibly daunting.
7 We had been away all day. It was also apparent to us
8 whilst we were in the police station of Porto Mario(?)
9 in the Algarve that there was already extensive
10 coverage, particularly on Sky News, which was running in
11 the police station, somewhat bizarrely, and when we were
12 driving back towards the apartment, it was in the
13 evening and we could literally see tens, if not hundreds
14 of journalists outside the apartment and satellite vans,
15 et cetera, a large number of cameras.
16 There were two things going through my head: what
17 are they going to be saying? And we've seen, I think,
18 over many years our privacy being invaded and what
19 stories could be published, but ultimately, possibly
20 because we've seen the same thing being done in the UK,
21 I thought it was an opportunity to issue an appeal.
22 I was given no guidance one way or the other whether to
23 do that. I knew there could be a very heavy downside to
24 interacting, but I made the decision at the time with
25 the information I had that it would probably be in the
13
1 best interests of the search for our daughter, and
2 decided to interact.
3 Q. Yes. You say in your statement, paragraph 15, that in
4 the initial stages, your engagement with the press
5 worked well. Are you able to amplify that just a little
6 bit for us, please?
7 A. I think for those people who can remember, it was a very
8 unusual scenario, and we got a distinct impression that
9 there was a genuine want to help attitude from the
10 journalists there, and I think also many of the
11 executives who perhaps saw what had happened to us and
12 there was a huge amount of empathy. So I really did
13 feel early on there was a desire to help.
14 Q. As you explain, the position changed, but the segue
15 perhaps into that change is some evidence you give in
16 relation to the Portuguese criminal system. Now each
17 culture, each nation has a slightly different criminal
18 system, and obviously there can be no criticism about
19 that, but what you say in Portugal is that there is no
20 permitted interaction between the law enforcement
21 agencies and the press; is that correct?
22 A. That's correct.
23 Q. Do you have a view as to the possible drawbacks of that,
24 without necessarily being critical, but it's pretty
25 obvious it gives rise to the possibility of leaks,
14
1 doesn't it?
2 A. Sure. I think the system is open to abuse is the first
3 thing, and clearly there was a ferocious appetite and
4 perhaps in the United Kingdom with the SIO and the press
5 office for the constabulary leading the investigation
6 would have had a very clear agenda on how to work with
7 the media, what information could be disclosed, what
8 might be helpful, and steering journalists away from
9 certain areas.
10 Obviously there was none of that happening, and
11 there was tremendous pressure on the Portuguese
12 authorities to interact with the media, and some of you
13 may remember the very first time that happened, the
14 spokesperson gave a short statement that didn't really
15 say anything, was asked a number of questions and
16 followed every single one of them with, "I can't give
17 you any details because of judicial secrecy".
18 Q. Yes.
19 A. So there was a huge appetite, and we quickly realised
20 that there was a tremendous amount of speculation in the
21 coverage both in the newspapers and also you had 24-hour
22 news channels there constantly, and we found that to be
23 unhelpful.
24 Q. In terms of the conduit type of information, is this
25 correct, that whatever the strict legal position in
15
1 Portugal, information was being leaked by the Portuguese
2 police to the Portuguese press, that's stage one, and
3 having been leaked to the Portuguese press, the British
4 press then picked up on that self-same information,
5 that's stage two? Is that an accurate description?
6 A. I cannot tell you for certain that it was the Portuguese
7 police who were leaking information, but for anyone who
8 followed the headlines in July, August and September
9 2007, I think it would be a perfectly reasonable
10 assumption to make that elements of the inquiry were
11 speaking to the Portuguese police -- sorry, Portuguese
12 press. I do not know whether they were speaking
13 directly to the British media, but what we clearly saw
14 were snippets of information which as far as I was
15 concerned the British media could not tell whether it
16 was true or not, which was then reported, often
17 exaggerated and blown up into many tens, in fact
18 hundreds of front page headlines.
19 Q. The British press did not have the means of verifying
20 the information, but your complaint is that the
21 information was distorted and magnified; do I have it
22 right?
23 A. I think I'm complaining on all of the grounds, that they
24 didn't know the source, didn't know whether it was
25 accurate, it was exaggerated and often downright
16
1 untruthful and often I believe, on occasions, made up.
2 Q. We're going to cover the detail of that in a moment,
3 Dr McCann. Throughout the summer of 2007, the interest
4 of the British press was retained in the story, wasn't
5 it? They were constantly there in Praia da Luz; is that
6 right?
7 A. Yes. It did surprise us. Obviously after the initial
8 period, and I can understand that what we ended up doing
9 by having an international campaign was unprecedented,
10 but we did send a very clear signal, as the attention
11 focused more and more on Kate and myself, that the focus
12 should be on Madeleine and we fully expected, around
13 mid-June, for the British media to leave. We decided we
14 had to stay in Portugal to be close to Madeleine, to be
15 close to the investigation, and certainly didn't feel
16 capable of leaving at that point, so it did surprise us
17 that there was so much ongoing interest when there
18 really wasn't very much happening.
19 Q. In terms of the advice you were getting or not getting,
20 I'm going to put to one side the issue of the PCC into
21 a later sequence in your evidence, but you tell us in
22 your witness statement that there were two resources
23 available to you. Paragraph 21, first of all, someone
24 from Bell Pottinger who gave you assistance. Tell us
25 a little bit about that please and the value that person
17
1 was able to provide to you.
2 A. Yes, so Alex Woolfall who works for Bell Pottinger was
3 brought out really to deal with the media crisis
4 management specialist on behalf of Mark Warner, and at
5 that point he was leading the engagement with the media
6 who were present in Praia da Luz, and he was very
7 helpful. He just gave us some simple tips, which we've
8 tried to stick to, and that was: if you interact, what's
9 your objective, should be the question you ask yourself.
10 And how is it going to help? And obviously our
11 objective is to find Madeleine, and that's something
12 that we have tried to apply when we interact with the
13 media. Today is one of the exceptions, where it's not
14 the primary purpose of our engagement.
15 Q. Thank you. And you also mentioned someone called
16 Clarence Mitchell, who was seconded to the FCO as part
17 of the media liaison in Praia da Luz.?
18 A. Yes.
19 Q. And you fairly say that person's help was invaluable.
20 Is there anything you would wish to add in relation to
21 the assistance that person gave you?
22 A. I think at times we've been criticised for having
23 somebody to deal with the media, but the volume of
24 requests was incredible, both nationally and
25 internationally, and it was almost -- well, I don't know
18
1 how Clarence managed it in May and early June 2007, but
2 it was a full-time job just dealing with those requests
3 and it's been very important. As I said, we had no
4 prior media experience, but in terms of just shielding
5 us from the inquiries which were constant.
6 MRS McCANN: Gave us a little bit of protection, really.
7 MR McCANN: And obviously we were working very hard behind
8 the scenes, and let us spend some time with our family,
9 as well.
10 Q. In paragraph 24 of your statement, Dr McCann, you deal
11 with the suggestion, well, here you are dealing with the
12 press and then in parentheses, on your own terms, that
13 almost allows the press open season to deal with you on
14 their terms. Maybe I'm slightly over-exaggerating the
15 point, but in your own words, please, what is your view
16 about that suggestion?
17 A. Well, it has been argued on many occasions that by
18 engaging then it was more or less open season, and
19 I think it's crass and insensitive to suggest that by
20 engaging with a view to trying to find your daughter,
21 that the press can write whatever they want about you
22 without punishment.
23 Q. The next section of your statement deals with accuracy
24 of reporting and you point out that after a period of
25 time, there was little new news to report.
19
1 A. Yes.
2 Q. It may be at that point that the agenda started to morph
3 and in paragraph 27 you state "clearly it didn't take
4 long before innuendo started to creep in". Are you able
5 to elaborate on that, if you were to wish to?
6 A. Yeah, I mean I think there were two elements. The
7 reporting quickly became highly speculative, and often
8 stories -- for example, there must have been "McCann
9 fury" on the front page of many newspapers over that
10 summer that would quote an unnamed source or friends,
11 and unless our phones were hacked, which I don't think
12 they were, then these were made up because they were
13 simply not true.
14 So there was clearly pressure to produce a story.
15 The reporters who were based in Praia da Luz, first
16 thing they did each day was get the Portuguese press,
17 get it translated, and decide what they were going to
18 write about, and I don't think any of it was helpful.
19 Q. The date you give for the shift of the emphasis of the
20 media reporting is about June 2007, is it, but then you
21 feel the mood may have been moving or turning a bit in
22 the British press? Or perhaps a bit later than that?
23 A. Yeah, I mean obviously I think we've realised that if
24 you're in the spotlight for anything, then not
25 everything that's going to be written about you is
20
1 either going to be sympathetic or supportive, so we
2 quickly saw that what we thought may be a good thing to
3 do would be criticised. Whether it would be our
4 decision to go to Rome or not was criticised in certain
5 quarters. Even at the time for us it was very important
6 to us. So there was that element, and then there were
7 more sinister elements were starting to creep into the
8 reporting.
9 Firstly, the first really bad thing was an article
10 that was written in a Portuguese paper which was
11 entitled, "Pact of silence", and it was starting to
12 refer that there was some sort of sinister agreement
13 between us and our friends to cover up what had
14 happened, and I thought that was rather ludicrous,
15 considering that we were all acting under judicial
16 secrecy and couldn't speak about the details of the
17 event. But that -- it was probably towards the end of
18 June 2007, and slowly deteriorated through July,
19 culminating in September 2007.
20 Q. The real spate of offensive and objectionable material,
21 if I can be forgiven for using those epithets, starts in
22 September 2007 and runs on to January 2008, and we'll be
23 looking at those in a moment.
24 In paragraph 32, you make the general point that UK
25 press articles were often based on bits and pieces
21
Re: Leveson Inquiry - Video & Transcript
1 picked up from Portuguese articles, transmuted from
2 supposition into fact; is that right?
3 A. Yeah, absolutely. And I think one of the articles that
4 springs to mind actually was a piece in a Portuguese
5 newspaper where somebody was talking to the prosecutor
6 and was asking what he thought had happened and there
7 was a quote saying he didn't know whether Madeleine was
8 alive or dead, and I think the following line was
9 "probably dead", and that translated into the front page
10 of the Daily Mirror with a photograph of Madeleine with
11 a headline, "She's dead", which we saw at 11 o'clock at
12 night, we were trying to go to bed. Obviously that was
13 one of the most distressing headlines, it was presented
14 as if it's factual, and it was just taken from that
15 supposition, I don't know, probability. It's
16 incredible.
17 Q. One key event in this narrative is you becoming, if
18 I pronounce it right, arguido, under Portuguese law,
19 which occurred on 7 September 2007, and this is
20 paragraph 34 of your witness statement. To be clear
21 about it, and you'll correct me if I'm wrong because you
22 know more about this than me, arguido does not mean
23 "suspect", it means "person of interest"; is that
24 correct?
25 A. That's what we were advised was the closest correlation
22
1 or translation within UK law at the time, and I think it
2 is probably important to emphasise that as a witness in
3 Portugal at that time you were not entitled to any legal
4 representation. So if the police wanted to ask any
5 question, which your answer may give incriminating
6 evidence, then they must declare you arguido, then you
7 were entitled to have a lawyer there. And in many ways
8 you could argue that all parents of a missing child,
9 certainly those who would have been the last to see
10 them, could have to answer questions like that. So
11 being labelled arguido was not necessarily such a bad
12 thing.
13 However, I will acknowledge that there were leaks by
14 elements of the investigation team which clearly were
15 trying to portray that there was strong evidence that
16 Madeleine was dead and that we were involved.
17 Q. Maybe there are two points here. The first point is the
18 obvious one that needs to be stated. There isn't an
19 equivalent concept of arguido in English law?
20 A. No. And I think the aspect on that is we've never been
21 arrested, we've never been charged with anything. We've
22 never stood trial.
23 Q. Do you happen to know whether under Portuguese law they
24 have a category of suspect?
25 A. I think it is loosely used, but you could have multiple
23
1 arguidos within any investigation, and at that time, the
2 title "arguido" stayed with those involved until the
3 file was closed.
4 Q. Do you think, rightly or wrongly, the British press
5 somehow interpreted "arguido" as equivalent to
6 "suspect", which carried with it, therefore, its own
7 connotations?
8 A. Yes. I mean clearly the word was used that way almost
9 exclusively.
10 Q. At this point we are in the late summer, obviously, or
11 early autumn of 2007. If I can move you forward to
12 paragraph 39 of your statement. You're making the point
13 that the story in terms of objective fact is beginning
14 to run dry and reporters now are thrashing around for
15 something new.
16 A. I think it's probably worth just clarifying that within
17 ten days of being made arguidos, the prosecutor made an
18 announcement that all lines of inquiry, including the
19 abduction of Madeleine, were open and no charges were
20 being brought at that time, but that didn't stop the
21 continued reporting of inaccurate, untruthful and
22 incredibly damaging reports.
23 Q. From the perspective of the newspaper and the sort of
24 economic calculation they may wish to conduct -- you
25 deal with this in paragraph 39 -- but you have evidence
24
1 that this story was, at least in the opinion of those
2 running one of the newspapers, boosting their
3 circulation figures. Is that right?
4 A. I think that's clear, and Peter Ellis testified that to
5 the Parliamentary Select Committee.
6 Q. The specific tone of the articles changes in September
7 2007. We're going to look at that particularly in
8 a moment. In paragraph 40, however, you refer to one
9 piece in the Evening Standard, which is I think the very
10 day you were declared arguidos, 7 September 2007:
11 "Police believe mother killed Maddie."
12 A. Mm.
13 Q. Was that the first time that point was made so baldly
14 and so falsely?
15 A. There's been so many headlines of similar gravity that
16 I can't tell you honestly whether that was the first
17 time.
18 MRS McCANN: I think that may have been the first time it
19 was in a headline. In August 2007, we were told by
20 a BBC journalist, in fact he stopped us and said, "Have
21 you seen what's getting reported? They're saying
22 there's blood in the apartment, they're saying that you
23 were involved. Madeleine's been killed and you were
24 involved." So actually it was stirring up in August
25 2007, but I think the headlines like that became very
25
1 prominent once we were made arguidos.
2 Q. Then you refer to two articles in the Daily Mail which,
3 unless I've missed something, we don't have available
4 today, but the first one published in September 2007 you
5 summarise in paragraph 41, the subheading:
6 "I pray the Portuguese police are careering down the
7 wrong track, but from the start a terrible nagging doubt
8 has refused to leave me."
9 That, for what it's worth, was corrected by another
10 piece as late as 4 May 2009, which you deal with in
11 paragraph 43; is that correct?
12 MR McCANN: It is. I should probably clarify that
13 paragraph 41 refers to Kate rather than myself, but yes,
14 that's correct.
15 Q. In paragraph 46, you deal with a theme which you're not
16 the first to address, namely presence of photographers.
17 We know, of course, that you came home at a certain
18 point, I can't remember precisely when it was, but once
19 you're home, you then have photographers outside your
20 home. Can you just tell us a little bit about that, and
21 in particular the impact that had on you?
22 A. I think the first thing probably to say is it started
23 when we said we were leaving Portugal, which we'd
24 already told the police we were going to leave before we
25 were declared arguidos, and the journey to the airport
26
1 was one of the most terrifying experiences, I think,
2 anyone could have, where cars were coming across,
3 cutting in front, cameras, people hanging out of
4 windows, motorbike riders. It was just dangerous,
5 frankly dangerous.
6 When we got back to our home in Rothley, again there
7 were tens of journalists -- we live in a cul de sac, at
8 the end of it -- camped outside our house, cameras,
9 helicopter crews following us. We were hemmed in the
10 house for a couple of days before the police moved them
11 to the end of our drive.
12 Q. Then you tell us that photographers were still banging
13 on car windows, even with one or more children in the
14 car; is that right?
15 MRS McCANN: And they stayed there until December 2007.
16 That was only after we had help to get them removed, but
17 they were there every day, and they'd wait for Gerry to
18 go and they knew I'd have to come out of the house at
19 some point with the children. It would be the same
20 photograph every day, we'd be in the car, myself and two
21 children, the photographers would either spring out from
22 behind a hedge to get a startled look that they could
23 attach "fragile", "furious", whatever they wanted to put
24 with the headline, but there were several occasions
25 where they would bang on the windows, sometimes with the
27
1 camera lenses, and Amelie said to me several times,
2 "Mummy, I'm scared."
3 MR McCANN: I'd like to point out the twins at that time
4 were still only two and a half years old. Very
5 frightened.
6 Q. You deal with two further matters, perhaps less serious
7 than this, because what you've told us of course is
8 a plain breach of the code, that we may come to in due
9 course.
10 There was a photograph of you, Dr Gerald McCann, on
11 the golf course, which obviously is a private place, and
12 then the distortion of photographs of you, Dr Kate
13 McCann, to present, no doubt, a certain image. Often
14 coupled with the adjectives "frail" or "fragile", which
15 you've told us about.
16 In terms of the effect on you, you described it, and
17 of course it will be obvious to us, but looking more
18 broadly, the effect on the continuing investigation,
19 which after all is your primary focus then, as it is
20 now, are you able to quantify that for us and describe
21 it?
22 A. Well, I think from -- reputational aspects aside, the
23 distress that was caused to us was the clear message
24 that was going out nationally throughout Europe and
25 internationally was that there was very strong evidence
28
1 that our daughter was dead and that we were somehow
2 implicated in her disappearance, and we knew that if
3 people believed that, then there couldn't be
4 a meaningful search, and it was incredible. And any
5 aspects of campaigning for a search with what happened
6 to us and how it was portrayed in the media meant we
7 were completely hamstrung in our ability to counter
8 anything.
9 MRS McCANN: These were desperate times. You know, we were
10 having to try and find our daughter ourselves. We
11 needed all the help we could get, and we were faced
12 with -- I know we'll come on to headlines, but "Corpse
13 in the car"; I don't know how many times I read "Body
14 fluids in the car". And it gets repeated that often, it
15 becomes fact. There were no body fluids. We
16 desperately wanted to shout out "It's not true, it's not
17 true", but when it's your voice against the powerful
18 media, it just doesn't have a weight. We were
19 desperately shouting out internally "Please stop, what
20 are you doing? We're trying to find our daughter and
21 you're stopping our chances of finding her".
