Morning Hearing on 23 April 2012

John Ryley gave a statement at this hearing

Hearing Transcript

(11.30 am) LORD JUSTICE LEVESON Yes, Mr Barr. MR BARR Sir, good morning. Our first witness today is Mr John Ryley, the head of Sky News. JOHN HAMILTON RYLEY (affirmed) Questions by MR BARR MR BARR Mr Ryley, good morning.
A. Good morning.
Q. Could you confirm your full name, please, for the Inquiry?
A. My full name is John Hamilton Ryley.
Q. And are the contents of your witness statement true and correct to the best of your knowledge and belief?
A. They are.
Q. You are the head of news at Sky News. You've been a broadcast journalist for 25 years and head of Sky News for the last six years; is that right?
A. That is correct.
Q. As the head of Sky News, you have ultimate editorial responsibility for all of Sky News' content-gathering activities and output on all platforms?
A. That is correct.
Q. Touching briefly on the management structure at Sky News, you tell us that on the news-gathering side, there is a head of news gathering, who reports to you, and he has a head of home news reporting to him?
A. That is correct.
Q. On the output side, the executive editor reports directly to you, and he in turn has direct reports from a number of executive producers and the managing editor?
A. That is correct.
Q. You tell us that almost everything that is gathered and reported receives the attention of either the head of home news or the head of news gathering?
A. Correct.
Q. And Sky News, unsurprisingly, has a team of in-house lawyers available to assist?
A. That is correct.
Q. Can we move now to the Broadcasting Code. We're going to be coming to two instances in which a Sky journalist accessed, without authority, somebody else's email account, and so I'd like to look at the code, which is at tab 6 of your bundle, with that in mind. Can we start with the statement of principle, which we find at paragraph 8.1: "Any infringement of privacy in programmes or in connection with obtaining material included in programmes must be warranted." Do you see that?
A. I do.
Q. Then what is warranted is the subject of some guidance underneath, and the second half of that guidance is pertinent here: "If the reason is that it is in the public interest, then the broadcaster should be able to demonstrate that the public interest outweighs the right to privacy. Examples of public interest would include revealing or detecting crime, protecting public health or safety, exposing misleading claims made by individuals or organisations, or disclosing incompetence that affects the public." So that explanation deals with the public interest, amongst other things, but what it doesn't do is to deal with the use of subterfuge, does it?
A. No, it does not.
Q. If we move on now to paragraph 8.9 of the Code, which is under the heading "Gathering information, sound or images and the reuse of material". Paragraph 8.9 reads: "The means of obtaining material must be proportionate in all the circumstances and in particular to the subject matter of the programme." So that very clearly introduces the concept of proportionality in the method of news-gathering, but it doesn't in terms address the question of subterfuge, does it?
A. Correct.
Q. If we turn over the page to 8.13, there is some specific guidance about surreptitious filming. It reads: "Surreptitious filming or recording should only be used where it is warranted. Normally it would only be warranted if there is prima facie evidence of a story in the public interest and there are reasonable grounds to suspect that further material evidence could be obtained and it is necessary to the credibility and authenticity of the programme." But we find no equivalent guidance in respect of other types of subterfuge, and in particular with intercepting emails; is that fair?
A. That's fair.
Q. So if there was to be any guidance to journalists and their editors about the use of subterfuge, and in particular about the interception of email communications, it would have to be set out in an individual company's procedures?
A. (Nods head)
Q. If we go to the next tab, we have the Sky News editorial guidelines for 2007 LORD JUSTICE LEVESON Before we go to Sky News, let's keep with the code. None of this is relevant, is it? Because what you were doing wasn't merely invading somebody's privacy; it was breaching the criminal law.
A. It was. LORD JUSTICE LEVESON Well, where does the Ofcom Broadcasting Code give any authority to a breach of the criminal law?
A. It doesn't. MR BARR In relation to the same question for the editorial guidelines, we have your 2007 guidelines at tab 7. Is it right to say that it's not mentioned here either?