22 MR McCANN: The point being, which I alluded to earlier, is
23 that we were told in no uncertain terms that if we
24 disclosed anything publicly which we knew to be in the
25 judicial file, ie the results which had been shown to
29
1 us, which we knew were not what was being reported about
2 DNA, then we were threatened with a two-year
3 imprisonment for breaking judicial secrecy, so we were
4 being tried by the media and unable to defend ourselves
5 adequately.
6 Q. You tell us in your statement a series of steps which
7 were taken to try and abate this flood. Can I try and
8 summarise it in this way? First of all, a meeting is
9 organised with the editors of the major UK tabloid
10 newspapers. That's in September 2007, when a clear
11 message was put out to them, and you tell us that had a
12 transient effect. It's paragraph 53 of your witness
13 statement.
14 A. Sure. I think there's two elements. Within the first
15 week of being back, we had appointed solicitors,
16 Kingsley Napley, and Angus McBride, who is one of the
17 solicitors who represented us at that time, he thought
18 it was very important that he would -- we should try and
19 modify the content of the press articles, and he went
20 with Justine McGuinness, who was campaign manager at
21 that point, and met with all the editors from the major
22 newspapers and emphasised to them that it was his strong
23 belief that there was no evidence to support what they
24 were reporting. But it seemed to have very little
25 effect.
30
1 In fact, I think Kingsley Napley then pressurised
2 Leicestershire police to write to the broadcasters and
3 editors, and there's a letter from Matt Baggott, who was
4 Chief Constable at that time, urging restraint and
5 saying there was very inaccurate reporting.
6 We organised another round of meetings with Angus
7 and Clarence, who then came back to work for us later on
8 in September 2007, and that was followed up with another
9 letter from the Chief Constable, I think on 17 October,
10 if my memory --
11 LORD JUSTICE LEVESON: 8 October.
12 A. Thank you. Failed.
13 MR JAY: 17 September, 8 October.
14 A. And obviously these things were done because the
15 coverage was continuing such a bad way.
16 Q. You identify the worst offenders, and we'll be looking
17 at this quite carefully in a moment, amongst the
18 Express Group newspapers, which included the Daily Star
19 and the Daily Express, the Sunday Express and the
20 Sunday Star?
21 A. Yes.
22 Q. Did there come a point when warnings were given by your
23 lawyers in the context of possible claims in defamation,
24 by which I mean libel?
25 A. Yes. Kingsley Napley had written to the Express Group
31
1 twice, explicitly, telling them that they were on
2 notice, that we felt that the content of the articles
3 was libellous, and we reserved the right to take action.
4 Then I think what you see in paragraph 66 is
5 a series of articles produced in January 2008 over
6 a very short period of time, rehashing largely, but with
7 other things come on, and I think it's important to
8 emphasise we had met with Adam Tudor from Carter Ruck,
9 who is as you know a libel specialist, and we had talked
10 about legal action, which for us was always a last
11 resort. We felt we had a more important battle to
12 fight, which was finding our daughter, but we felt that
13 it was our only course of action open to us at that
14 point that would stop it.
15 MRS McCANN: And I think it's important to emphasise, again,
16 some of the headlines that we faced. They were
17 incessant. And they're not just slight inaccuracies.
18 I mean, "It was her blood in parents' hire car".
19 Totally untrue.
20 Q. Let's look at some of these articles, please. What I'm
21 going to do is invite your attention first of all to
22 GM2, which is a schedule you have prepared, with
23 directly underneath it articles in the Daily Express,
24 specifically. These run from 27 September 2007 to
25 22 January 2008. The ones you have specifically
32
1 identified in paragraph 66 of your witness statement we
2 can look at, but first of all, we can get the flavour of
3 some of the headlines.
4 9 October 2007: "DNA puts parents in frame.
5 British experts insist their tests are valid".
6 17 October 2007: "Parents' hire car hid a corpse.
7 It was under carpet in boot, say police".
8 Then "Priest: I was deceived".
9 I haven't counted them up, but there are probably
10 about 25 similar pieces running over a three or
11 four-month period.
12 Let's just look at some of them, if you don't mind.
13 MR McCANN: Sure.
14 Q. We're in GM2, and the first of them --
15 LORD JUSTICE LEVESON: We're not intending to put these on
16 the website, are we, Mr Jay?
17 MR JAY: Well, if there's a problem, we won't. I didn't
18 understand there to be, but at the moment these are not
19 on any website, no.
20 LORD JUSTICE LEVESON: No. I just don't particularly want
21 to give greater prominence or currency to articles that
22 have caused enough distress in their time.
23 MR JAY: Yes.
24 LORD JUSTICE LEVESON: By all means refer to them and that
25 can be part of the evidence, but it seems to me that's
33
1 sufficient.
2 Are you content with that approach?
3 A. Obviously the articles themselves have been pulled, but
4 they are -- their contents have been widely disseminated
5 through many blogs, as you're probably well aware, but
6 we have no issue with discussing the content.
7 MR JAY: Yes. I think the best thing to do, unless someone
8 says I should adopt a different course, is I'm not going
9 to ask for the articles to be put on the screen, but I'm
10 just going to refer to the articles and we can bring out
11 maybe one or two points. If at any point you tell me
12 no, you don't want me to proceed down a particular
13 road --
14 A. Sure.
15 Q. -- of course I won't. So I'll do this as quickly and as
16 lightly as I can, Dr McCann, just to give the flavour.
17 If you look, please, at the internal numbering, it's
18 page 10 of GM2.
19 A. Yes.
20 Q. There's an article:
21 "It was her blood in parents' hire car, new DNA
22 tests report".
23 The overall flavour or thrust of this article was
24 that there was DNA evidence which linked your daughter
25 with a hire car. What do you say about that? I'm sure
34
1 you have a lot to say about it, but in a nutshell --
2 A. The first thing to say is it's simply untrue.
3 Madeleine's DNA was not uncovered from the hire car,
4 that's the first thing.
5 Q. Yes.
6 A. The inference from this is, and I think the public who
7 think that DNA is a very strong evidence in cases would
8 take this to mean, absolutely, that Madeleine was in the
9 hire car that we hired more than three weeks after she
10 disappeared. It's incredible.
11 LORD JUSTICE LEVESON: Interestingly enough, what they're
12 doing is reporting a newspaper as saying that, so that's
13 how it comes out. A Portuguese newspaper.
14 A. Well, often you'll find that there would be something
15 down in the article. They weren't published in the
16 prominence that they were in these papers. And no way
17 of checking the source, which is a recurring theme.
18 These are all sources, unnamed sources in the original
19 articles.
20 MR JAY: If we move, please, to page 15, the headline reads:
21 "Madeleine: McCanns are main suspects, say police."
22 Was that correct?
23 A. Well, the police weren't speaking to the media under
24 judicial law, and we haven't had any of the police
25 identified who have given these statements. I would
35
1 like to know who they are. Perhaps they could face
2 contempt of court proceedings.
3 Q. Okay. Page 17, this is another headline you refer to in
4 paragraph 66:
5 "Priest 'bans' Madeleine. He takes down posters as
6 Praia da Luz" and then I think this should be open
7 inverted commas "wipes her from its memory."
8 What's the innuendo there? It's pretty obvious.
9 A. It is, and I think the key thing here is obviously that
10 the Church community in Praia da Luz were incredibly
11 supportive to Kate and I spiritually.
12 MRS McCANN: And still are.
13 MR McCANN: And at that point they continued to hold
14 a weekly vigil for Madeleine, so obviously saying that
15 the town and the Portuguese locals had turned their back
16 on us was a clear innuendo from this article, which
17 again was not true.
18 Q. In GM3, if we can quickly navigate our way through that,
19 this is another schedule of articles; this time,
20 however, we're looking at the Daily Star and the
21 Daily Star Sunday. There's a similar number of
22 articles, really. No, it's more. Maybe about 50 of
23 them. What is similar is the broad dates, from
24 27 September 2007 to 22 January 2008.
25 Two of the articles you specifically referred to in
36
1 your evidence, we can just quickly alight on them. Look
2 at page 117, please, Dr McCann. An article in the
3 Daily Star on 26 November 2007:
4 "Maddie 'sold' by hard-up McCanns."
5 This is the article you do refer to, the selling
6 into white slavery allegation. Probably you don't want
7 to dignify that with a comment?
8 A. That's nothing short of disgusting.
9 MRS McCANN: I think this same journalist, if memory serves
10 right, also said we stored her body in a freezer.
11 I mean, we just ...
12 Q. The final one, I've read all of these, Dr McCann, last
13 night. We could look at all of them. These are
14 representative.
15 LORD JUSTICE LEVESON: Just to make the comment, there's
16 absolutely no source for that assertion in that article.
17 MR McCANN: No.
18 MR JAY: There's a generic reference to a bombshell new
19 police theory, but completely non-attributed.
20 LORD JUSTICE LEVESON: Yes. Sorry.
21 MR JAY: Probably entirely made up.
22 Page 132. In capitals:
23 "She did die in hol [short for holiday probably]
24 flat; blood traces [in capitals] are Maddie's, car
25 fluids [again in capitals] are from corpse" and then
37
1 "-- cops: body had been moved."
2 And then there's a reference to a possible grilling
3 by the British police, they have sensational new
4 evidence. Are you going to dignify this with a comment
5 or not?
6 A. I mean, you can, I hope, understand why we felt we had
7 to take proceedings from the severity and consistency of
8 the allegations being made.
9 Q. Can we deal now with the proceedings? If you want me to
10 go further through the schedule, through the articles,
11 please let me know. I detect you probably don't. We
12 have enough of a flavour; is that right, Dr McCann?
13 A. Mm.
14 Q. But what happened next, your solicitors have become
15 involved, letters before action had been sent. To pick
16 up the story at paragraph 68, you say that on 7 February
17 your solicitors were contacted by the Express, and they
18 proposed some sort of deal with you. Can you tell us
19 about their proposal?
20 A. It was pretty much said because we were arguidos, they
21 couldn't agree to our complaint, but they did suggest
22 that we did an interview with OK magazine, which we
23 found rather breath-taking.
24 Q. Right. It goes without saying that that offer was not
25 accepted and matters proceeded. Paragraph 69, the
38
1 Express by now had taken expert advice and they now
2 indicated that their articles were defamatory; is that
3 right?
4 A. Yes.
5 Q. Could you give us a sense of the timescale here? The
6 first offer from the Express was 7 February, this was
7 the Hello magazine offer, but when did the admission of
8 wrongdoing, as it were, come in?
9 A. It did drag out a bit. I can't give you the exact
10 dates. I do have it on file. But there was an
11 acknowledgment that they might be prepared to make an
12 apology and also consider damages. We wanted to make
13 sure that those damages reflected the seriousness of
14 what they had published and it was -- to be honest, the
15 damages for us were a secondary consideration. It was
16 more about getting a front page apology to send a clear
17 message that we wouldn't tolerate these ongoing
18 allegations in other newspapers either.
19 Q. The statement in open court was read out on 19 March
20 2008.
21 A. Mm.
22 Q. £550,000 was paid to Madeleine's Fund, and there was
23 also an apology on the front page, is this right, both
24 of the Express and of the Star? Or is it just the
25 Express?
39
1 A. No, both.
2 LORD JUSTICE LEVESON: Express Newspapers, and given that
3 we've gone into it, it's probably sensible just to read
4 that:
5 "In addition to the allegations referred to above,
6 the Daily Star published further articles under the
7 headlines which sought to allege that Mr and Mrs McCann
8 had sold their daughter in order to ease their financial
9 burdens. A further article alleged that Mr and
10 Mrs McCann were involved in swinging or wife swapping.
11 As the defendant now acknowledges, all of these
12 allegations were and remain entirely untrue. In
13 particular, there is no evidence whatsoever to suggest
14 that Mr and Mrs McCann were responsible for the death of
15 their daughter, they were involved in any sort of
16 cover-up and there was no basis for Express Newspapers
17 to allege otherwise.
18 "Equally, the allegations that Mr and Mrs McCann may
19 have sold Madeleine or were involved in swinging or wife
20 swapping were entirely baseless. Naturally the repeated
21 publication of these utterly false and defamatory
22 allegations have caused untold distress to Mr and
23 Mrs McCann. Indeed, it is difficult to conceive of
24 a more serious allegation."
25 That just provides some context.
40
1 A. Thank you.
2 MR JAY: What may be worthy of consideration though is the
3 possible rapidity of change of stance. On the one hand,
4 they were maintaining their articles, they get leading
5 counsel's advice, then all of a sudden they say it's all
6 entirely wrong and maybe it's worth a consideration how
7 and why that volte face occurs.
8 LORD JUSTICE LEVESON: Could you tell me this. They
9 presumably published something as well. Where was it
10 published?
11 A. The apologies?
12 LORD JUSTICE LEVESON: Yes.
13 A. They were on the front page. We insisted. And we would
14 have gone to court to get that.
15 LORD JUSTICE LEVESON: Do we have that?
16 MR JAY: I don't think we have the text of the apologies on
17 the front page, do we?
18 A. Not the full apology.
19 LORD JUSTICE LEVESON: All right.
20 MR JAY: We can look at those, if necessary.
21 You deal with the issue of exemplary damages,
22 punitive damages in paragraph 71.
23 A. Yes.
24 Q. But you decided in the end not to pursue those; is that
25 correct?
41
1 A. It is. We were told that we had, after taking counsel's
2 advice, that we would be very likely to be successful in
3 such a claim, and my understanding of that was that
4 there would be a very strong argument that Express Group
5 Newspapers knew that the allegations, or many of them,
6 were unfounded or certainly couldn't prove any of them,
7 and despite the steps we had taken from September 2007
8 through to issuing proceedings made it very clear there
9 was no evidence to back it up, that we could only assume
10 they were acting for profit.
11 Q. After these matters -- we're now in March of 2008 -- the
12 answer to the question may be fairly obvious, but were
13 there any further objectionable articles in the British
14 press?
15 A. There was certainly a dramatic sea change within Express
16 Group Newspapers and I think largely the coverage has
17 been much more responsible and balanced. It doesn't
18 mean that there hasn't been articles published which are
19 untruthful. They may not be libellous or defamatory,
20 some of them, and we've had to have certain articles
21 pulled, but there was a clear change. With hindsight,
22 I wish we'd taken action earlier.
23 Q. In paragraph 76, you deal with related litigation
24 involving your friends, I believe, who were with you on
25 holiday. Can I take this point quite shortly, that they
42
1 too recovered damages?
2 A. Yes.
3 Q. I think in total the amount was £375,000.
4 A. That's correct.
5 Q. But so it's clear, I've been asked to draw this from
6 you, that the defendant to the proceedings brought by
7 your friends was again Express Newspapers?
8 A. That's correcting.
9 Q. Or their publishers. The Sun reported it, although the
10 Sun themselves, to be absolutely clear, were not the
11 defendants, they hadn't defamed you. They reported
12 those settlements, I'm told, at page 25, and there were
13 similar reports in the Daily Mirror. But so there's no
14 doubt about it, the Sun and the Daily Mirror are not the
15 defamers. They are reporting what's happened in
16 relation to proceedings brought by other organs of the
17 press.
18 Paragraph 78 to 80, Associated Newspapers, please.
19 You made a further libel complaint in July of 2008 in
20 relation to coverage in the Daily Mail and the Evening
21 Standard. Can we be clear which articles these relate
22 to, since you don't specify it in paragraph 79? Do
23 I have this right? Are you referring back to the
24 article at paragraph 40 of your witness statement,
25 Dr McCann?
43
1 A. There had been a large number of articles, similar tone
2 to the ones that we had complained of previously, so it
3 was more again about DNA, blood, suspects, Madeleine
4 being killed, et cetera, rather than anything else.
5 Paragraph 40 --
6 Q. You identify one article in the Evening Standard
7 published on 7 September 2007.
8 A. Sure. There were many similar articles like that,
9 particularly in the Evening Standard at that time.
10 MRS McCANN: The corpse in the car was the Evening Standard,
11 I think.
12 Q. In a nutshell, what was the outcome of these libel
13 proceedings?
14 MR McCANN: We did settle. They paid damages and there was
15 an apology published in the Evening Standard. The
16 Daily Mail did not publish an apology.
17 Q. One point you make, these libel proceedings were brought
18 with the benefit of conditional fee agreements; is that
19 correct?
20 A. Yes. I think it's very important, given the scale of
21 the task that faced us, and we were given -- we made our
22 decisions after being fully informed of the pathway, and
23 I think that's very important. It was a last resort.
24 And at the time, given our circumstances, I do not
25 believe we would have had the resource to go down that
44
1 path if it wasn't for a CFA being in place.
2 LORD JUSTICE LEVESON: This is going to be your choice. It
3 won't happen to anybody else, but it will be your
4 choice. If you'd like a break for five minutes, we'll
5 have it. If you prefer to carry on, we'll carry on.
6 A. I'm happy to carry on.
7 LORD JUSTICE LEVESON: Right. I ought to say, I've
8 confirmed it with the shorthand writer.
9 MR JAY: There's a fair bit more, I don't want to rush this,
10 but we'll see how we get on.
11 Paragraph 82, the first anniversary. You explain
12 that you agreed to an interview with Hello magazine.
13 Just tell us a bit, please, about why you did that?
14 A. I think the first thing to say, it was very specific and
15 we had -- clearly we've talked about our prime
16 objective, which is finding Madeleine, and what we've
17 hoped is that some good would come out of what happened
18 to us. And one of the things, through our own research
19 and having been to the National Centre for Missing and
20 Exploited Children in the USA, was to talk about
21 AMBER Alert, and we decided that we would start
22 campaigning for a joined-up alert system for missing
23 children within Europe, particularly on the continent of
24 Europe.
25 For that very specific reason, because Hello is
45
1 distributed, I think, in 14 European countries, they did
2 approach us and said that they would promote the
3 campaign, and at the time we were lobbying MEPs to sign
4 declarations supporting an alert system, so we agreed to
5 do an interview on that basis, which, just for clarity,
6 of course, we were not paid for.
7 MRS McCANN: Many of the media outlets didn't really want to
8 run with the work we were doing for the child rescue
9 alert, which in itself is disappointing because it is
10 important but obviously it's not as exciting, or
11 whatever the word is, when it comes to headlines and
12 stories. So we saw this as an opportunity of improving
13 things for the greater good really.
14 Q. One rival however wasn't best pleased and you touch on
15 this in paragraph 84. Maybe this is quite
16 understandable, but tell us a little bit about the call
17 you received from the then editor of the
18 News of the World.
19 MR McCANN: I think it would be fair to say that Mr Myler
20 was irate when he learned of the publication which
21 happened and was berating us for not doing an interview
22 with the News of the World and told us how supportive
23 the newspaper had been, the news and rewards, and a time
24 of stress for us on the first anniversary, where we were
25 actually launching a new campaign, we were still
46
1 arguidos at the time, a new call number for people to
2 come forward so we could continue the search for our
3 daughter, and we were interacting with the media to get
4 that message out.
5 He basically beat us into submission, verbally, and
6 we agreed to do an interview the day after.
7 MRS McCANN: Can I just emphasise, this is at an extremely
8 stressful time. It was the run-up to one year of not
9 having our daughter with us. Emotionally as well as
10 logistically, everything we were trying to do, it was
11 incredibly hard. So to get a call like this, and you
12 actually almost feel guilty, you know, because they're
13 saying, "We helped you, we got a reward", and you almost
14 say, "I'm sorry", and it's almost like somebody won't
15 help you unless you give something back.
16 MR McCANN: And of course we were trying to make the
17 distinction between interacting with the media for what
18 we thought was something helpful for the search, and
19 simply doing an interview, which we knew would focus on
20 the human interest aspects and not necessarily the
21 search for Madeleine.
22 Q. The News of the World come into the narrative a few
23 months later, as you rightly say at paragraph 86. It
24 may be that Dr Kate McCann would like to deal with this,
25 but I'm in your hands. Out of the blue, 14 September
47
1 2008, transcripts from your personal diary appear or
2 purport to appear in the News of the World. Can you
3 tell us a bit about that, please?
4 MRS McCANN: You're right, this was totally out of the blue.
5 It was Sunday lunchtime, we'd just got back from church
6 and I got the text message from Gail, who works in the
7 nursery where Madeleine, Sean and Amelie went, and it
8 just said, "Saw your diary in the newspapers.
9 Heartbreaking. I hope you're all right." And it was
10 totally out of the blue, and I had that horrible panicky
11 feeling, confusion and, you know, what's she on about?
12 I didn't have a clue. We rapidly found out, it was the
13 News of the World. I went and looked at it online,
14 which was five pages, including the front page. I got
15 my original handwritten copy of my diary out and sat
16 there, and it was lifted in its entirety and put in the
17 newspaper without my knowledge. Apart from the odd
18 word, which was -- I think it was a translational error,
19 that had obviously been taken -- translated into
20 Portuguese, and then a Portuguese copy had then been
21 translated back to English, which was slightly different
22 from the original, but pretty verbatim and it had been
23 put there.
24 I felt totally violated. I'd written these words
25 and thoughts at the most desperate time in my life, most
48
1 people won't have to experience that, and it was my only
2 way of communicating with Madeleine, and for me, you
3 know, there was absolutely no respect shown for me as
4 a grieving mother or as a human being or for my
5 daughter, and it made me feel very vulnerable and small
6 and I just couldn't believe it.
7 It didn't stop there. It's not just a one-day
8 thing. That whole week was incredibly traumatic and
9 every time I thought about it, I just couldn't believe
10 the injustice. I actually just recently read through my
11 diary entries at that point at that week and I talk
12 about climbing into a hole and not coming out because
13 I just felt so worthless that we'd been treated like
14 this.
2 supposition into fact; is that right?
3 A. Yeah, absolutely. And I think one of the articles that
4 springs to mind actually was a piece in a Portuguese
5 newspaper where somebody was talking to the prosecutor
6 and was asking what he thought had happened and there
7 was a quote saying he didn't know whether Madeleine was
8 alive or dead, and I think the following line was
9 "probably dead", and that translated into the front page
10 of the Daily Mirror with a photograph of Madeleine with
11 a headline, "She's dead", which we saw at 11 o'clock at
12 night, we were trying to go to bed. Obviously that was
13 one of the most distressing headlines, it was presented
14 as if it's factual, and it was just taken from that
15 supposition, I don't know, probability. It's
16 incredible.
17 Q. One key event in this narrative is you becoming, if
18 I pronounce it right, arguido, under Portuguese law,
19 which occurred on 7 September 2007, and this is
20 paragraph 34 of your witness statement. To be clear
21 about it, and you'll correct me if I'm wrong because you
22 know more about this than me, arguido does not mean
23 "suspect", it means "person of interest"; is that
24 correct?
25 A. That's what we were advised was the closest correlation
22
1 or translation within UK law at the time, and I think it
2 is probably important to emphasise that as a witness in
3 Portugal at that time you were not entitled to any legal
4 representation. So if the police wanted to ask any
5 question, which your answer may give incriminating
6 evidence, then they must declare you arguido, then you
7 were entitled to have a lawyer there. And in many ways
8 you could argue that all parents of a missing child,
9 certainly those who would have been the last to see
10 them, could have to answer questions like that. So
11 being labelled arguido was not necessarily such a bad
12 thing.
13 However, I will acknowledge that there were leaks by
14 elements of the investigation team which clearly were
15 trying to portray that there was strong evidence that
16 Madeleine was dead and that we were involved.
17 Q. Maybe there are two points here. The first point is the
18 obvious one that needs to be stated. There isn't an
19 equivalent concept of arguido in English law?
20 A. No. And I think the aspect on that is we've never been
21 arrested, we've never been charged with anything. We've
22 never stood trial.
23 Q. Do you happen to know whether under Portuguese law they
24 have a category of suspect?
25 A. I think it is loosely used, but you could have multiple
23
1 arguidos within any investigation, and at that time, the
2 title "arguido" stayed with those involved until the
3 file was closed.
4 Q. Do you think, rightly or wrongly, the British press
5 somehow interpreted "arguido" as equivalent to
6 "suspect", which carried with it, therefore, its own
7 connotations?
8 A. Yes. I mean clearly the word was used that way almost
9 exclusively.
10 Q. At this point we are in the late summer, obviously, or
11 early autumn of 2007. If I can move you forward to
12 paragraph 39 of your statement. You're making the point
13 that the story in terms of objective fact is beginning
14 to run dry and reporters now are thrashing around for
15 something new.
16 A. I think it's probably worth just clarifying that within
17 ten days of being made arguidos, the prosecutor made an
18 announcement that all lines of inquiry, including the
19 abduction of Madeleine, were open and no charges were
20 being brought at that time, but that didn't stop the
21 continued reporting of inaccurate, untruthful and
22 incredibly damaging reports.
23 Q. From the perspective of the newspaper and the sort of
24 economic calculation they may wish to conduct -- you
25 deal with this in paragraph 39 -- but you have evidence
24
1 that this story was, at least in the opinion of those
2 running one of the newspapers, boosting their
3 circulation figures. Is that right?
4 A. I think that's clear, and Peter Ellis testified that to
5 the Parliamentary Select Committee.
6 Q. The specific tone of the articles changes in September
7 2007. We're going to look at that particularly in
8 a moment. In paragraph 40, however, you refer to one
9 piece in the Evening Standard, which is I think the very
10 day you were declared arguidos, 7 September 2007:
11 "Police believe mother killed Maddie."
12 A. Mm.
13 Q. Was that the first time that point was made so baldly
14 and so falsely?
15 A. There's been so many headlines of similar gravity that
16 I can't tell you honestly whether that was the first
17 time.
18 MRS McCANN: I think that may have been the first time it
19 was in a headline. In August 2007, we were told by
20 a BBC journalist, in fact he stopped us and said, "Have
21 you seen what's getting reported? They're saying
22 there's blood in the apartment, they're saying that you
23 were involved. Madeleine's been killed and you were
24 involved." So actually it was stirring up in August
25 2007, but I think the headlines like that became very
25
1 prominent once we were made arguidos.
2 Q. Then you refer to two articles in the Daily Mail which,
3 unless I've missed something, we don't have available
4 today, but the first one published in September 2007 you
5 summarise in paragraph 41, the subheading:
6 "I pray the Portuguese police are careering down the
7 wrong track, but from the start a terrible nagging doubt
8 has refused to leave me."
9 That, for what it's worth, was corrected by another
10 piece as late as 4 May 2009, which you deal with in
11 paragraph 43; is that correct?
12 MR McCANN: It is. I should probably clarify that
13 paragraph 41 refers to Kate rather than myself, but yes,
14 that's correct.
15 Q. In paragraph 46, you deal with a theme which you're not
16 the first to address, namely presence of photographers.
17 We know, of course, that you came home at a certain
18 point, I can't remember precisely when it was, but once
19 you're home, you then have photographers outside your
20 home. Can you just tell us a little bit about that, and
21 in particular the impact that had on you?
22 A. I think the first thing probably to say is it started
23 when we said we were leaving Portugal, which we'd
24 already told the police we were going to leave before we
25 were declared arguidos, and the journey to the airport
26
1 was one of the most terrifying experiences, I think,
2 anyone could have, where cars were coming across,
3 cutting in front, cameras, people hanging out of
4 windows, motorbike riders. It was just dangerous,
5 frankly dangerous.
6 When we got back to our home in Rothley, again there
7 were tens of journalists -- we live in a cul de sac, at
8 the end of it -- camped outside our house, cameras,
9 helicopter crews following us. We were hemmed in the
10 house for a couple of days before the police moved them
11 to the end of our drive.
12 Q. Then you tell us that photographers were still banging
13 on car windows, even with one or more children in the
14 car; is that right?
15 MRS McCANN: And they stayed there until December 2007.
16 That was only after we had help to get them removed, but
17 they were there every day, and they'd wait for Gerry to
18 go and they knew I'd have to come out of the house at
19 some point with the children. It would be the same
20 photograph every day, we'd be in the car, myself and two
21 children, the photographers would either spring out from
22 behind a hedge to get a startled look that they could
23 attach "fragile", "furious", whatever they wanted to put
24 with the headline, but there were several occasions
25 where they would bang on the windows, sometimes with the
27
1 camera lenses, and Amelie said to me several times,
2 "Mummy, I'm scared."
3 MR McCANN: I'd like to point out the twins at that time
4 were still only two and a half years old. Very
5 frightened.
6 Q. You deal with two further matters, perhaps less serious
7 than this, because what you've told us of course is
8 a plain breach of the code, that we may come to in due
9 course.
10 There was a photograph of you, Dr Gerald McCann, on
11 the golf course, which obviously is a private place, and
12 then the distortion of photographs of you, Dr Kate
13 McCann, to present, no doubt, a certain image. Often
14 coupled with the adjectives "frail" or "fragile", which
15 you've told us about.
16 In terms of the effect on you, you described it, and
17 of course it will be obvious to us, but looking more
18 broadly, the effect on the continuing investigation,
19 which after all is your primary focus then, as it is
20 now, are you able to quantify that for us and describe
21 it?
22 A. Well, I think from -- reputational aspects aside, the
23 distress that was caused to us was the clear message
24 that was going out nationally throughout Europe and
25 internationally was that there was very strong evidence
28
1 that our daughter was dead and that we were somehow
2 implicated in her disappearance, and we knew that if
3 people believed that, then there couldn't be
4 a meaningful search, and it was incredible. And any
5 aspects of campaigning for a search with what happened
6 to us and how it was portrayed in the media meant we
7 were completely hamstrung in our ability to counter
8 anything.
9 MRS McCANN: These were desperate times. You know, we were
10 having to try and find our daughter ourselves. We
11 needed all the help we could get, and we were faced
12 with -- I know we'll come on to headlines, but "Corpse
13 in the car"; I don't know how many times I read "Body
14 fluids in the car". And it gets repeated that often, it
15 becomes fact. There were no body fluids. We
16 desperately wanted to shout out "It's not true, it's not
17 true", but when it's your voice against the powerful
18 media, it just doesn't have a weight. We were
19 desperately shouting out internally "Please stop, what
20 are you doing? We're trying to find our daughter and
21 you're stopping our chances of finding her".
22 MR McCANN: The point being, which I alluded to earlier, is
23 that we were told in no uncertain terms that if we
24 disclosed anything publicly which we knew to be in the
25 judicial file, ie the results which had been shown to
29
1 us, which we knew were not what was being reported about
2 DNA, then we were threatened with a two-year
3 imprisonment for breaking judicial secrecy, so we were
4 being tried by the media and unable to defend ourselves
5 adequately.
6 Q. You tell us in your statement a series of steps which
7 were taken to try and abate this flood. Can I try and
8 summarise it in this way? First of all, a meeting is
9 organised with the editors of the major UK tabloid
10 newspapers. That's in September 2007, when a clear
11 message was put out to them, and you tell us that had a
12 transient effect. It's paragraph 53 of your witness
13 statement.
14 A. Sure. I think there's two elements. Within the first
15 week of being back, we had appointed solicitors,
16 Kingsley Napley, and Angus McBride, who is one of the
17 solicitors who represented us at that time, he thought
18 it was very important that he would -- we should try and
19 modify the content of the press articles, and he went
20 with Justine McGuinness, who was campaign manager at
21 that point, and met with all the editors from the major
22 newspapers and emphasised to them that it was his strong
23 belief that there was no evidence to support what they
24 were reporting. But it seemed to have very little
25 effect.
30
1 In fact, I think Kingsley Napley then pressurised
2 Leicestershire police to write to the broadcasters and
3 editors, and there's a letter from Matt Baggott, who was
4 Chief Constable at that time, urging restraint and
5 saying there was very inaccurate reporting.
6 We organised another round of meetings with Angus
7 and Clarence, who then came back to work for us later on
8 in September 2007, and that was followed up with another
9 letter from the Chief Constable, I think on 17 October,
10 if my memory --
11 LORD JUSTICE LEVESON: 8 October.
12 A. Thank you. Failed.
13 MR JAY: 17 September, 8 October.
14 A. And obviously these things were done because the
15 coverage was continuing such a bad way.
16 Q. You identify the worst offenders, and we'll be looking
17 at this quite carefully in a moment, amongst the
18 Express Group newspapers, which included the Daily Star
19 and the Daily Express, the Sunday Express and the
20 Sunday Star?
21 A. Yes.
22 Q. Did there come a point when warnings were given by your
23 lawyers in the context of possible claims in defamation,
24 by which I mean libel?
25 A. Yes. Kingsley Napley had written to the Express Group
31
1 twice, explicitly, telling them that they were on
2 notice, that we felt that the content of the articles
3 was libellous, and we reserved the right to take action.
4 Then I think what you see in paragraph 66 is
5 a series of articles produced in January 2008 over
6 a very short period of time, rehashing largely, but with
7 other things come on, and I think it's important to
8 emphasise we had met with Adam Tudor from Carter Ruck,
9 who is as you know a libel specialist, and we had talked
10 about legal action, which for us was always a last
11 resort. We felt we had a more important battle to
12 fight, which was finding our daughter, but we felt that
13 it was our only course of action open to us at that
14 point that would stop it.
15 MRS McCANN: And I think it's important to emphasise, again,
16 some of the headlines that we faced. They were
17 incessant. And they're not just slight inaccuracies.
18 I mean, "It was her blood in parents' hire car".
19 Totally untrue.
20 Q. Let's look at some of these articles, please. What I'm
21 going to do is invite your attention first of all to
22 GM2, which is a schedule you have prepared, with
23 directly underneath it articles in the Daily Express,
24 specifically. These run from 27 September 2007 to
25 22 January 2008. The ones you have specifically
32
1 identified in paragraph 66 of your witness statement we
2 can look at, but first of all, we can get the flavour of
3 some of the headlines.
4 9 October 2007: "DNA puts parents in frame.
5 British experts insist their tests are valid".
6 17 October 2007: "Parents' hire car hid a corpse.
7 It was under carpet in boot, say police".
8 Then "Priest: I was deceived".
9 I haven't counted them up, but there are probably
10 about 25 similar pieces running over a three or
11 four-month period.
12 Let's just look at some of them, if you don't mind.
13 MR McCANN: Sure.
14 Q. We're in GM2, and the first of them --
15 LORD JUSTICE LEVESON: We're not intending to put these on
16 the website, are we, Mr Jay?
17 MR JAY: Well, if there's a problem, we won't. I didn't
18 understand there to be, but at the moment these are not
19 on any website, no.
20 LORD JUSTICE LEVESON: No. I just don't particularly want
21 to give greater prominence or currency to articles that
22 have caused enough distress in their time.
23 MR JAY: Yes.
24 LORD JUSTICE LEVESON: By all means refer to them and that
25 can be part of the evidence, but it seems to me that's
33
1 sufficient.
2 Are you content with that approach?
3 A. Obviously the articles themselves have been pulled, but
4 they are -- their contents have been widely disseminated
5 through many blogs, as you're probably well aware, but
6 we have no issue with discussing the content.
7 MR JAY: Yes. I think the best thing to do, unless someone
8 says I should adopt a different course, is I'm not going
9 to ask for the articles to be put on the screen, but I'm
10 just going to refer to the articles and we can bring out
11 maybe one or two points. If at any point you tell me
12 no, you don't want me to proceed down a particular
13 road --
14 A. Sure.
15 Q. -- of course I won't. So I'll do this as quickly and as
16 lightly as I can, Dr McCann, just to give the flavour.
17 If you look, please, at the internal numbering, it's
18 page 10 of GM2.
19 A. Yes.
20 Q. There's an article:
21 "It was her blood in parents' hire car, new DNA
22 tests report".
23 The overall flavour or thrust of this article was
24 that there was DNA evidence which linked your daughter
25 with a hire car. What do you say about that? I'm sure
34
1 you have a lot to say about it, but in a nutshell --
2 A. The first thing to say is it's simply untrue.
3 Madeleine's DNA was not uncovered from the hire car,
4 that's the first thing.
5 Q. Yes.
6 A. The inference from this is, and I think the public who
7 think that DNA is a very strong evidence in cases would
8 take this to mean, absolutely, that Madeleine was in the
9 hire car that we hired more than three weeks after she
10 disappeared. It's incredible.