A. That is correct.
Q. There was a subsequent edition, the 2010 edition. Is it fair to say that those guidelines also don't touch upon this question?
A. Correct.
Q. You tell us, though, in your witness statement and I'm looking now at page 6, paragraph 15 that after considering the two incidents at Sky News, which we're going to look at in a moment, you've taken the decision to introduce written guidelines which will mandate that any future proposal to gather a story using potentially unlawful means is to be approved in advance by the relevant senior editor, the head of Sky News or designated deputy and Sky's in-house legal department. LORD JUSTICE LEVESON So does that mean that you're anticipating a conspiracy to breach the criminal law?
A. No, it does not mean that. MR BARR If we can explore a little bit about what it does mean, does it mean that any journalist in the future who thinks that it might be a good idea to do something which is prima facie unlawful for example, access a third party's email account is going not just to have to go to his line manager, but is going to have to go to you?
A. Correct. I mean, I think I ought to make the point that Sky News is first and foremost a nonstop instant news broadcaster on several different platforms, so the occasions on which Sky News in the future is likely to consider in some way doing something that it shouldn't is highly unlikely, highly unlikely indeed. But if there was such an occasion, it would now need to be a mandatory process, whereby myself or whoever is the head of Sky News or his designant, the senior editor responsible for the story and an in-house lawyer will need to agree in writing that that course of action can take place. LORD JUSTICE LEVESON I understand the point, but one has to be careful to distinguish between what is unlawful because it is potentially a civil wrong which might legitimately have a public interest answer, both in code terms and indeed in civil law terms, and what may be a criminal wrong, a criminal offence, which prima facie does not have a public interest defence I'm not talking about the Data Protection Act but the Computer Misuse Act where you're then simply relying upon the possible exercise of a discretion that may protect you, but at the end of the day you've committed a crime.
A. I understand. LORD JUSTICE LEVESON So I'm just keen to distinguish between civil wrongs and the privacy is a very good example, and indeed the code clearly covers all that and what is or is likely to be potentially a criminal offence. MR BARR You talk also about "and in-house legal department". Can you help us with what is envisaged when a request is made to behave unlawfully? We'll take unlawfulness at this stage.
A. I mean
Q. Are you anticipating that the taking of legal advice is going to be mandatory or optional?
A. Oh, mandatory. It will be a requirement, not a choice. But as I tried to stress a bit earlier, it is highly unlikely, given the nature of our business, that we would be doing this sort of thing.
Q. Do you know yet whether the guidelines are going to say that something which is prima facie unlawful and here I'll ask the question first in relation to any form of unlawfulness can be done in the face of adverse legal advice or will it be that it can only be done with legal approval?
A. The latter. Only with legal approval. Not the former.
Q. What your statement doesn't tell us is whether or not any approach and request to do this sort of thing is going to be recorded in writing and whether the decision and reasons for it are going to be recorded.
A. I'm sorry it doesn't say that. They will be recorded. In writing.
Q. Can I now ask you to give, insofar as you're able to, Sky's position on where it thinks it might draw the line in the future?
A. On what?
Q. On prima facie unlawful conduct?
A. I think
Q. The circumstances in which it might countenance doing it. Shall we start, first of all, with a civil wrong?
A. I think it's highly unlikely in the future that Sky will consider breaking the law.
Q. And a criminal wrong?
A. I think highly unlikely again.
Q. But you're not ruling it out?
A. Okay, I am pretty much ruling it out, but I wouldn't want to journalism is, at times, a tough business and we need to time has shed light into wrongdoing, so there might be an occasion, but I think it would be very, very rare. LORD JUSTICE LEVESON I think there's a perfectly legitimate distinction between invading privacy, with all the civil responsibilities that that entails, and deceptively obtaining material, if it's in the public interest, where there is a strong public interest, and deciding: "Well, I'm prepared to break the criminal law to do this." Now, there is a distinction between the two. Whether you want to apply it is obviously a matter for you.
A. (Nods head) LORD JUSTICE LEVESON Journalists sometimes have done things which they're perfectly happy to go to prison for because that's what they think is their duty.