11 LORD JUSTICE LEVESON: Interestingly enough, what they're
12 doing is reporting a newspaper as saying that, so that's
13 how it comes out. A Portuguese newspaper.
14 A. Well, often you'll find that there would be something
15 down in the article. They weren't published in the
16 prominence that they were in these papers. And no way
17 of checking the source, which is a recurring theme.
18 These are all sources, unnamed sources in the original
19 articles.
20 MR JAY: If we move, please, to page 15, the headline reads:
21 "Madeleine: McCanns are main suspects, say police."
22 Was that correct?
23 A. Well, the police weren't speaking to the media under
24 judicial law, and we haven't had any of the police
25 identified who have given these statements. I would
35
1 like to know who they are. Perhaps they could face
2 contempt of court proceedings.
3 Q. Okay. Page 17, this is another headline you refer to in
4 paragraph 66:
5 "Priest 'bans' Madeleine. He takes down posters as
6 Praia da Luz" and then I think this should be open
7 inverted commas "wipes her from its memory."
8 What's the innuendo there? It's pretty obvious.
9 A. It is, and I think the key thing here is obviously that
10 the Church community in Praia da Luz were incredibly
11 supportive to Kate and I spiritually.
12 MRS McCANN: And still are.
13 MR McCANN: And at that point they continued to hold
14 a weekly vigil for Madeleine, so obviously saying that
15 the town and the Portuguese locals had turned their back
16 on us was a clear innuendo from this article, which
17 again was not true.
18 Q. In GM3, if we can quickly navigate our way through that,
19 this is another schedule of articles; this time,
20 however, we're looking at the Daily Star and the
21 Daily Star Sunday. There's a similar number of
22 articles, really. No, it's more. Maybe about 50 of
23 them. What is similar is the broad dates, from
24 27 September 2007 to 22 January 2008.
25 Two of the articles you specifically referred to in
36
1 your evidence, we can just quickly alight on them. Look
2 at page 117, please, Dr McCann. An article in the
3 Daily Star on 26 November 2007:
4 "Maddie 'sold' by hard-up McCanns."
5 This is the article you do refer to, the selling
6 into white slavery allegation. Probably you don't want
7 to dignify that with a comment?
8 A. That's nothing short of disgusting.
9 MRS McCANN: I think this same journalist, if memory serves
10 right, also said we stored her body in a freezer.
11 I mean, we just ...
12 Q. The final one, I've read all of these, Dr McCann, last
13 night. We could look at all of them. These are
14 representative.
15 LORD JUSTICE LEVESON: Just to make the comment, there's
16 absolutely no source for that assertion in that article.
17 MR McCANN: No.
18 MR JAY: There's a generic reference to a bombshell new
19 police theory, but completely non-attributed.
20 LORD JUSTICE LEVESON: Yes. Sorry.
21 MR JAY: Probably entirely made up.
22 Page 132. In capitals:
23 "She did die in hol [short for holiday probably]
24 flat; blood traces [in capitals] are Maddie's, car
25 fluids [again in capitals] are from corpse" and then
37
1 "-- cops: body had been moved."
2 And then there's a reference to a possible grilling
3 by the British police, they have sensational new
4 evidence. Are you going to dignify this with a comment
5 or not?
6 A. I mean, you can, I hope, understand why we felt we had
7 to take proceedings from the severity and consistency of
8 the allegations being made.
9 Q. Can we deal now with the proceedings? If you want me to
10 go further through the schedule, through the articles,
11 please let me know. I detect you probably don't. We
12 have enough of a flavour; is that right, Dr McCann?
13 A. Mm.
14 Q. But what happened next, your solicitors have become
15 involved, letters before action had been sent. To pick
16 up the story at paragraph 68, you say that on 7 February
17 your solicitors were contacted by the Express, and they
18 proposed some sort of deal with you. Can you tell us
19 about their proposal?
20 A. It was pretty much said because we were arguidos, they
21 couldn't agree to our complaint, but they did suggest
22 that we did an interview with OK magazine, which we
23 found rather breath-taking.
24 Q. Right. It goes without saying that that offer was not
25 accepted and matters proceeded. Paragraph 69, the
38
1 Express by now had taken expert advice and they now
2 indicated that their articles were defamatory; is that
3 right?
4 A. Yes.
5 Q. Could you give us a sense of the timescale here? The
6 first offer from the Express was 7 February, this was
7 the Hello magazine offer, but when did the admission of
8 wrongdoing, as it were, come in?
9 A. It did drag out a bit. I can't give you the exact
10 dates. I do have it on file. But there was an
11 acknowledgment that they might be prepared to make an
12 apology and also consider damages. We wanted to make
13 sure that those damages reflected the seriousness of
14 what they had published and it was -- to be honest, the
15 damages for us were a secondary consideration. It was
16 more about getting a front page apology to send a clear
17 message that we wouldn't tolerate these ongoing
18 allegations in other newspapers either.
19 Q. The statement in open court was read out on 19 March
20 2008.
21 A. Mm.
22 Q. £550,000 was paid to Madeleine's Fund, and there was
23 also an apology on the front page, is this right, both
24 of the Express and of the Star? Or is it just the
25 Express?
39
1 A. No, both.
2 LORD JUSTICE LEVESON: Express Newspapers, and given that
3 we've gone into it, it's probably sensible just to read
4 that:
5 "In addition to the allegations referred to above,
6 the Daily Star published further articles under the
7 headlines which sought to allege that Mr and Mrs McCann
8 had sold their daughter in order to ease their financial
9 burdens. A further article alleged that Mr and
10 Mrs McCann were involved in swinging or wife swapping.
11 As the defendant now acknowledges, all of these
12 allegations were and remain entirely untrue. In
13 particular, there is no evidence whatsoever to suggest
14 that Mr and Mrs McCann were responsible for the death of
15 their daughter, they were involved in any sort of
16 cover-up and there was no basis for Express Newspapers
17 to allege otherwise.
18 "Equally, the allegations that Mr and Mrs McCann may
19 have sold Madeleine or were involved in swinging or wife
20 swapping were entirely baseless. Naturally the repeated
21 publication of these utterly false and defamatory
22 allegations have caused untold distress to Mr and
23 Mrs McCann. Indeed, it is difficult to conceive of
24 a more serious allegation."
25 That just provides some context.
40
1 A. Thank you.
2 MR JAY: What may be worthy of consideration though is the
3 possible rapidity of change of stance. On the one hand,
4 they were maintaining their articles, they get leading
5 counsel's advice, then all of a sudden they say it's all
6 entirely wrong and maybe it's worth a consideration how
7 and why that volte face occurs.
8 LORD JUSTICE LEVESON: Could you tell me this. They
9 presumably published something as well. Where was it
10 published?
11 A. The apologies?
12 LORD JUSTICE LEVESON: Yes.
13 A. They were on the front page. We insisted. And we would
14 have gone to court to get that.
15 LORD JUSTICE LEVESON: Do we have that?
16 MR JAY: I don't think we have the text of the apologies on
17 the front page, do we?
18 A. Not the full apology.
19 LORD JUSTICE LEVESON: All right.
20 MR JAY: We can look at those, if necessary.
21 You deal with the issue of exemplary damages,
22 punitive damages in paragraph 71.
23 A. Yes.
24 Q. But you decided in the end not to pursue those; is that
25 correct?
41
1 A. It is. We were told that we had, after taking counsel's
2 advice, that we would be very likely to be successful in
3 such a claim, and my understanding of that was that
4 there would be a very strong argument that Express Group
5 Newspapers knew that the allegations, or many of them,
6 were unfounded or certainly couldn't prove any of them,
7 and despite the steps we had taken from September 2007
8 through to issuing proceedings made it very clear there
9 was no evidence to back it up, that we could only assume
10 they were acting for profit.
11 Q. After these matters -- we're now in March of 2008 -- the
12 answer to the question may be fairly obvious, but were
13 there any further objectionable articles in the British
14 press?
15 A. There was certainly a dramatic sea change within Express
16 Group Newspapers and I think largely the coverage has
17 been much more responsible and balanced. It doesn't
18 mean that there hasn't been articles published which are
19 untruthful. They may not be libellous or defamatory,
20 some of them, and we've had to have certain articles
21 pulled, but there was a clear change. With hindsight,
22 I wish we'd taken action earlier.
23 Q. In paragraph 76, you deal with related litigation
24 involving your friends, I believe, who were with you on
25 holiday. Can I take this point quite shortly, that they
42
1 too recovered damages?
2 A. Yes.
3 Q. I think in total the amount was £375,000.
4 A. That's correct.
5 Q. But so it's clear, I've been asked to draw this from
6 you, that the defendant to the proceedings brought by
7 your friends was again Express Newspapers?
8 A. That's correcting.
9 Q. Or their publishers. The Sun reported it, although the
10 Sun themselves, to be absolutely clear, were not the
11 defendants, they hadn't defamed you. They reported
12 those settlements, I'm told, at page 25, and there were
13 similar reports in the Daily Mirror. But so there's no
14 doubt about it, the Sun and the Daily Mirror are not the
15 defamers. They are reporting what's happened in
16 relation to proceedings brought by other organs of the
17 press.
18 Paragraph 78 to 80, Associated Newspapers, please.
19 You made a further libel complaint in July of 2008 in
20 relation to coverage in the Daily Mail and the Evening
21 Standard. Can we be clear which articles these relate
22 to, since you don't specify it in paragraph 79? Do
23 I have this right? Are you referring back to the
24 article at paragraph 40 of your witness statement,
25 Dr McCann?
43
1 A. There had been a large number of articles, similar tone
2 to the ones that we had complained of previously, so it
3 was more again about DNA, blood, suspects, Madeleine
4 being killed, et cetera, rather than anything else.
5 Paragraph 40 --
6 Q. You identify one article in the Evening Standard
7 published on 7 September 2007.
8 A. Sure. There were many similar articles like that,
9 particularly in the Evening Standard at that time.
10 MRS McCANN: The corpse in the car was the Evening Standard,
11 I think.
12 Q. In a nutshell, what was the outcome of these libel
13 proceedings?
14 MR McCANN: We did settle. They paid damages and there was
15 an apology published in the Evening Standard. The
16 Daily Mail did not publish an apology.
17 Q. One point you make, these libel proceedings were brought
18 with the benefit of conditional fee agreements; is that
19 correct?
20 A. Yes. I think it's very important, given the scale of
21 the task that faced us, and we were given -- we made our
22 decisions after being fully informed of the pathway, and
23 I think that's very important. It was a last resort.
24 And at the time, given our circumstances, I do not
25 believe we would have had the resource to go down that
44
1 path if it wasn't for a CFA being in place.
2 LORD JUSTICE LEVESON: This is going to be your choice. It
3 won't happen to anybody else, but it will be your
4 choice. If you'd like a break for five minutes, we'll
5 have it. If you prefer to carry on, we'll carry on.
6 A. I'm happy to carry on.
7 LORD JUSTICE LEVESON: Right. I ought to say, I've
8 confirmed it with the shorthand writer.
9 MR JAY: There's a fair bit more, I don't want to rush this,
10 but we'll see how we get on.
11 Paragraph 82, the first anniversary. You explain
12 that you agreed to an interview with Hello magazine.
13 Just tell us a bit, please, about why you did that?
14 A. I think the first thing to say, it was very specific and
15 we had -- clearly we've talked about our prime
16 objective, which is finding Madeleine, and what we've
17 hoped is that some good would come out of what happened
18 to us. And one of the things, through our own research
19 and having been to the National Centre for Missing and
20 Exploited Children in the USA, was to talk about
21 AMBER Alert, and we decided that we would start
22 campaigning for a joined-up alert system for missing
23 children within Europe, particularly on the continent of
24 Europe.
25 For that very specific reason, because Hello is
45
1 distributed, I think, in 14 European countries, they did
2 approach us and said that they would promote the
3 campaign, and at the time we were lobbying MEPs to sign
4 declarations supporting an alert system, so we agreed to
5 do an interview on that basis, which, just for clarity,
6 of course, we were not paid for.
7 MRS McCANN: Many of the media outlets didn't really want to
8 run with the work we were doing for the child rescue
9 alert, which in itself is disappointing because it is
10 important but obviously it's not as exciting, or
11 whatever the word is, when it comes to headlines and
12 stories. So we saw this as an opportunity of improving
13 things for the greater good really.
14 Q. One rival however wasn't best pleased and you touch on
15 this in paragraph 84. Maybe this is quite
16 understandable, but tell us a little bit about the call
17 you received from the then editor of the
18 News of the World.
19 MR McCANN: I think it would be fair to say that Mr Myler
20 was irate when he learned of the publication which
21 happened and was berating us for not doing an interview
22 with the News of the World and told us how supportive
23 the newspaper had been, the news and rewards, and a time
24 of stress for us on the first anniversary, where we were
25 actually launching a new campaign, we were still
46
1 arguidos at the time, a new call number for people to
2 come forward so we could continue the search for our
3 daughter, and we were interacting with the media to get
4 that message out.
5 He basically beat us into submission, verbally, and
6 we agreed to do an interview the day after.
7 MRS McCANN: Can I just emphasise, this is at an extremely
8 stressful time. It was the run-up to one year of not
9 having our daughter with us. Emotionally as well as
10 logistically, everything we were trying to do, it was
11 incredibly hard. So to get a call like this, and you
12 actually almost feel guilty, you know, because they're
13 saying, "We helped you, we got a reward", and you almost
14 say, "I'm sorry", and it's almost like somebody won't
15 help you unless you give something back.
16 MR McCANN: And of course we were trying to make the
17 distinction between interacting with the media for what
18 we thought was something helpful for the search, and
19 simply doing an interview, which we knew would focus on
20 the human interest aspects and not necessarily the
21 search for Madeleine.
22 Q. The News of the World come into the narrative a few
23 months later, as you rightly say at paragraph 86. It
24 may be that Dr Kate McCann would like to deal with this,
25 but I'm in your hands. Out of the blue, 14 September
47
1 2008, transcripts from your personal diary appear or
2 purport to appear in the News of the World. Can you
3 tell us a bit about that, please?
4 MRS McCANN: You're right, this was totally out of the blue.
5 It was Sunday lunchtime, we'd just got back from church
6 and I got the text message from Gail, who works in the
7 nursery where Madeleine, Sean and Amelie went, and it
8 just said, "Saw your diary in the newspapers.
9 Heartbreaking. I hope you're all right." And it was
10 totally out of the blue, and I had that horrible panicky
11 feeling, confusion and, you know, what's she on about?
12 I didn't have a clue. We rapidly found out, it was the
13 News of the World. I went and looked at it online,
14 which was five pages, including the front page. I got
15 my original handwritten copy of my diary out and sat
16 there, and it was lifted in its entirety and put in the
17 newspaper without my knowledge. Apart from the odd
18 word, which was -- I think it was a translational error,
19 that had obviously been taken -- translated into
20 Portuguese, and then a Portuguese copy had then been
21 translated back to English, which was slightly different
22 from the original, but pretty verbatim and it had been
23 put there.
24 I felt totally violated. I'd written these words
25 and thoughts at the most desperate time in my life, most
48
1 people won't have to experience that, and it was my only
2 way of communicating with Madeleine, and for me, you
3 know, there was absolutely no respect shown for me as
4 a grieving mother or as a human being or for my
5 daughter, and it made me feel very vulnerable and small
6 and I just couldn't believe it.
7 It didn't stop there. It's not just a one-day
8 thing. That whole week was incredibly traumatic and
9 every time I thought about it, I just couldn't believe
10 the injustice. I actually just recently read through my
11 diary entries at that point at that week and I talk
12 about climbing into a hole and not coming out because
13 I just felt so worthless that we'd been treated like
14 this.
Re: Leveson Inquiry - Video & Transcript
15 Q. Can we be clear as to the provenance of the diary. You
16 mentioned a Portuguese translation, which may be a clear
17 indication of provenance but perhaps I can take this
18 quite shortly, that the judicial or police authorities
19 in Portugal had obtained or had seized a copy of your
20 diary, or perhaps it was the original, in August 2007;
21 is that right?
22 MRS McCANN: Yes, it was --
23 Q. We're talking about a hard copy, manuscript document?
24 MRS McCANN: It was just handwritten. They'd come and said
25 they had taken clothes from the villa and we had to
49
1 leave, and when we got back later that day, they said
2 they'd also taken my diaries as well, which I have to
3 say was a little bit of a shock, but it did come back to
4 me about 24, 48 hours later, so I obtained the original
5 copy. Obviously, photocopies were taken during that
6 period.
7 Q. Yes. It wasn't clear from your statement, but it now
8 is. It was within quite a short space of time that the
9 original was returned to you, you believe by order of
10 a Portuguese judge, so it sounds as if the initial
11 seizure had been a step too far, or whatever. But
12 a copy of the original must have been taken by someone,
13 presumably someone within the Portuguese police or
14 judicial authorities; is that correct?
15 MR McCANN: I think it's clear that the police had copied
16 the journal and had it translated, and of course at the
17 time we didn't understand why the journal could have
18 been relevant because Kate only started keeping it
19 a couple of weeks after Madeleine was taken, so we
20 didn't know there was a copy until the file was released
21 the following summer, but within the file, the
22 Portuguese judicial file, there is an order from the
23 judge, who's read the translation and says, "This is of
24 no interest to the investigation, it's Kate's personal
25 thoughts and should not ..." and he actually used the
50
1 word "violation".
2 MRS McCANN: He used the word "violation". He said use of
3 which would be a violation of its author.
4 MR McCANN: And ordered that any copies be destroyed.
5 LORD JUSTICE LEVESON: And further investigation of that has
6 revealed, if anything? To unpick where this came from?
7 MR McCANN: I would like further investigation as to where
8 it came from.
9 MRS McCANN: An investigation.
10 MR McCANN: Because clearly it was an illegal copy.
11 MR JAY: I think what it relevant, and I think this has
12 already come out from Dr Kate McCann's evidence, is that
13 one or two things were lost in the translation, or
14 changed, which indicates that the piece in the
15 News of the World was a translation from the Portuguese.
16 MR McCANN: Yes.
17 Q. Because had it been precisely verbatim, it might have
18 led us --
19 MRS McCANN: Very subtle changes but things like where
20 I said I was "really upset", it says I was "fed up". It
21 does change the meaning slightly.