A. (Nods head) LORD JUSTICE LEVESON And that's a decision for everybody to make.
A. (Nods head) MR BARR Before we go LORD JUSTICE LEVESON I'm not encouraging them, but
A. I understand. MR BARR Before we go into the details of the two instances of unauthorised email access, can I pick up, first of all, at paragraph 16 of your statement, which tells us a little bit about investigation by BSkyB and Sky News. When did you know, first of all, about the second instance of hacking? That's to say, those regarding the Smith family?
A. In September of 2012.
Q. And in relation to the Darwins, is it right to say that you were made aware of some of what had gone on on 1 July 2008 and learned more later?
A. Correct.
Q. In terms of the management chain above you and I appreciate that you may or may not know the answer to this at the moment, and if you don't, please say so and it can be dealt with in writing but who above you in the management chain knew about these instances of email hacking in September 2011?
A. On the Smiths, I imagine the well, I know that the chief executive officer of BSkyB, Jamie Derek, was made aware by general counsel. On the issue of the Darwins, I would say that it was fairly you would infer from watching the TV coverage or going online when we broadcast the story that we had accessed the emails.
Q. And so far as the Smiths are concerned, do you know whether or not the notice went higher than CEO level?
A. I do not know.
Q. So when we read paragraph 16 of your witness statement, which refers to a review in July 2011 that review seems to have been of payment records are we to read that as a review which did not, because of its scope, detect the two instances of email hacking?
A. Yes, because the review set up and carried out in July 2011 by the head of audit at BSkyB was looking at particularly the payment to public officials and it found no evidence of it whatsoever.
Q. If we move to page 8 of your witness statement and just get clear the basis on which you are going to tell us about the two cases of email hacking. In relation to the first that's to do with the Darwins you have some direct knowledge but much of what you are going to be able to tell us is based on your conversations with the journalist concerned and his immediate line manager?
A. (Nods head)
Q. And in
A. Correct. Sorry, yes.
Q. In relation to the second case, the Smiths, it's all based on what you've been told and documents that you've seen; is that right?
A. Correct.
Q. If we deal, first of all then, with the case of the Darwins. It was a very well-publicised criminal case of the man who faked his own death on a canoeing trip and then went over to Panama and claimed life insurance monies. You tell us in paragraph 20 of your witness statement that after Mr Darwin pleaded guilty to offences of deception in March 2008, his wife, Anne Darwin, denied them. Your reporter believed that the email accounts under the name of "John Jones" and the fact of that email account had been made public may contain emails passing between the Darwins during Mr Darwin's disappearance, but it became apparent to him from sources close to the prosecution that this email account would not be examined by the prosecution. I don't want you to tell me who your source was, but I do want to examine the quality of the information that Sky News was receiving. How certain could you be that the police were not going to examine the email account when preparing for the trial of Mrs Darwin?
A. Because of conversations, both formal and informal, that would have taken place between the correspondent and close sources close to the prosecution.
Q. So are you saying that we're talking about sources very close to the prosecution?
A. I'm saying sources close to the prosecution.
Q. Can we get the chronology straight as well. There appears to be a discrepancy between your witness statement, which suggests that the reporter formed the view that the account would not be used by the prosecution and then sought permission to access the account, and the chronology exhibited to your witness statement, which is tab 2, page 4, which has the authorisation on 12 May and then says that it was not until afterwards, in early June, that the reporter's sources made clear to him that the prosecution will not be accessing the Darwins' email account. Do you see the discrepancy?
A. No, I don't see the discrepancy, because on 12 June, as you say, the last line says Cole authorised access. But the access didn't take place. So Tubb, the reporter, yeah, goes a second time to his sources close to the prosecution and only after he's gone a second time does he decide to actually go in and access the emails on 13 June. So I don't think there's a discrepancy between the chronology and my witness statement.
Q. I'm not criticising the chronology, but there might have been rather more detail in the interactions between your reporter and the source close to the police?