22 Q. It may be we can investigate that or it may be that we
23 will receive an admission as to --
24 LORD JUSTICE LEVESON: I'd like to know whether there is a
25 byline.
51
1 MRS McCANN: It would be nice to know the source.
2 LORD JUSTICE LEVESON: Is there a byline on the article?
3 MR JAY: It says "in her own words".
4 LORD JUSTICE LEVESON: Yes, yes, yes, I understand that, but
5 is there a reporter's name associated with it?
6 MR JAY: Pardon me, yes, there is.
7 LORD JUSTICE LEVESON: There you are, there's a potential
8 line of inquiry.
9 MR JAY: It's a point I'd like to think can be dealt with
10 very quickly by someone. It can be confirmed, because
11 it's pointless denying it really. There's only one
12 reasonable inference here.
13 You do refer in paragraph 93 to a conversation which
14 was reported to you from Clarence with the deputy editor
15 of the News of the World as he then was, Mr Ian
16 Edmondson. Can you tell us a little bit about that?
17 MR McCANN: I think the first thing to say is that Clarence
18 would speak to Ian Edmondson, who was deputy editor and
19 was probably responsible for most of the stories about
20 Madeleine at that time. So Clarence spoke to Ian on
21 a regular basis and one or two of the News of the World
22 reporters. Clarence had mentioned it to me, just saying
23 that the News of the World had indicated that they would
24 do a supportive story, mainly attacking the Portuguese
25 police, but generally supportive. That was it. There
52
1 was no mention of having a copy of Kate's diary, no
2 mention that they were intending to publish it verbatim.
3 So as Kate has already said, it was a complete shock
4 when we heard that it was printed.
5 Q. Yes. They have breached a number of tortious
6 obligations which it's not necessary to spell out. It
7 culminated in a complaint, the possibility of
8 litigation, but that was avoided by an apology from the
9 News of the World and the payment of a further donation
10 to the fund for the search for Madeleine; is that
11 correct?
12 A. Mm.
13 Q. I'm just going to touch upon the section continuing the
14 relationship with the press. I am not going to cover
15 paragraph 97 unless I'm asked to specifically. If you
16 wish me to I will, but I wasn't minded to. I was going
17 to ask you though about paragraph 100.
18 A. I mean, I think 97's probably important.
19 Q. Okay, well tell us about it in your own words.
20 A. For one of the stories that was not published and isn't
21 libellous, not defamatory, but we were alerted to it and
22 it was done by a freelance journalist who has written
23 many inaccurate stories, and had submitted it, I think
24 it was to the People, if I'm right, the People on
25 Sunday, and the editor or the deputy editor called
53
1 Clarence just to say they were running this, this was on
2 the evening of the Saturday, and Clarence phoned us and
3 it was complete nonsense, but it was basically saying
4 that we were undergoing IVF treatment with a view to
5 getting a new baby to replace Madeleine.
6 MRS McCANN: I think the important thing, this demonstrates
7 it's not just the articles that have been published that
8 have been a problem. We've had many weekends destroyed
9 because we've had to try and stop articles like this
10 from actually ending up in the press. And weekends are
11 important for Gerry, that's our only family time. We've
12 had to involve lawyers on --
13 MR McCANN: Friday nights. Another example there which
14 I don't think is in our evidence, but again it
15 transpired on a Friday evening, is journalists had gone
16 to speak to my mum, I think they said even -- you know,
17 Clarence said it was okay and my mum let them in and
18 a lady journalist took a copy of an unpublished
19 photograph of Kate, myself and Madeleine when we lived
20 in Amsterdam that was very special to us and they were
21 going to publish it in a Scottish newspaper on the
22 Sunday and we had to involve Adam and Isabel from
23 Carter Ruck to get that stopped.
24 I think the only way we managed to get a very
25 stroppy interaction with the editor was that we own the
54
1 copyright of the picture and they were not in the least
2 apologetic.
3 MRS McCANN: They were fighting it, actually, saying, "We've
4 got the picture". It was like, "It's our daughter."
5 Incredible.
6 MR McCANN: The impact that these things have in what should
7 be a little bit of respite, but there have been several
8 occasions where we've gone behind the scenes at the
9 eleventh hour.
10 Q. Thank you. Then paragraph 100, you deal with a piece in
11 the Daily Mail, quite recently, July of this year, about
12 an alleged reported sighting in India. What are your
13 feelings about that, please?
14 A. It's probably one of the most recent examples of what
15 I would say is the contempt for Madeleine and her
16 safety. There was no check. This sighting had been
17 reported to the police, I think we were actually on
18 holiday. They emailed us a photograph and we quickly
19 indicated that it was not Madeleine, and as far as we
20 were concerned, it was dealt with. And then a day or
21 two later, it's published and the newspaper on that
22 occasion have chosen to publish it and they may want to
23 justify why, but from our point of view, they don't know
24 whether it's true, they haven't contacted us, and
25 additionally we have the issue that if this really was
55
1 a genuine sighting of Madeleine, then her captors may be
2 alerted and move her.
3 So the story has precedence over the safety of our
4 child. And that's clear. And that has been done by,
5 I think, every single newspaper, as well as similar
6 instances of amateur sleuthing and details about the
7 investigation which should only be known to the
8 witnesses and the potential to contaminate evidence by
9 having read something that you shouldn't really know
10 about, and all of the newspapers and broadcasters have
11 been guilty of it.
12 Q. Thank you. Out of sequence, I'm then going to come back
13 to the PCC because it's a more general point, I think,
14 under the heading "Kate's book", paragraph 111. It may
15 be in your hands as to which of you would like to deal
16 with this piece of evidence.
17 A. Sure.
18 Q. Book published in May of 2011, so we're at the fourth
19 anniversary, it was to mark that, to coincide with that.
20 Obviously a difficult decision. Do you want to tell us
21 a little bit about that?
22 MRS McCANN: You're right, it was a very difficult decision
23 for obvious reasons, for all the reasons we've been
24 discussing. But ultimately we are responsible for
25 conducting and funding the search to find our daughter.
56
1 Q. Yes.
2 MRS McCANN: And ultimately I had to make the decision, we
3 needed to raise money, I knew this was something that
4 I could do that could maintain the search and possibly
5 help us find our daughter, and that's why I took the
6 decision then to do it. Obviously in the ideal world,
7 you wouldn't choose to do anything like that.
8 Q. There was serialisation of your book in two
9 News International titles, the Sun and the Sunday Times?
10 MR McCANN: Yes.
11 Q. You talk about a meeting with Rebekah Brooks, which led
12 to a review of your case, a formal review. Just to
13 assist us a little bit with that, can you recall when
14 that was?
15 A. I think it's probably worth just elaborating a little
16 bit because it's quite a complex decision-making process
17 in terms of agreeing to serialise the book.
18 News International actually bid for the rights to
19 the book, along with Harper Collins, and one of their
20 pitches was the fact that they would serialise the book
21 across all of their titles, and we were somewhat
22 horrified at the prospect of that, given the way we'd
23 been treated in the past, and the deal was actually done
24 with the publishers, Transworld, that excluded
25 serialisation.
57
1 Now, we were subsequently approached by
2 News International and Associated to serialise the book,
3 and after much deliberation, we had a couple of meetings
4 with the general manager and -- Will Lewis and
5 Rebekah Brooks and others, and what swung the decision
6 to serialise was News International committed to backing
7 the campaign and the search for Madeleine. And that
8 passed our test of how it could help, and we had been
9 lobbying behind the scenes for two and a half years,
10 with successive Home Secretaries, to try and get
11 a review of Madeleine's case, and we felt that having
12 News International helping in that, and ultimately where
13 I think the media have helped in this situation, of
14 galvanising the public, having them reengaged with us
15 and Madeleine, is what tipped the balance.
16 Q. Her intervention was successful?
17 A. It was.
18 Q. There may not be a module three issue.
19 LORD JUSTICE LEVESON: Yes.
20 MR JAY: It's right to say in terms of the sequence of
21 events, I think the Prime Minister was involved just
22 a bit before, and then the Home Office the day after?
23 A. Yes, I think --
24 Q. The same day announced --
25 A. We had written to the Home Secretary saying that we'd be
58
1 launching the book, and asking her to update us on where
2 they had got, and we got one letter which really didn't
3 say very much, and then we did the open letter to the
4 Prime Minister, which was published on the front page of
5 the Sun.
6 Q. Turn back to the issue of the involvement of the PCC.
7 This is covered both in your witness statement and
8 in evidence you gave, Dr Gerald McCann, to the Culture,
9 Media and Sports Select Committee in 2009, and then it
10 was picked up in the second report, I think, of that
11 committee. There's a whole section of the report that
12 goes to that issue.
13 The position I think is -- I'm back in your
14 statement, paragraph 101 -- the PCC's position is that
15 at an early stage they put a message out that they were
16 ready, willing and able to assist you. This was in May
17 2007. Do you follow me?
18 A. Yes.
19 Q. I think your evidence is, well, you never got that
20 message. Was that right?
21 A. If I did, it was lost in the time when we were obviously
22 dealing with lots of things, and I would say probably
23 similar to Mrs Gascoigne who gave evidence earlier this
24 morning, that I was only vaguely aware of the PCC at
25 that time.
59
1 Q. In paragraph 103 you say:
2 "We have on a number of occasions had cause to
3 contact the PCC. The PCC was extremely helpful in
4 dealing with the unwanted intrusion into the privacy of
5 our twins."
6 Are you referring there to the business with the
7 paparazzi taking photographs when you're back in the
8 United Kingdom?
9 A. Yes.
10 MRS McCANN: That's right.
11 MR McCANN: I think we had also indicated earlier in the
12 summer of 2007 that although we tacitly agreed to having
13 photographs of us taken in Praia da Luz, largely because
14 we felt that we couldn't stop it, particularly with
15 international media being there, that as the situation
16 dragged on over months, we didn't want continued
17 photographs of Sean and Amelie to be published, and we
18 were obviously concerned at the time, they were just 2,
19 but as they got older, they could be recognised. So
20 there was an agreement -- and I can't remember exactly
21 if the PCC were involved in that, but we asked the media
22 not to publish photographs of Sean and Amelie, and that
23 was adhered to with pixelation up until we arrived back
24 in the UK and then it went out the window again.
25 Q. In terms of the PCC assisting you in relation to the
60
1 wider issue of inaccurate, unfair and sensationalist
2 reporting, it may well be that there isn't a factual
3 dispute between you and the PCC at that time, of course,
4 speaking through Sir Christopher Meyer. If you kindly
5 look under tab 9, Dr McCann, you'll see relevant
6 extracts from the report of the Culture, Media and
7 Sports Select Committee published on 9 February 2010.
8 I invite your attention -- the pagination is working --
9 on the top right-hand side of each page, to page 87.
10 A. Yes.
11 Q. You should find a heading, "The role of the PCC",
12 I hope, and then paragraph 354. There we deal with the
13 message which they say they gave to you and you've told
14 us really, well, you don't recollect it, and of course
15 a lot was going on, but there was a meeting, and this is
16 355, on 13 July 2007 --
17 LORD JUSTICE LEVESON: That was just accidental.
18 MR JAY: Yes.
19 The general thrust of what you were told by
20 Sir Christopher Meyer during the course of an informal
21 conversation, is this correct, is that if you wanted to
22 deal with the issue of libel, well, then the route was
23 legal recourse, legal action. But if you wanted to deal
24 with it in some other way, then the PCC might be able to
25 help?
61
1 A. Yes.
2 Q. Does that capture the sense of that meeting?
3 A. It's probably fair to put in there that I had a number
4 of conversations with Sir Christopher, primarily because
5 we became friendly with his wife, Lady Catherine,
6 through her work with PACT, so on that first occasion
7 I met Sir Christopher and he broadly asked, "How are the
8 media treating you?" and we were very open and at that
9 point we said, "Considering the interest, not too bad",
10 and we didn't really have too much in the way of
11 specific complaints.
12 I did have further informal conversations and they
13 also dealt with correspondence from Kingsley Napley over
14 the period, but the gist of the conversations, and most
15 of my dialogue with him, informal rather than written,
16 was that we agreed with our legal advice and we took the
17 best legal advice we could get, that the way to stop
18 this was to take legal action and not to go to the PCC,
19 and I think Sir Christopher agreed with that.
20 Q. That's a fair summary, Dr McCann. It's what the
21 committee think as well, although Paul Dacre expressed
22 disappointment that you didn't make a formal complaint
23 to the PCC, although Sir Christopher disagreed with
24 Paul Dacre so we have two views --
25 A. I think the ultimate thing was we discussed a course of
62
1 action and our advice, which was given in no uncertain
2 terms, this is legal advice, was that the PCC were not
3 fit to deal with the accusations, the nature of them,
4 the number of them and the severity.
5 Q. The Inquiry will note, but it's not necessary for me to
6 read it out, the conclusions of the Select Committee on
7 these issues. They start at paragraph 364 and 365 in
8 bold. And the direct criticism is made by the Select
9 Committee of the PCC that the press were beginning to
10 ignore the requirement of the code and the PCC remained
11 silent.
12 Then under the heading "Lessons learnt", they review
13 your case. They rightly point out that this was a very
14 unusual case. They state that the coverage was
15 "freakish", and then their conclusions are set out at
16 paragraphs 373 and 375.
17 Perhaps I should read those out?
18 LORD JUSTICE LEVESON: The word "freakish" is the committee
19 saying it's far from clear that the McCann coverage was
20 really so freakish.
21 MR JAY: Paragraph 373:
22 "The newspaper industry's assertion that the McCann
23 case is a one-off event shows that it is in denial about
24 the scale and gravity of what went wrong and about the
25 need to learn from those mistakes. In any other
63
1 industry suffering such a collective breakdown, as for
2 example in the banking sector now, any regulator worth
3 its salt would have instigated an inquiry. The press
4 indeed would have been clamouring for it to do so. It's
5 an indictment on the PCC's record that it signally
6 failed to do so.
7 "The industry's words and actions suggest a desire
8 to bury the affair without confronting its serious
9 implications, the kind of avoidance which newspapers
10 would criticise mercilessly and rightly if it occurred
11 in any other part of society. The PCC, by failing to
12 take firm action, let slip an opportunity to prevent or
13 at least mitigate some of the most damaging aspects of
14 this episode and in so doing lent credence to the view
15 that it lacks teeth and is slow to challenge the
16 newspaper industry."
17 Is there anything you wish to add or subtract from
18 that?
19 A. I think I would agree with it, and it's probably for
20 others to decide whether the PCC could have changed it.
21 I think that's a moot point.
22 Q. Can I deal now with some general points, including the
23 four general points you made at the start? But before
24 I deal with those four points, I'm back to your witness
25 statement at paragraph 116.
64
1 You refer to the or a culture change which is
2 required. May I invite you, please, to put that in your
3 own words, both to identify the existing culture and
4 then the change which you think is required?
5 A. I think we can speak with experience about how powerful
6 the media are, and how much damage they can do. We've
7 already said how many good things that they have done as
8 well, so there is power, there is no doubt about it.
9 But what we see on a daily basis are front page tabloid
10 headlines in particular, sometimes followed by a clamour
11 with 24-hour news channels and Internet and a blurring
12 of the media, of stories which appear to have no factual
13 basis, or exaggerated, or distorted.
14 You've heard about several of hundreds that were
15 written about us, but we see them, I walk into the shop
16 in the hospital every day and I see front page
17 headlines, whether it's about Chris Jefferies who is
18 going to give evidence, or contestants on the X Factor,
19 and I think information has been written and lives are
20 being harmed by these stories, and something has to
21 change. A commercial imperative is not acceptable.
22 Q. Thank you. The four specific headings you've given us,
23 in one sense you've largely covered these but it's
24 helpful if we can bring the strands together.
25 The first is libel. Might it be said, and can
65
1 I just invite you to deal with this, well, this in fact
2 is an example, your case, of the system working to the
3 extent that you decide at a certain point that enough is
4 enough. Obviously as professional people you're not
5 going to put your house on the line to fund legal
6 action, but conditional fee arrangements were available,
7 you took advantage of that.
8 Within a reasonably swift timeframe, and it's for
9 others to decide whether it was quick enough or
10 whatever, the position of Express Newspapers changes,
11 they admit liability, they make a statement in open
12 court, they pay £550,000, which in the scale of things
13 is a significant amount of money with modern libel
14 awards, and there's a front-page apology. Is that an
15 example of the system working or do you have a different
16 take on what I've just said?
17 A. I think it is an example of the system working in part,
18 however we would much rather we weren't awarded any
19 damages and the stories had not been published, and
20 I think it's very important to emphasise that we have
21 experienced long-lasting damage as a result of the
22 headlines and the media coverage, including recent trips
23 to Holland and Spain where our taxi driver said, "Oh,
24 you're the parents who are accused of killing your own
25 daughter, what happened?" and secondly in Spain where
66
1 they showed a film that supposedly had us showing
2 tablets that were tranquillisers that we'd supposedly
3 given to children, stated as virtually fact.
4 So although we've worked incredibly hard to change
5 things in the UK, the damage is more widespread.
6 So the money is only for me -- and I understand that
7 the costs may be more of a deterrent than the damages,
8 per se, but it's only a partial compensation, and once
9 it's there, yes, the apology goes part of the way, but
10 as we've seen, often the reporting is much wider than
11 the original offending outlet, and the damage is
12 long-lasting.
13 And if you go on the Internet now, which our nearly
14 7-year-old twins will be doing, most of these
15 allegations are still there and we will have to continue
16 dealing with them going forward.
17 Q. You make two points there, I think, Dr McCann. The
18 first is the point damages are never proper recompense,
19 and it's right, the judges recognise that, whether it's
20 a reputation case or personal injuries case, the money
21 can never provide reparation.
22 The particular point in your case is there's an
23 international dimension and whatever happens in the
24 United Kingdom in terms of statements in open court,
25 they're not going to carry any mileage or impact outside
67
1 this jurisdiction.
2 A. No.
3 Q. Hence your experiences in Spain and the Netherlands.
4 A. Correct.
5 Q. That's a helpful observation. What about your second
6 heading, which was privacy laws? Could you help us
7 a bit more with that, please?