A. Well, bear in mind, please, that we asked Gerard Tubb, who is a highly experienced TV correspondent, to work on what we call a court backgrounder. This is a fantastic story. You have a man who disappeared in a canoeing accident in March 2002, arrives out of nowhere at a police station in December 2007. It's an excellent story. So we put Gerard on that story. He'd been working on it for the best part of five or six months, so inevitably, if a reporter is doing his job well and Gerard Tubb is a very good reporter there will be a series of discussions, informal and formal, between the protagonists and sources close to the protagonists on the story, and there will be a lot of give and take in terms of trade of communication.
Q. In the course of these communications, at the juncture where Mr Tubb is forming the view that the police are not going to investigate something which he thinks should be investigated, a decision surely fell on him, which was: "Do I go ahead with my own investigation, subject to my manager's authorities, or do I try and persuade the police or the Crown Prosecution Service that they're missing something and should be inquiring more rigorously?" Are you able to help us with whether or not Mr Tubb tried to persuade the police to investigate, first of all, John Jones' and then later other email accounts?
A. Well, I can't remember exactly what paragraph it is now, but is it 20?
Q. I'm starting at 20, yes.
A. Yes, where I say in my witness statement, the second line up: "But it became apparent to him from sources close to the prosecution that this email account would not be examined by the prosecution." So I would suggest that he would probably have been wasting his time.
Q. Well, you say "suggest". The reason I'm asking this question is paragraph 20 is worded in a way which doesn't tell us one way or the other whether, when faced with a choice of persuading the police to do more or going off to commit an illegal act on its own, he first of all tried to persuade the police to do the
A. I understand your point. The wording was not deliberately trying to mislead you.
Q. But you use the word "suggest" in your answer. Does that mean that you personally are not really in a position to help us with this level of detail?
A. That's correct.
Q. Asking you to put on the glasses of hindsight, do you think that it would be appropriate for a responsible broadcaster spotting a lacuna in a criminal investigation to try and draw that to the attention of the investigating force?
A. I think it's very difficult to make a firm decision on that hypothetical story that might arise in the future. LORD JUSTICE LEVESON Of course, if the police had wanted to do so, they had to get all sorts of warrants and all sorts of authority. Otherwise they would run into evidential problems as to admissibility.
A. (Nods head) LORD JUSTICE LEVESON So your journalist decided to do it himself.
A. He did. MR BARR Can you help us with whether or not the police knew in advance that Mr Tubb was going to access email accounts in connection with this case?
A. As I've tried to explain a little bit earlier, inevitably a good professional reporter will have a series of ongoing informal and formal discussions with sources and protagonists in the story, and I think it would be inappropriate for me to be able to say one way or the other whether that was the case. LORD JUSTICE LEVESON I think we have to be a bit careful about this. As you know, in relation to the interception of voicemails, I have not called any of the witnesses who have been arrested, and I am exercising a care about those who could be the subject of investigation, and I will do that in relation to to this witness who I'm not going to name, although there's been no secret about it as well. Of course you're entitled to exercise your own right against self-incrimination. I appreciate you come into this story much later, so that's unlikely to cause concern, but I obviously tell you about it. One of the reasons that I think it's right to look at all this is because there's been no secret about this. There have been stories in the public domain about it and it would be very odd, therefore, if I wasn't asking about it. MR BARR You tell us that the reporter formed the view that the account may contain information relevant to the trial. Now, we all know that in fact, as things turned out, it did. Can you help us with what it was that gave Sky News prima facie belief that the accounts would contain valuable information?
A. I guess it was the fact that John Darwin had been using emails a lot to go about his business in the past five years that he'd disappeared.
Q. So, really, speculation?
A. No, because sources close to the prosecution were clearly suggesting that there might be it might well be worth looking at the emails.
Q. We go on then. It's a matter of fact that in the middle of June LORD JUSTICE LEVESON Hang on, hang on, I'm sorry. Are you suggesting that your reporter was encouraged by the police to do this?