8 A. Yeah. I think it's something obviously we probably
9 hadn't thought too much about before we found ourselves
10 in the situation that we are. You take your anonymity
11 for granted. What I find disturbing, clearly, when
12 you're being followed, you're being put in danger by
13 either reporters' or photographers' behaviour and
14 secondly I think it is probably an anomaly within the
15 legal system that a commercial organisation can take
16 a photograph of you, use it in their product, which they
17 sell and make a profit without your consent, and I think
18 that should be remedied.
19 I think if I'm here, I know I'm in public, I'm
20 giving evidence, I understand that images will be used,
21 I fully understand that and I'm implicitly consenting to
22 it, but whether it's us going for a run or driving out
23 of our front drive, and particularly with children,
24 I don't think it should be allowed. I think you should
25 not be allowed to publish photographs of private
68
1 individuals going about their private business without
2 their explicit consent, signed.
3 Q. The existing PCC Editors' Code speaks of either
4 a private place or a public place where there's
5 a reasonable expectation of privacy. I think your
6 evidence is suggesting that that latter concept is quite
7 a difficult one to understand and in particular to
8 apply.
9 A. Mm-hm.
10 Q. So that indeed further thought need be given to that.
11 The third issue we may or may not have brought out
12 adequately but please expand it if you wish to.
13 Contempt for the judicial process, namely the secrecy
14 implications of the Portuguese law, I think, and for
15 your child's safety.
16 A. Yes.
17 Q. You have addressed that issue, but is there anything you
18 would like to expand, bring any strands together?
19 A. Yes, it wouldn't be explicit to judicial secrecy in
20 Portugal, and by judicial I meant the whole process
21 which in Portugal is obviously overseen by a judge. So
22 you have information. We were told we were under
23 judicial secrecy not to give details of events. What
24 became very apparent was, you know, the media were
25 trying to create a timeline of what happened, and we had
69
1 obviously created a timeline and given it to the police
2 and tried to narrow down to the closest minutes when we
3 think Madeleine was taken to help the investigation.
4 But when that information goes into the public
5 domain and the abductor shouldn't know it, or the only
6 person who should know it were the people who were
7 there, then that's a concern. It can contaminate
8 evidence. You could incriminate yourself by knowing
9 something that you shouldn't have known.
10 So that's the first process, and I think clearly, as
11 again I'm not a lawyer and I may be speaking out of
12 turn, but it's probably clear when there is a court case
13 on in the United Kingdom, about what's to be reported
14 and what not, and the police are very careful about
15 which information they give to the media in this
16 country, but for me there was contempt about that whole
17 investigative process. There was no regard for the
18 outcome. It was much more important for the media
19 outlets to have the detail or perhaps to have the
20 contradictions, and the salacious aspects that followed
21 it.
22 And then the point about Madeleine has never been
23 raised, I think, before, and clearly every outlet,
24 I think, has been guilty of this, about reporting
25 sightings, suspicious people, without giving it to the
70
1 proper authorities. And that is of grave concern, and
2 obviously our concern and focus is Madeleine, but it
3 applies to other cases as well.
4 Q. Your fourth heading is quite a broad one: acceptable
5 standards.
6 A. Yes. I did have a quick look at the National Union of
7 Journalist's submission and there are standards, but
8 there are no penalties for not sticking to them, and
9 whatever your profession is, particularly in this
10 country, then there is fairly strong regulation which we
11 have to abide to, and I have seen no individual
12 journalist or editor brought to account over the
13 stories, be it within Express Newspapers Group or
14 Associated or any of the other groups and I think if
15 there are repeated offenders, then they should lose
16 their privilege of practising as a journalist.
17 LORD JUSTICE LEVESON: Quite difficult, that. I understand
18 exactly why you're saying that, but just let me share
19 with you the difficulty, that what journalists do is
20 exercise the right of free speech, and whereas you as
21 doctors require licence to practise medicine, and if you
22 are taken to the GMC then the GMC have all sorts of
23 sanctions available, it's quite difficult in relation to
24 the exercise of free speech.
25 That's not to say that there shouldn't be penalties,
71
1 there shouldn't be some mechanism whereby there's
2 a holding to account for what you've done.
3 A. Sure.
4 LORD JUSTICE LEVESON: But --
5 A. Thank you, sir. I would like to emphasise that
6 I strongly believe in freedom of speech, but where you
7 have people who are repeatedly carrying out inaccuracies
8 and have been shown to do so, then they should be held
9 to account. That is the issue. I don't have a problem
10 with somebody purporting a theory, writing fiction,
11 suggestions, but clearly we've got to a stage where
12 substandard reporting and sources, unnamed, made-up,
13 non-verifiable, are a daily occurrence.
14 LORD JUSTICE LEVESON: Yes. I wasn't criticising you at
15 all, but I was simply seeking to explain why that
16 particular remedy may be very difficult to apply in this
17 context. But it's not to say there shouldn't be
18 something. Now, I'm not saying what, because that's
19 part of what I'm here for, if anything, I say
20 immediately, but you've doubtless read that different
21 people have been suggesting different models.
22 A. Sure.
23 LORD JUSTICE LEVESON: And it's actually that question which
24 is the burning part of the job that I have to do, which
25 only underlines how extremely valuable your experience
72
1 has been, and how very grateful I am for you sharing it
2 with us.
3 A. Sure.
4 MR JAY: I have no more questions, Dr McCann, Dr McCann. Is
5 there anything you want to add? Maybe Mr Sherborne has
6 a point, but that concludes all I have to ask.
7 A. No, I think we've covered all our points, thank you.
8 LORD JUSTICE LEVESON: Thank you very much. Mr Sherborne,
9 did you want to ask something?
10 MR SHERBORNE: Sir, I realise that we all need time properly
11 to digest the very uncomfortable evidence that the
12 McCanns have given. As I mentioned last week, we say
13 it's nothing short of a national scandal, but there's
14 one point I do formally want to raise. It was touched
15 on earlier.
16 We've seen representatives of the media
17 organisations stand up very quickly to respond to the
18 criticism of their newspapers --
19 LORD JUSTICE LEVESON: Is there going to be a question,
20 Mr Sherborne?
21 MR SHERBORNE: There is.
22 LORD JUSTICE LEVESON: Then I'd like to hear the question.
23 MR SHERBORNE: It's not a question. I raise this. It was
24 mentioned by the McCanns and you mentioned it as well,
25 and that is in relation to News International, and what
73
1 we do ask is they provide a response, sir, as you
2 mentioned, in relation to the publication of Kate
3 McCann's diary --
4 LORD JUSTICE LEVESON: Mr Sherborne, I think that is
5 a speech. We can discuss what we should do, and of
6 course I'm in a position to do something about it,
7 because if there's a name, then I can issue a request,
8 and I put the word "request" in inverted commas, under
9 Section 21 of the 2005 Act, and I can find out.
10 MR SHERBORNE: Sir, I understand that. It's not just the
11 byline, if I may say, with respect, because that's the
12 person who wrote the story. There is also the question,
13 which I'm sure the McCanns would like to be dealt with,
14 if possible, which is who obtained and in what
15 circumstances they obtained the diary from the
16 Portuguese police.
17 LORD JUSTICE LEVESON: I understand.
18 MR SHERBORNE: That's a decision at a higher level.
19 LORD JUSTICE LEVESON: That's a thread, and I'm absolutely
20 alert to the point. I really am.
21 MR SHERBORNE: I'm very grateful.
22 LORD JUSTICE LEVESON: Thank you.
23 Dr McCann, Dr McCann, thank you very much indeed.
24 I can only wish you everything well in your continuing
25 search for Madeleine.
74
1 MR McCANN: Thank you.
2 MRS McCANN: Thank you.
3 LORD JUSTICE LEVESON: Thank you.
4 MR JAY: Sir, I've been handed something I'm not sure I can
5 ingest immediately. It's probably something that can be
6 dealt with as between two of the core participants in
7 the first instance, rather than troubling you, and if it
8 can't, we'll come back to it tomorrow morning.
9 LORD JUSTICE LEVESON: All right. Is there anything else
10 that I can deal with now?
11 Discussion re procedure
12 MR JAY: There are two issues. First of all, there's HJK
13 for tomorrow, and I'm going to leave Mr Barr to deal
14 with that.
15 LORD JUSTICE LEVESON: Yes.
16 MR JAY: Secondly, over lunch I've heard various proposed
17 additional redactions from Mr Garnham in relation,
18 I think, to at least two witnesses' evidence tomorrow.
19 To be clear, the core participants have seen witness
20 statements in unredacted form, so they know what the
21 maximum scope of the evidence is going to be and they
22 can provide lines of questioning to us.
23 Mr Garnham has various concerns, which I hadn't been
24 able to apply my mind to in any detail since I was
25 thinking about other things over the short adjournment,
75
1 in particular the evidence we have just heard.
2 I imagine his concern is what is the final version of
3 the witness statement which is going to be placed in the
4 public domain and on the screens here tomorrow morning?
5 If we spend time discussing it or negotiating the
6 contents of the proposed redactions, we are likely to
7 run into a cul de sac, but on the other hand this is
8 a public Inquiry and I don't wish to stifle the
9 presentation and production of evidence which should be
10 provided.
11 I think what I would propose on this occasion,
12 because I don't really want to spend time debating this,
13 there is really quite a lot else to do overnight, is
14 that if the other core participants agree, and they
15 don't even know what the proposed redactions are, we
16 live with the redactions Mr Garnham has proposed.
17 Those, therefore, or rather the witness statement
18 goes on the screen in line with those redactions, but
19 then if there's an objection by anyone tomorrow morning
20 that the proposed redactions go too far or are not
21 substantiated, we then address the objections on that
22 basis.
23 LORD JUSTICE LEVESON: Yes.
24 MR JAY: That, in my submission, will be quicker. However,
25 what I'm not suggesting is some sort of procedure which
76
1 ordinarily applies, namely the default position is that
2 which the MPS would desire, because that is not right,
3 without further submission.
4 LORD JUSTICE LEVESON: It's not what I've said. Indeed,
5 quite the reverse.
6 MR JAY: Yes.
7 LORD JUSTICE LEVESON: I've said the opposite.
8 MR JAY: Precisely.
9 I am proposing with a degree of reluctance
10 a pragmatic solution which will speed things up, but I'm
11 not endorsing a procedure which is going to apply more
12 generally. Anybody can turn up tomorrow morning and say
13 no, that redaction is inappropriate, we should lift it,
14 or indeed, the more effective way of dealing with it is
15 that we'll just hear the evidence and then the witness
16 statement can be put in a different form online a little
17 bit later.
18 It's not as if the public nature of the Inquiry is
19 going to be disrupted save for a short period of time,
20 but I really don't want to spend time now involving
21 other core participants and discussing the precise text
22 of redactions. I will live with what Mr Garnham has
23 proposed, with reluctance, and then we'll have to think
24 of a way forward for the future.
25 LORD JUSTICE LEVESON: I think it's very important that one
77
1 goes back to thinking about what truly would potentially
2 prejudice a criminal investigation or prosecution.
3 MR JAY: Yes.
4 LORD JUSTICE LEVESON: In the very unusual circumstances of
5 this case, where there is in fact a great deal already
6 in the public domain, and one knows that if there is to
7 be a criminal prosecution, it's a long way down the
8 track. But I understand Mr Garnham's point,
9 I understand your approach, I am content to follow it,
10 but we have to devise a mechanism whereby these concerns
11 about redactions are provided perhaps rather sooner or
12 dealt with rather sooner so that we're not in the
13 position of adopting this approach. Right?
14 MR JAY: The whole issue of redactions is beginning to cause
15 us concern that we have to prioritise a number of
16 things. The main priority is to ensure that the
17 evidence comes out clearly, that lines of questioning
18 from the core participants are accommodated, and we give
19 proper thought to the evidence, since that is the public
20 face of the Inquiry. We spend hours on redactions each
21 day that will divert us from --
22 LORD JUSTICE LEVESON: Redactions should be the exception
23 rather than the rule.
24 MR JAY: Yes indeed they should.
25 LORD JUSTICE LEVESON: Those preparing the statements know
78
1 the position, know what I've said, they know that
2 I don't wish to prejudice any continuing investigation
3 or potential prosecution if there is to be one, and
4 therefore they should be prepared on that basis and I'll
5 require some convincing that sensible lines haven't been
6 drawn.
7 MR JAY: Yes. We may need to come back to that which we
8 were discussing this morning. However, in the first
9 instance may I invite Mr Barr to deal with HJK who is
10 giving evidence first thing tomorrow morning?
11 LORD JUSTICE LEVESON: Right. Mr Barr, I've seen the
12 application made on behalf of HJK. I'm conscious that
13 the protocol in relation to anonymity by witnesses has
14 not yet been promulgated. That's in part, as I said,
15 because each time I've thought I've done it, there's
16 been another set of submissions and I've had to go back
17 to it merely to make sure that I've considered
18 everybody's submissions, but it seems to me, and I'll
19 hear anybody who wants to suggest to the contrary, that
20 the position of HJK is very different to the position of
21 journalists and others who wish to give evidence
22 anonymously.
23 This is a person whose privacy is presently
24 protected. In other words, he's not seeking to say of
25 any outlet, "They are about to do something outrageous
79
1 or breach my privacy", because he has protection in
2 relation to that. He is, however, going to talk about,
3 as I read his draft statement, the impact upon him in
4 relation to the issue -- the main issue that we've been
5 discussing, the question of interception. Is that
6 right?
7 MR BARR: That absolutely right, sir. An open application
8 was made by HJK, it's been circulated to the core
9 participants. It sets out at paragraph 5 a number of
10 protective measures which are sought. I'm not going to
11 read them out verbatim unless you invite me to but I can
12 summarise what their effect would be.
13 It would be essentially that the public would be
14 excluded from this room whilst HJK gives evidence.
15 There will be no video or audio broadcast of HJK's
16 evidence, and confirmation will be sought that the
17 equipment is off before HJK enters the room. A live
18 transcript will also be turned off. A transcript of the
19 evidence, though, will be promulgated by the Inquiry
20 after he has given evidence and those who represent him
21 have been able to confirm that to put out the transcript
22 will not violate the witness's right to privacy.
23 LORD JUSTICE LEVESON: We'll all know at the time when it
24 happens, won't we, because the real point is that HJK's
25 concern is that in the anxiety of giving evidence, and
80
1 I have no doubt there are some people in the room today
2 who will understand that, that he will say something
3 that he didn't mean to say and that would therefore
4 compromise the privacy that he is seeking to protect.
5 But the idea is that the core participants, their
6 lawyers should be here, and they will actually see HJK
7 and hear him, but that it will have no wider
8 promulgation, although immediately after his evidence is
9 concluded, and I emphasise that word, his transcript
10 will be made available.
11 MR BARR: That's right, sir. The final matter is that he's
12 submitted a confidential annex and unsurprisingly the
13 application is that that confidential annex will not be
14 referred to during evidence.
15 LORD JUSTICE LEVESON: He explains why he seeks the relief
16 that he seeks.
17 MR BARR: The information in the confidential annex combined
18 with the closed application does precisely that, sir.
19 And could I submit that these are appropriate measures
20 which are a proportionate way of safeguarding this
21 witness's privacy.
22 LORD JUSTICE LEVESON: All right. Thank you very much.
23 I make it clear that I do not intend to use HJK as
24 a template. I don't think it's got any relevance at all
25 to the issues of anonymity that are raised in relation
81
1 to journalists. I don't believe he will be giving any
2 evidence specifically touching a named person or taking
3 any further that which we already know in relation to
4 interception.
5 Does anybody have any observations to make about the
6 application that's been made?
7 Right, thank you. I make orders accordingly, and
8 possibly they could be drawn up in appropriate form so
9 that I have complied with the terms of the legislation.
10 MR BARR: Sir, I'm sure that that could be done.
11 LORD JUSTICE LEVESON: Thank you very much. So it's
12 important to underline that first thing tomorrow morning
13 we will be closed. I don't apprehend it will take very
14 long, but for the public and the press, save for those
15 who are core participants and attending as core
16 participants, they will have the unenviable problem of
17 just having to wait for us.
18 Right. Is there anything else?
19 MR JAY: I have now ingested this correspondence and I'm
20 going to be quite short about it. One core participant
21 is complaining about another core participant's media
22 blog regarding evidence we heard this morning. They can
23 sort it out between themselves.
24 LORD JUSTICE LEVESON: Thank you very much. If anybody
25 wants to bring anything to my attention because they
82
1 feel it's necessary, then they can do so, but they'd
2 better have a pretty good reason.
3 Has the position that was being discussed just
4 before lunch been resolved?
5 MR JAY: I'm not sure. I think it depended a bit on
6 Mr Caplan, but --
7 MR CAPLAN: Can I say this, we're not pursuing that matter
8 at the moment.
9 LORD JUSTICE LEVESON: Right, thank you very much indeed.
10 Thank you very much indeed.
11 (4.10 pm)
12 (The hearing adjourned until 10 o'clock the following day)
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16 mentioned a Portuguese translation, which may be a clear
17 indication of provenance but perhaps I can take this
18 quite shortly, that the judicial or police authorities
19 in Portugal had obtained or had seized a copy of your
20 diary, or perhaps it was the original, in August 2007;
21 is that right?
22 MRS McCANN: Yes, it was --
23 Q. We're talking about a hard copy, manuscript document?
24 MRS McCANN: It was just handwritten. They'd come and said
25 they had taken clothes from the villa and we had to
49
1 leave, and when we got back later that day, they said
2 they'd also taken my diaries as well, which I have to
3 say was a little bit of a shock, but it did come back to
4 me about 24, 48 hours later, so I obtained the original
5 copy. Obviously, photocopies were taken during that
6 period.
7 Q. Yes. It wasn't clear from your statement, but it now
8 is. It was within quite a short space of time that the
9 original was returned to you, you believe by order of
10 a Portuguese judge, so it sounds as if the initial
11 seizure had been a step too far, or whatever. But
12 a copy of the original must have been taken by someone,
13 presumably someone within the Portuguese police or
14 judicial authorities; is that correct?
15 MR McCANN: I think it's clear that the police had copied
16 the journal and had it translated, and of course at the
17 time we didn't understand why the journal could have
18 been relevant because Kate only started keeping it
19 a couple of weeks after Madeleine was taken, so we
20 didn't know there was a copy until the file was released
21 the following summer, but within the file, the
22 Portuguese judicial file, there is an order from the
23 judge, who's read the translation and says, "This is of
24 no interest to the investigation, it's Kate's personal
25 thoughts and should not ..." and he actually used the
50
1 word "violation".
2 MRS McCANN: He used the word "violation". He said use of
3 which would be a violation of its author.
4 MR McCANN: And ordered that any copies be destroyed.
5 LORD JUSTICE LEVESON: And further investigation of that has
6 revealed, if anything? To unpick where this came from?
7 MR McCANN: I would like further investigation as to where
8 it came from.
9 MRS McCANN: An investigation.
10 MR McCANN: Because clearly it was an illegal copy.
11 MR JAY: I think what it relevant, and I think this has
12 already come out from Dr Kate McCann's evidence, is that
13 one or two things were lost in the translation, or
14 changed, which indicates that the piece in the
15 News of the World was a translation from the Portuguese.
16 MR McCANN: Yes.
17 Q. Because had it been precisely verbatim, it might have
18 led us --
19 MRS McCANN: Very subtle changes but things like where
20 I said I was "really upset", it says I was "fed up". It
21 does change the meaning slightly.
22 Q. It may be we can investigate that or it may be that we
23 will receive an admission as to --
24 LORD JUSTICE LEVESON: I'd like to know whether there is a
25 byline.
51
1 MRS McCANN: It would be nice to know the source.
2 LORD JUSTICE LEVESON: Is there a byline on the article?
3 MR JAY: It says "in her own words".
4 LORD JUSTICE LEVESON: Yes, yes, yes, I understand that, but
5 is there a reporter's name associated with it?
6 MR JAY: Pardon me, yes, there is.
7 LORD JUSTICE LEVESON: There you are, there's a potential
8 line of inquiry.
9 MR JAY: It's a point I'd like to think can be dealt with
10 very quickly by someone. It can be confirmed, because
11 it's pointless denying it really. There's only one
12 reasonable inference here.
13 You do refer in paragraph 93 to a conversation which
14 was reported to you from Clarence with the deputy editor
15 of the News of the World as he then was, Mr Ian
16 Edmondson. Can you tell us a little bit about that?
17 MR McCANN: I think the first thing to say is that Clarence
18 would speak to Ian Edmondson, who was deputy editor and
19 was probably responsible for most of the stories about
20 Madeleine at that time. So Clarence spoke to Ian on
21 a regular basis and one or two of the News of the World
22 reporters. Clarence had mentioned it to me, just saying
23 that the News of the World had indicated that they would
24 do a supportive story, mainly attacking the Portuguese
25 police, but generally supportive. That was it. There
52
1 was no mention of having a copy of Kate's diary, no
2 mention that they were intending to publish it verbatim.
3 So as Kate has already said, it was a complete shock
4 when we heard that it was printed.
5 Q. Yes. They have breached a number of tortious
6 obligations which it's not necessary to spell out. It
7 culminated in a complaint, the possibility of
8 litigation, but that was avoided by an apology from the
9 News of the World and the payment of a further donation
10 to the fund for the search for Madeleine; is that
11 correct?
12 A. Mm.
13 Q. I'm just going to touch upon the section continuing the
14 relationship with the press. I am not going to cover
15 paragraph 97 unless I'm asked to specifically. If you
16 wish me to I will, but I wasn't minded to. I was going
17 to ask you though about paragraph 100.
18 A. I mean, I think 97's probably important.
19 Q. Okay, well tell us about it in your own words.
20 A. For one of the stories that was not published and isn't
21 libellous, not defamatory, but we were alerted to it and
22 it was done by a freelance journalist who has written
23 many inaccurate stories, and had submitted it, I think
24 it was to the People, if I'm right, the People on
25 Sunday, and the editor or the deputy editor called
53
1 Clarence just to say they were running this, this was on
2 the evening of the Saturday, and Clarence phoned us and
3 it was complete nonsense, but it was basically saying
4 that we were undergoing IVF treatment with a view to
5 getting a new baby to replace Madeleine.
6 MRS McCANN: I think the important thing, this demonstrates
7 it's not just the articles that have been published that
8 have been a problem. We've had many weekends destroyed
9 because we've had to try and stop articles like this
10 from actually ending up in the press. And weekends are
11 important for Gerry, that's our only family time. We've
12 had to involve lawyers on --
13 MR McCANN: Friday nights. Another example there which
14 I don't think is in our evidence, but again it
15 transpired on a Friday evening, is journalists had gone
16 to speak to my mum, I think they said even -- you know,
17 Clarence said it was okay and my mum let them in and
18 a lady journalist took a copy of an unpublished
19 photograph of Kate, myself and Madeleine when we lived
20 in Amsterdam that was very special to us and they were
21 going to publish it in a Scottish newspaper on the
22 Sunday and we had to involve Adam and Isabel from
23 Carter Ruck to get that stopped.
24 I think the only way we managed to get a very
25 stroppy interaction with the editor was that we own the
54
1 copyright of the picture and they were not in the least
2 apologetic.
3 MRS McCANN: They were fighting it, actually, saying, "We've
4 got the picture". It was like, "It's our daughter."
5 Incredible.
6 MR McCANN: The impact that these things have in what should
7 be a little bit of respite, but there have been several
8 occasions where we've gone behind the scenes at the
9 eleventh hour.
10 Q. Thank you. Then paragraph 100, you deal with a piece in
11 the Daily Mail, quite recently, July of this year, about
12 an alleged reported sighting in India. What are your
13 feelings about that, please?
14 A. It's probably one of the most recent examples of what
15 I would say is the contempt for Madeleine and her
16 safety. There was no check. This sighting had been
17 reported to the police, I think we were actually on
18 holiday. They emailed us a photograph and we quickly
19 indicated that it was not Madeleine, and as far as we
20 were concerned, it was dealt with. And then a day or
21 two later, it's published and the newspaper on that
22 occasion have chosen to publish it and they may want to
23 justify why, but from our point of view, they don't know
24 whether it's true, they haven't contacted us, and
25 additionally we have the issue that if this really was
55
1 a genuine sighting of Madeleine, then her captors may be
2 alerted and move her.
3 So the story has precedence over the safety of our
4 child. And that's clear. And that has been done by,
5 I think, every single newspaper, as well as similar
6 instances of amateur sleuthing and details about the
7 investigation which should only be known to the
8 witnesses and the potential to contaminate evidence by
9 having read something that you shouldn't really know
10 about, and all of the newspapers and broadcasters have
11 been guilty of it.
12 Q. Thank you. Out of sequence, I'm then going to come back
13 to the PCC because it's a more general point, I think,
14 under the heading "Kate's book", paragraph 111. It may
15 be in your hands as to which of you would like to deal
16 with this piece of evidence.
17 A. Sure.
18 Q. Book published in May of 2011, so we're at the fourth
19 anniversary, it was to mark that, to coincide with that.
20 Obviously a difficult decision. Do you want to tell us
21 a little bit about that?
22 MRS McCANN: You're right, it was a very difficult decision
23 for obvious reasons, for all the reasons we've been
24 discussing. But ultimately we are responsible for
25 conducting and funding the search to find our daughter.
56
1 Q. Yes.
2 MRS McCANN: And ultimately I had to make the decision, we
3 needed to raise money, I knew this was something that
4 I could do that could maintain the search and possibly
5 help us find our daughter, and that's why I took the
6 decision then to do it. Obviously in the ideal world,
7 you wouldn't choose to do anything like that.
8 Q. There was serialisation of your book in two
9 News International titles, the Sun and the Sunday Times?
10 MR McCANN: Yes.
11 Q. You talk about a meeting with Rebekah Brooks, which led
12 to a review of your case, a formal review. Just to
13 assist us a little bit with that, can you recall when
14 that was?
15 A. I think it's probably worth just elaborating a little
16 bit because it's quite a complex decision-making process
17 in terms of agreeing to serialise the book.
18 News International actually bid for the rights to
19 the book, along with Harper Collins, and one of their
20 pitches was the fact that they would serialise the book
21 across all of their titles, and we were somewhat
22 horrified at the prospect of that, given the way we'd
23 been treated in the past, and the deal was actually done
24 with the publishers, Transworld, that excluded
25 serialisation.
57
1 Now, we were subsequently approached by
2 News International and Associated to serialise the book,
3 and after much deliberation, we had a couple of meetings
4 with the general manager and -- Will Lewis and
5 Rebekah Brooks and others, and what swung the decision
6 to serialise was News International committed to backing
7 the campaign and the search for Madeleine. And that
8 passed our test of how it could help, and we had been
9 lobbying behind the scenes for two and a half years,
10 with successive Home Secretaries, to try and get
11 a review of Madeleine's case, and we felt that having
12 News International helping in that, and ultimately where
13 I think the media have helped in this situation, of
14 galvanising the public, having them reengaged with us
15 and Madeleine, is what tipped the balance.
16 Q. Her intervention was successful?
17 A. It was.
18 Q. There may not be a module three issue.
19 LORD JUSTICE LEVESON: Yes.
20 MR JAY: It's right to say in terms of the sequence of
21 events, I think the Prime Minister was involved just
22 a bit before, and then the Home Office the day after?
23 A. Yes, I think --
24 Q. The same day announced --
25 A. We had written to the Home Secretary saying that we'd be
58
1 launching the book, and asking her to update us on where
2 they had got, and we got one letter which really didn't
3 say very much, and then we did the open letter to the
4 Prime Minister, which was published on the front page of
5 the Sun.
6 Q. Turn back to the issue of the involvement of the PCC.
7 This is covered both in your witness statement and
8 in evidence you gave, Dr Gerald McCann, to the Culture,
9 Media and Sports Select Committee in 2009, and then it
10 was picked up in the second report, I think, of that
11 committee. There's a whole section of the report that
12 goes to that issue.
13 The position I think is -- I'm back in your
14 statement, paragraph 101 -- the PCC's position is that
15 at an early stage they put a message out that they were
16 ready, willing and able to assist you. This was in May
17 2007. Do you follow me?
18 A. Yes.
19 Q. I think your evidence is, well, you never got that
20 message. Was that right?
21 A. If I did, it was lost in the time when we were obviously
22 dealing with lots of things, and I would say probably
23 similar to Mrs Gascoigne who gave evidence earlier this
24 morning, that I was only vaguely aware of the PCC at
25 that time.
59
1 Q. In paragraph 103 you say:
2 "We have on a number of occasions had cause to
3 contact the PCC. The PCC was extremely helpful in
4 dealing with the unwanted intrusion into the privacy of
5 our twins."
6 Are you referring there to the business with the
7 paparazzi taking photographs when you're back in the
8 United Kingdom?
9 A. Yes.
10 MRS McCANN: That's right.
11 MR McCANN: I think we had also indicated earlier in the
12 summer of 2007 that although we tacitly agreed to having
13 photographs of us taken in Praia da Luz, largely because
14 we felt that we couldn't stop it, particularly with
15 international media being there, that as the situation
16 dragged on over months, we didn't want continued
17 photographs of Sean and Amelie to be published, and we
18 were obviously concerned at the time, they were just 2,
19 but as they got older, they could be recognised. So
20 there was an agreement -- and I can't remember exactly
21 if the PCC were involved in that, but we asked the media
22 not to publish photographs of Sean and Amelie, and that
23 was adhered to with pixelation up until we arrived back
24 in the UK and then it went out the window again.
25 Q. In terms of the PCC assisting you in relation to the
60
1 wider issue of inaccurate, unfair and sensationalist
2 reporting, it may well be that there isn't a factual
3 dispute between you and the PCC at that time, of course,
4 speaking through Sir Christopher Meyer. If you kindly
5 look under tab 9, Dr McCann, you'll see relevant
6 extracts from the report of the Culture, Media and
7 Sports Select Committee published on 9 February 2010.
8 I invite your attention -- the pagination is working --
9 on the top right-hand side of each page, to page 87.
10 A. Yes.
11 Q. You should find a heading, "The role of the PCC",
12 I hope, and then paragraph 354. There we deal with the
13 message which they say they gave to you and you've told
14 us really, well, you don't recollect it, and of course
15 a lot was going on, but there was a meeting, and this is
16 355, on 13 July 2007 --
17 LORD JUSTICE LEVESON: That was just accidental.
18 MR JAY: Yes.
19 The general thrust of what you were told by
20 Sir Christopher Meyer during the course of an informal
21 conversation, is this correct, is that if you wanted to
22 deal with the issue of libel, well, then the route was
23 legal recourse, legal action. But if you wanted to deal
24 with it in some other way, then the PCC might be able to
25 help?
61
1 A. Yes.
2 Q. Does that capture the sense of that meeting?
3 A. It's probably fair to put in there that I had a number
4 of conversations with Sir Christopher, primarily because
5 we became friendly with his wife, Lady Catherine,
6 through her work with PACT, so on that first occasion
7 I met Sir Christopher and he broadly asked, "How are the
8 media treating you?" and we were very open and at that
9 point we said, "Considering the interest, not too bad",
10 and we didn't really have too much in the way of
11 specific complaints.
12 I did have further informal conversations and they
13 also dealt with correspondence from Kingsley Napley over
14 the period, but the gist of the conversations, and most
15 of my dialogue with him, informal rather than written,
16 was that we agreed with our legal advice and we took the
17 best legal advice we could get, that the way to stop
18 this was to take legal action and not to go to the PCC,
19 and I think Sir Christopher agreed with that.
20 Q. That's a fair summary, Dr McCann. It's what the
21 committee think as well, although Paul Dacre expressed
22 disappointment that you didn't make a formal complaint
23 to the PCC, although Sir Christopher disagreed with
24 Paul Dacre so we have two views --
25 A. I think the ultimate thing was we discussed a course of
62
1 action and our advice, which was given in no uncertain
2 terms, this is legal advice, was that the PCC were not
3 fit to deal with the accusations, the nature of them,
4 the number of them and the severity.
5 Q. The Inquiry will note, but it's not necessary for me to
6 read it out, the conclusions of the Select Committee on
7 these issues. They start at paragraph 364 and 365 in
8 bold. And the direct criticism is made by the Select
9 Committee of the PCC that the press were beginning to
10 ignore the requirement of the code and the PCC remained
11 silent.
12 Then under the heading "Lessons learnt", they review
13 your case. They rightly point out that this was a very
14 unusual case. They state that the coverage was
15 "freakish", and then their conclusions are set out at
16 paragraphs 373 and 375.
17 Perhaps I should read those out?
18 LORD JUSTICE LEVESON: The word "freakish" is the committee
19 saying it's far from clear that the McCann coverage was
20 really so freakish.
21 MR JAY: Paragraph 373:
22 "The newspaper industry's assertion that the McCann
23 case is a one-off event shows that it is in denial about
24 the scale and gravity of what went wrong and about the
25 need to learn from those mistakes. In any other
63
1 industry suffering such a collective breakdown, as for
2 example in the banking sector now, any regulator worth
3 its salt would have instigated an inquiry. The press
4 indeed would have been clamouring for it to do so. It's
5 an indictment on the PCC's record that it signally
6 failed to do so.
7 "The industry's words and actions suggest a desire
8 to bury the affair without confronting its serious
9 implications, the kind of avoidance which newspapers
10 would criticise mercilessly and rightly if it occurred
11 in any other part of society. The PCC, by failing to
12 take firm action, let slip an opportunity to prevent or
13 at least mitigate some of the most damaging aspects of
14 this episode and in so doing lent credence to the view
15 that it lacks teeth and is slow to challenge the
16 newspaper industry."
17 Is there anything you wish to add or subtract from
18 that?
19 A. I think I would agree with it, and it's probably for
20 others to decide whether the PCC could have changed it.
21 I think that's a moot point.
22 Q. Can I deal now with some general points, including the
23 four general points you made at the start? But before
24 I deal with those four points, I'm back to your witness
25 statement at paragraph 116.
64
1 You refer to the or a culture change which is
2 required. May I invite you, please, to put that in your
3 own words, both to identify the existing culture and
4 then the change which you think is required?
5 A. I think we can speak with experience about how powerful
6 the media are, and how much damage they can do. We've
7 already said how many good things that they have done as
8 well, so there is power, there is no doubt about it.
9 But what we see on a daily basis are front page tabloid
10 headlines in particular, sometimes followed by a clamour
11 with 24-hour news channels and Internet and a blurring
12 of the media, of stories which appear to have no factual
13 basis, or exaggerated, or distorted.
14 You've heard about several of hundreds that were
15 written about us, but we see them, I walk into the shop
16 in the hospital every day and I see front page
17 headlines, whether it's about Chris Jefferies who is
18 going to give evidence, or contestants on the X Factor,
19 and I think information has been written and lives are
20 being harmed by these stories, and something has to
21 change. A commercial imperative is not acceptable.
22 Q. Thank you. The four specific headings you've given us,
23 in one sense you've largely covered these but it's
24 helpful if we can bring the strands together.
25 The first is libel. Might it be said, and can
65
1 I just invite you to deal with this, well, this in fact
2 is an example, your case, of the system working to the
3 extent that you decide at a certain point that enough is
4 enough. Obviously as professional people you're not
5 going to put your house on the line to fund legal
6 action, but conditional fee arrangements were available,
7 you took advantage of that.
8 Within a reasonably swift timeframe, and it's for
9 others to decide whether it was quick enough or
10 whatever, the position of Express Newspapers changes,
11 they admit liability, they make a statement in open
12 court, they pay £550,000, which in the scale of things
13 is a significant amount of money with modern libel
14 awards, and there's a front-page apology. Is that an
15 example of the system working or do you have a different
16 take on what I've just said?
17 A. I think it is an example of the system working in part,
18 however we would much rather we weren't awarded any
19 damages and the stories had not been published, and
20 I think it's very important to emphasise that we have
21 experienced long-lasting damage as a result of the
22 headlines and the media coverage, including recent trips
23 to Holland and Spain where our taxi driver said, "Oh,
24 you're the parents who are accused of killing your own
25 daughter, what happened?" and secondly in Spain where
66
1 they showed a film that supposedly had us showing
2 tablets that were tranquillisers that we'd supposedly
3 given to children, stated as virtually fact.