A. No, I'm suggesting that sources close to the prosecution were made clear that they weren't going to be following up the emails. MR BARR Are you able to help us one way or the other as to whether there was any encouragement from the police?
A. I don't think there was any encouragement, no.
Q. Moving on, it's a matter of fact that the account was then accessed by guessing the password, and once that had been done, more accounts were discovered and accessed. The level of permission given for this was by the journalist's immediate line manager, who was the managing editor, wasn't it?
A. That's correct.
Q. And permission was given orally, wasn't it?
A. It was.
Q. So it might be said that what was done here obviously falls procedurally far short of what you are now thinking of putting into place?
A. But it was the procedure, if that's the right word, at the time.
Q. That raises an interesting question. It wasn't a written procedure, was it?
A. No, it wasn't.
Q. And you tell us that this sort of thing is extremely rare, so I don't suppose you would like me to use the word "practice" either. What would you best describe at as?
A. The culture.
Q. Would "ad hoc approach" be more accurate?
A. No, I would say no, I wouldn't use the word "ad hoc".
Q. Now, at this stage your reporter is delving into various email accounts and coming across evidence which, in the fullness of time, becomes very important to a criminal prosecution. I'd like to know whether your view is that at this stage your reporter was, in effect, investigating the crime rather than reporting on it?
A. He was researching the story of the Darwins, I would say, and he'd been working on it five or six months and he was tasked with putting together what we call a court backgrounder, and that was his duty and that's what he was doing. He was putting together a court backgrounder that would run on the day that the Darwins were convicted. LORD JUSTICE LEVESON But he clearly was investigating it. I mean, that's what he was doing. It's different from the situation where the press find out about some potential criminality and then go about getting some evidence to create a story. Here the police were on the task, they were on the job, there was a prosecution going, there was a trial set up, and your reporter decided: well, he could help it along a bit by investigating it. Indeed, he almost says as much in one of his later emails, doesn't he?
A. He does. LORD JUSTICE LEVESON When he talks about the reward that he should receive from the state? It doesn't matter. But you know the email I'm talking about?
A. Mm-hm. MR BARR There's a reference to the Queen's Police Medal
A. I do, yes.
Q. There are other references. I'm looking at page 16 of your exhibit, where there's an email from the managing editor when he's not able to get into well, he gets into an account and all the emails have been wiped. The line manager's comment is: "Bad luck, inspector."
A. (Nods head)
Q. Do you see dangers in investigating a crime rather than reporting on it or do you record them as one and the same?
A. I don't regard them as one and the same, no, and the job of my journalist is to report the news.
Q. At paragraph 22 of your witness statement, you tell us that amongst the things that were discovered were
A. Sorry, paragraph
Q. 22 at page 9.
A. Sorry.
Q. You tell us that the journalist found, amongst other things, five voicemail messages from Mrs Darwin trying to contact Mr Darwin, and you were at pains to explain that these were voice messages that sat in an email account and not on any telephone, and so these were not phone hacking as such but rather the result of email hacking. In many ways, there's no difference, is there?
A. My understanding and I'm not a technophile is that these it was an early form of Skype and you couldn't you could go on, and if the other person on the other end was there, you could have a conversation, but if they weren't, you would just sort of leave a message, rather like you used to on an old-fashioned answering machine. LORD JUSTICE LEVESON I don't think Mr Barr is asking you a technical question at all. I think he's saying that in reality it is the same sort of thing. You're quite right, and I understand why you're keen to say that it is not interception of telephone communications. I understand that. But in reality, you've used some device to get into somebody's private systems
A. But an email system. LORD JUSTICE LEVESON Yes. I understand.
A. Yes. MR BARR So you're right to tell us about the distinction for the sake of factual clarity, but you are not, are you, trying to suggest that one is all right and the other is not?
A. No, I'm not, no.
Q. The matter comes to you on 1 July 2008, and you are briefed on the story and the information that's been obtained. By that stage, it's fair to say, isn't it, that the evidence which your journalist has obtained is dynamite from the point of view of the prosecution?