4 So although we've worked incredibly hard to change
5 things in the UK, the damage is more widespread.
6 So the money is only for me -- and I understand that
7 the costs may be more of a deterrent than the damages,
8 per se, but it's only a partial compensation, and once
9 it's there, yes, the apology goes part of the way, but
10 as we've seen, often the reporting is much wider than
11 the original offending outlet, and the damage is
12 long-lasting.
13 And if you go on the Internet now, which our nearly
14 7-year-old twins will be doing, most of these
15 allegations are still there and we will have to continue
16 dealing with them going forward.
17 Q. You make two points there, I think, Dr McCann. The
18 first is the point damages are never proper recompense,
19 and it's right, the judges recognise that, whether it's
20 a reputation case or personal injuries case, the money
21 can never provide reparation.
22 The particular point in your case is there's an
23 international dimension and whatever happens in the
24 United Kingdom in terms of statements in open court,
25 they're not going to carry any mileage or impact outside
67
1 this jurisdiction.
2 A. No.
3 Q. Hence your experiences in Spain and the Netherlands.
4 A. Correct.
5 Q. That's a helpful observation. What about your second
6 heading, which was privacy laws? Could you help us
7 a bit more with that, please?
8 A. Yeah. I think it's something obviously we probably
9 hadn't thought too much about before we found ourselves
10 in the situation that we are. You take your anonymity
11 for granted. What I find disturbing, clearly, when
12 you're being followed, you're being put in danger by
13 either reporters' or photographers' behaviour and
14 secondly I think it is probably an anomaly within the
15 legal system that a commercial organisation can take
16 a photograph of you, use it in their product, which they
17 sell and make a profit without your consent, and I think
18 that should be remedied.
19 I think if I'm here, I know I'm in public, I'm
20 giving evidence, I understand that images will be used,
21 I fully understand that and I'm implicitly consenting to
22 it, but whether it's us going for a run or driving out
23 of our front drive, and particularly with children,
24 I don't think it should be allowed. I think you should
25 not be allowed to publish photographs of private
68
1 individuals going about their private business without
2 their explicit consent, signed.
3 Q. The existing PCC Editors' Code speaks of either
4 a private place or a public place where there's
5 a reasonable expectation of privacy. I think your
6 evidence is suggesting that that latter concept is quite
7 a difficult one to understand and in particular to
8 apply.
9 A. Mm-hm.
10 Q. So that indeed further thought need be given to that.
11 The third issue we may or may not have brought out
12 adequately but please expand it if you wish to.
13 Contempt for the judicial process, namely the secrecy
14 implications of the Portuguese law, I think, and for
15 your child's safety.
16 A. Yes.
17 Q. You have addressed that issue, but is there anything you
18 would like to expand, bring any strands together?
19 A. Yes, it wouldn't be explicit to judicial secrecy in
20 Portugal, and by judicial I meant the whole process
21 which in Portugal is obviously overseen by a judge. So
22 you have information. We were told we were under
23 judicial secrecy not to give details of events. What
24 became very apparent was, you know, the media were
25 trying to create a timeline of what happened, and we had
69
1 obviously created a timeline and given it to the police
2 and tried to narrow down to the closest minutes when we
3 think Madeleine was taken to help the investigation.
4 But when that information goes into the public
5 domain and the abductor shouldn't know it, or the only
6 person who should know it were the people who were
7 there, then that's a concern. It can contaminate
8 evidence. You could incriminate yourself by knowing
9 something that you shouldn't have known.
10 So that's the first process, and I think clearly, as
11 again I'm not a lawyer and I may be speaking out of
12 turn, but it's probably clear when there is a court case
13 on in the United Kingdom, about what's to be reported
14 and what not, and the police are very careful about
15 which information they give to the media in this
16 country, but for me there was contempt about that whole
17 investigative process. There was no regard for the
18 outcome. It was much more important for the media
19 outlets to have the detail or perhaps to have the
20 contradictions, and the salacious aspects that followed
21 it.
22 And then the point about Madeleine has never been
23 raised, I think, before, and clearly every outlet,
24 I think, has been guilty of this, about reporting
25 sightings, suspicious people, without giving it to the
70
1 proper authorities. And that is of grave concern, and
2 obviously our concern and focus is Madeleine, but it
3 applies to other cases as well.
4 Q. Your fourth heading is quite a broad one: acceptable
5 standards.
6 A. Yes. I did have a quick look at the National Union of
7 Journalist's submission and there are standards, but
8 there are no penalties for not sticking to them, and
9 whatever your profession is, particularly in this
10 country, then there is fairly strong regulation which we
11 have to abide to, and I have seen no individual
12 journalist or editor brought to account over the
13 stories, be it within Express Newspapers Group or
14 Associated or any of the other groups and I think if
15 there are repeated offenders, then they should lose
16 their privilege of practising as a journalist.
17 LORD JUSTICE LEVESON: Quite difficult, that. I understand
18 exactly why you're saying that, but just let me share
19 with you the difficulty, that what journalists do is
20 exercise the right of free speech, and whereas you as
21 doctors require licence to practise medicine, and if you
22 are taken to the GMC then the GMC have all sorts of
23 sanctions available, it's quite difficult in relation to
24 the exercise of free speech.
25 That's not to say that there shouldn't be penalties,
71
1 there shouldn't be some mechanism whereby there's
2 a holding to account for what you've done.
3 A. Sure.
4 LORD JUSTICE LEVESON: But --
5 A. Thank you, sir. I would like to emphasise that
6 I strongly believe in freedom of speech, but where you
7 have people who are repeatedly carrying out inaccuracies
8 and have been shown to do so, then they should be held
9 to account. That is the issue. I don't have a problem
10 with somebody purporting a theory, writing fiction,
11 suggestions, but clearly we've got to a stage where
12 substandard reporting and sources, unnamed, made-up,
13 non-verifiable, are a daily occurrence.
14 LORD JUSTICE LEVESON: Yes. I wasn't criticising you at
15 all, but I was simply seeking to explain why that
16 particular remedy may be very difficult to apply in this
17 context. But it's not to say there shouldn't be
18 something. Now, I'm not saying what, because that's
19 part of what I'm here for, if anything, I say
20 immediately, but you've doubtless read that different
21 people have been suggesting different models.
22 A. Sure.
23 LORD JUSTICE LEVESON: And it's actually that question which
24 is the burning part of the job that I have to do, which
25 only underlines how extremely valuable your experience
72
1 has been, and how very grateful I am for you sharing it
2 with us.
3 A. Sure.
4 MR JAY: I have no more questions, Dr McCann, Dr McCann. Is
5 there anything you want to add? Maybe Mr Sherborne has
6 a point, but that concludes all I have to ask.
7 A. No, I think we've covered all our points, thank you.
8 LORD JUSTICE LEVESON: Thank you very much. Mr Sherborne,
9 did you want to ask something?
10 MR SHERBORNE: Sir, I realise that we all need time properly
11 to digest the very uncomfortable evidence that the
12 McCanns have given. As I mentioned last week, we say
13 it's nothing short of a national scandal, but there's
14 one point I do formally want to raise. It was touched
15 on earlier.
16 We've seen representatives of the media
17 organisations stand up very quickly to respond to the
18 criticism of their newspapers --
19 LORD JUSTICE LEVESON: Is there going to be a question,
20 Mr Sherborne?
21 MR SHERBORNE: There is.
22 LORD JUSTICE LEVESON: Then I'd like to hear the question.
23 MR SHERBORNE: It's not a question. I raise this. It was
24 mentioned by the McCanns and you mentioned it as well,
25 and that is in relation to News International, and what
73
1 we do ask is they provide a response, sir, as you
2 mentioned, in relation to the publication of Kate
3 McCann's diary --
4 LORD JUSTICE LEVESON: Mr Sherborne, I think that is
5 a speech. We can discuss what we should do, and of
6 course I'm in a position to do something about it,
7 because if there's a name, then I can issue a request,
8 and I put the word "request" in inverted commas, under
9 Section 21 of the 2005 Act, and I can find out.
10 MR SHERBORNE: Sir, I understand that. It's not just the
11 byline, if I may say, with respect, because that's the
12 person who wrote the story. There is also the question,
13 which I'm sure the McCanns would like to be dealt with,
14 if possible, which is who obtained and in what
15 circumstances they obtained the diary from the
16 Portuguese police.
17 LORD JUSTICE LEVESON: I understand.
18 MR SHERBORNE: That's a decision at a higher level.
19 LORD JUSTICE LEVESON: That's a thread, and I'm absolutely
20 alert to the point. I really am.
21 MR SHERBORNE: I'm very grateful.
22 LORD JUSTICE LEVESON: Thank you.
23 Dr McCann, Dr McCann, thank you very much indeed.
24 I can only wish you everything well in your continuing
25 search for Madeleine.
74
1 MR McCANN: Thank you.
2 MRS McCANN: Thank you.
3 LORD JUSTICE LEVESON: Thank you.
4 MR JAY: Sir, I've been handed something I'm not sure I can
5 ingest immediately. It's probably something that can be
6 dealt with as between two of the core participants in
7 the first instance, rather than troubling you, and if it
8 can't, we'll come back to it tomorrow morning.
9 LORD JUSTICE LEVESON: All right. Is there anything else
10 that I can deal with now?
11 Discussion re procedure
12 MR JAY: There are two issues. First of all, there's HJK
13 for tomorrow, and I'm going to leave Mr Barr to deal
14 with that.
15 LORD JUSTICE LEVESON: Yes.
16 MR JAY: Secondly, over lunch I've heard various proposed
17 additional redactions from Mr Garnham in relation,
18 I think, to at least two witnesses' evidence tomorrow.
19 To be clear, the core participants have seen witness
20 statements in unredacted form, so they know what the
21 maximum scope of the evidence is going to be and they
22 can provide lines of questioning to us.
23 Mr Garnham has various concerns, which I hadn't been
24 able to apply my mind to in any detail since I was
25 thinking about other things over the short adjournment,
75
1 in particular the evidence we have just heard.
2 I imagine his concern is what is the final version of
3 the witness statement which is going to be placed in the
4 public domain and on the screens here tomorrow morning?
5 If we spend time discussing it or negotiating the
6 contents of the proposed redactions, we are likely to
7 run into a cul de sac, but on the other hand this is
8 a public Inquiry and I don't wish to stifle the
9 presentation and production of evidence which should be
10 provided.
11 I think what I would propose on this occasion,
12 because I don't really want to spend time debating this,
13 there is really quite a lot else to do overnight, is
14 that if the other core participants agree, and they
15 don't even know what the proposed redactions are, we
16 live with the redactions Mr Garnham has proposed.
17 Those, therefore, or rather the witness statement
18 goes on the screen in line with those redactions, but
19 then if there's an objection by anyone tomorrow morning
20 that the proposed redactions go too far or are not
21 substantiated, we then address the objections on that
22 basis.
23 LORD JUSTICE LEVESON: Yes.
24 MR JAY: That, in my submission, will be quicker. However,
25 what I'm not suggesting is some sort of procedure which
76
1 ordinarily applies, namely the default position is that
2 which the MPS would desire, because that is not right,
3 without further submission.
4 LORD JUSTICE LEVESON: It's not what I've said. Indeed,
5 quite the reverse.
6 MR JAY: Yes.
7 LORD JUSTICE LEVESON: I've said the opposite.
8 MR JAY: Precisely.
9 I am proposing with a degree of reluctance
10 a pragmatic solution which will speed things up, but I'm
11 not endorsing a procedure which is going to apply more
12 generally. Anybody can turn up tomorrow morning and say
13 no, that redaction is inappropriate, we should lift it,
14 or indeed, the more effective way of dealing with it is
15 that we'll just hear the evidence and then the witness
16 statement can be put in a different form online a little
17 bit later.
18 It's not as if the public nature of the Inquiry is
19 going to be disrupted save for a short period of time,
20 but I really don't want to spend time now involving
21 other core participants and discussing the precise text
22 of redactions. I will live with what Mr Garnham has
23 proposed, with reluctance, and then we'll have to think
24 of a way forward for the future.
25 LORD JUSTICE LEVESON: I think it's very important that one
77
1 goes back to thinking about what truly would potentially
2 prejudice a criminal investigation or prosecution.
3 MR JAY: Yes.
4 LORD JUSTICE LEVESON: In the very unusual circumstances of
5 this case, where there is in fact a great deal already
6 in the public domain, and one knows that if there is to
7 be a criminal prosecution, it's a long way down the
8 track. But I understand Mr Garnham's point,
9 I understand your approach, I am content to follow it,
10 but we have to devise a mechanism whereby these concerns
11 about redactions are provided perhaps rather sooner or
12 dealt with rather sooner so that we're not in the
13 position of adopting this approach. Right?
14 MR JAY: The whole issue of redactions is beginning to cause
15 us concern that we have to prioritise a number of
16 things. The main priority is to ensure that the
17 evidence comes out clearly, that lines of questioning
18 from the core participants are accommodated, and we give
19 proper thought to the evidence, since that is the public
20 face of the Inquiry. We spend hours on redactions each
21 day that will divert us from --
22 LORD JUSTICE LEVESON: Redactions should be the exception
23 rather than the rule.
24 MR JAY: Yes indeed they should.
25 LORD JUSTICE LEVESON: Those preparing the statements know
78
1 the position, know what I've said, they know that
2 I don't wish to prejudice any continuing investigation
3 or potential prosecution if there is to be one, and
4 therefore they should be prepared on that basis and I'll
5 require some convincing that sensible lines haven't been
6 drawn.
7 MR JAY: Yes. We may need to come back to that which we
8 were discussing this morning. However, in the first
9 instance may I invite Mr Barr to deal with HJK who is
10 giving evidence first thing tomorrow morning?
11 LORD JUSTICE LEVESON: Right. Mr Barr, I've seen the
12 application made on behalf of HJK. I'm conscious that
13 the protocol in relation to anonymity by witnesses has
14 not yet been promulgated. That's in part, as I said,
15 because each time I've thought I've done it, there's
16 been another set of submissions and I've had to go back
17 to it merely to make sure that I've considered
18 everybody's submissions, but it seems to me, and I'll
19 hear anybody who wants to suggest to the contrary, that
20 the position of HJK is very different to the position of
21 journalists and others who wish to give evidence
22 anonymously.
23 This is a person whose privacy is presently
24 protected. In other words, he's not seeking to say of
25 any outlet, "They are about to do something outrageous
79
1 or breach my privacy", because he has protection in
2 relation to that. He is, however, going to talk about,
3 as I read his draft statement, the impact upon him in
4 relation to the issue -- the main issue that we've been
5 discussing, the question of interception. Is that
6 right?
7 MR BARR: That absolutely right, sir. An open application
8 was made by HJK, it's been circulated to the core
9 participants. It sets out at paragraph 5 a number of
10 protective measures which are sought. I'm not going to
11 read them out verbatim unless you invite me to but I can
12 summarise what their effect would be.
13 It would be essentially that the public would be
14 excluded from this room whilst HJK gives evidence.
15 There will be no video or audio broadcast of HJK's
16 evidence, and confirmation will be sought that the
17 equipment is off before HJK enters the room. A live
18 transcript will also be turned off. A transcript of the
19 evidence, though, will be promulgated by the Inquiry
20 after he has given evidence and those who represent him
21 have been able to confirm that to put out the transcript
22 will not violate the witness's right to privacy.
23 LORD JUSTICE LEVESON: We'll all know at the time when it
24 happens, won't we, because the real point is that HJK's
25 concern is that in the anxiety of giving evidence, and
80
1 I have no doubt there are some people in the room today
2 who will understand that, that he will say something
3 that he didn't mean to say and that would therefore
4 compromise the privacy that he is seeking to protect.
5 But the idea is that the core participants, their
6 lawyers should be here, and they will actually see HJK
7 and hear him, but that it will have no wider
8 promulgation, although immediately after his evidence is
9 concluded, and I emphasise that word, his transcript
10 will be made available.
11 MR BARR: That's right, sir. The final matter is that he's
12 submitted a confidential annex and unsurprisingly the
13 application is that that confidential annex will not be
14 referred to during evidence.
15 LORD JUSTICE LEVESON: He explains why he seeks the relief
16 that he seeks.
17 MR BARR: The information in the confidential annex combined
18 with the closed application does precisely that, sir.
19 And could I submit that these are appropriate measures
20 which are a proportionate way of safeguarding this
21 witness's privacy.
22 LORD JUSTICE LEVESON: All right. Thank you very much.
23 I make it clear that I do not intend to use HJK as
24 a template. I don't think it's got any relevance at all
25 to the issues of anonymity that are raised in relation
81
1 to journalists. I don't believe he will be giving any
2 evidence specifically touching a named person or taking
3 any further that which we already know in relation to
4 interception.
5 Does anybody have any observations to make about the
6 application that's been made?
7 Right, thank you. I make orders accordingly, and
8 possibly they could be drawn up in appropriate form so
9 that I have complied with the terms of the legislation.
10 MR BARR: Sir, I'm sure that that could be done.
11 LORD JUSTICE LEVESON: Thank you very much. So it's
12 important to underline that first thing tomorrow morning
13 we will be closed. I don't apprehend it will take very
14 long, but for the public and the press, save for those
15 who are core participants and attending as core
16 participants, they will have the unenviable problem of
17 just having to wait for us.
18 Right. Is there anything else?
19 MR JAY: I have now ingested this correspondence and I'm
20 going to be quite short about it. One core participant
21 is complaining about another core participant's media
22 blog regarding evidence we heard this morning. They can
23 sort it out between themselves.
24 LORD JUSTICE LEVESON: Thank you very much. If anybody
25 wants to bring anything to my attention because they
82
1 feel it's necessary, then they can do so, but they'd
2 better have a pretty good reason.
3 Has the position that was being discussed just
4 before lunch been resolved?
5 MR JAY: I'm not sure. I think it depended a bit on
6 Mr Caplan, but --
7 MR CAPLAN: Can I say this, we're not pursuing that matter
8 at the moment.
9 LORD JUSTICE LEVESON: Right, thank you very much indeed.
10 Thank you very much indeed.
11 (4.10 pm)
12 (The hearing adjourned until 10 o'clock the following day)
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