A. Sorry, is what?
Q. Dynamite.
A. Well, I don't know. They describe it as "pivotal". Whether it was dynamite, I don't know.
Q. Well, whatever description we LORD JUSTICE LEVESON Well, it was important, because she changed her defence. Her defence became marital duress.
A. I suppose I wouldn't I mean, the police said it helped, it was vital, it was pivotal. I'm not sure dynamite MR BARR I think you can take it from me that in some robing rooms that would be described as legal dynamite.
A. Okay.
Q. So you've got this very strong evidence. There are two decisions you have to make, aren't there? The first is whether you give the evidence to the police, and the answer to that is yes.
A. (Nods head)
Q. That was, presumably, a very easy decision to make, was it?
A. Very.
Q. Secondly, the question is whether you broadcast the story. Did you find that an equally easy decision or not?
A. No, I didn't, and I reflected on it during the course of the meeting, but by the close of the meeting, which started, I think, at about 5.30 on that July day, I decided that we would broadcast it.
Q. What was it that made you stop and think before coming to that decision?
A. I stopped and reflected on it because I thought we were giving it to the police, we were not going to use it on air or any platform before the trial started, and that it was reasonable for us to use, as a news organisation, after the trial had finished and they'd been convicted.
Q. But in journalistic terms, it was a very important scoop, wasn't it?
A. It was a good scoop.
Q. One which went on to win an award
A. It didn't win, just to be straight.
Q. I'm sorry.
A. It was nominated.
Q. I'm looking now at page 11 of your witness statement where you're describing this decision-making. On the third and fourth lines down, you say: "Since the whole purpose of the access had been to uncover evidence to assist the police to prosecute a crime, my view was that there was a clear public interest in the police being provided with the relevant material." Can I just examine your use of the word "whole" there. Surely it wasn't your reporter's whole purpose to assist the police? No doubt there was part of the reasoning. Surely another motivation was journalistic investigation for the purposes of a story?
A. Well, it would have been whole if I had decided at the meeting on 1 July that we weren't going to broadcast the material.
Q. But we know that you didn't come to that decision, and it's not fair, is it or it's perhaps being a little bit too altruistic to say that it was the whole purpose?
A. Fair enough.
Q. We know that the material was passed on to the police and the way it was described as pivotal, but can I ask you now: are you able to help us with the way in which this evidence was used by the police? You tell us that you provided them with log-in and password details of the various accounts which your journalist had accessed, and a summary of why you believed that Mrs Darwin's defence must consequently fail. As best as you understand it, what did the police do with that?
A. I don't know. I would imagine in the circumstances they would have handed it to the CPS, the Crown Prosecution Service, and then it would be up to the CPS to decide what they did with it.
Q. Are you able to help us with whether or not the trial judge was informed that the emails had initially been uncovered as a result of them being accessed by a Sky News reporter as opposed to simply provided by Sky News?
A. I'm not able to help you because I don't know. LORD JUSTICE LEVESON But if the prosecution had wanted to use the emails, they were going to have to find a way of obtaining that information lawfully. Do you know whether they did that?
A. Yes, I do. I understand that the police then used the passwords that our reporter had obtained and given to them and then went on themselves onto LORD JUSTICE LEVESON Oh yes, but do you know whether they obtained some legal authority to do that?
A. I don't know. LORD JUSTICE LEVESON No, because otherwise there would be all sorts of issues of admissibility.
A. (Nods head) LORD JUSTICE LEVESON And it may be an example of knowing what you want to prove again.
A. (Nods head) LORD JUSTICE LEVESON Yes. MR BARR You then, after the criminal proceedings, broadcast the story. The story makes very clear that Sky News had obtained material from email accounts. That wasn't hidden at all. But Sky News did not go so far as to say in terms that its reporter had accessed email accounts.
A. That's correct.
Q. Can you help us with why that was?
A. With hindsight, perhaps we should have used the phrase "accessed", but if you watch the tape, you have to you would clearly infer from watching it, given the format that the emails appear and I understand you have watched the DVD that we had accessed the emails, I would argue.
Q. I'm not going to suggest that it wasn't clear from the report that you obviously had seen a lot of electronic material and had it in your possession. Can we move now to what happened afterwards? There was a second round of email interception after the prosecution of the Darwins, wasn't there?
A. (Nods head)
Q. And here you say I'm looking at paragraph 27 that: "Following the conviction of Anne and John Darwin, Gerard Tubb has informed me that he was faced with a number of questions from a variety of sources, including the public, the investigating authorities and other members of the press as to whether money obtained by the Darwins might remain unaccounted for." Then you go on to explain that further authorisation was obtained and he went on to try and look into where the money had gone. Exploring, though, why he did that, are we really to understand that it was simply because others were pressing him to do that, or was it because a further story was scented?
A. It was because there was a possible story scented.
Q. So when you say that there were a number of questions from, amongst others, the investigating authorities, what are we to understand about the knowledge of the investigating authorities about what your reporter was going to do?
A. Sorry, could you repeat that?
Q. I'll put it very simply: did the investigating authorities know that your reporter was going to hack further into email accounts?
A. I don't know.
Q. He did so hack, and the result was that he didn't really get anywhere, did he?
A. No, he did not.
Q. Again, the authorisation was simply by the line manager, wasn't it? And just to be clear, were you personally aware of this when it happened?
A. Yes, I was, yeah.
Q. And what view did you take about it at the time?
A. I thought that it was agreeable that he did that.
Q. Can we explore a little bit why you thought that?
A. Because I thought that if it helped track down the money, that that would be a useful thing to do as well.
Q. I won't explore in any more detail your thinking at the time, but does it suffice to say that where we are now, you would have gone about the thought process and how you thought about it rather differently?
A. I think that's accurate.
Q. I think it's probably best I don't ask you about whether your decision would have been different. LORD JUSTICE LEVESON No, I don't want to investigate that, but I do want to know this, if you don't mind answering the question: were you aware of the Computer Misuse Act?
A. I probably wasn't aware of it as I should have been, to give you an honest answer. MR BARR Does the same apply to the Regulation of the Investigatory Powers Act of 2000?
A. Yes.
Q. The accessing of the emails to try and follow the money was supplemented, wasn't it, by the use of a Panamanian freelance journalist to try and investigate immigration papers?
A. (Nods head)
Q. The way it's put in a document in the exhibits I'm looking at page 17 of the exhibit I don't think this should go on the screen but I'll read the relevant section: "As discussed, I am planning to get a private eye in Panama to surreptitiously check immigration records for [and then I needn't read out the name] after discovering that John Darwin's son has used that name. We used him to check immigration records last year for $500." So he's referred to there as a "private eye". You're careful to tell us in your witness statement that in fact he was a Panamanian freelance journalist. Is that, given what he was doing, a distinction without a difference? Whatever label you attached to him, what he was doing was the work of a private investigator?
A. I don't know, but, I mean, as I understand it, he was a freelance journalist and we wouldn't normally use private well, we don't use private eyes.
Q. The email from the journalist to a senior manager talks in terms of "surreptitiously checking immigration records". On the face of it, you're paying an investigator, however labelled, to look into public records surreptitiously in Panama, as I understand it, and not the United Kingdom. Is that the sort of thing that you've ever done in the United Kingdom?
A. It is not the sort of thing we've ever done in the United Kingdom, no.
Q. Did you know about this at the time?
A. No, I did not.
Q. Do you think that it was ethical journalism to pay somebody surreptitiously to access the records of a foreign state in these circumstances?
A. No, I think it's unethical.
Q. I think he, the investigator, drew a blank and at that stage it was decided that Mr Tubb should not be authorised to access any further email accounts; is that right?
A. That's correct.
Q. So a line was drawn at one point in time. Can you help us with why the line was drawn? Was it simply that the story was not going anywhere?
A. Well, as I've tried to explain earlier, Sky News is an instant news broadcaster, and Mr Tubb's job is to report the news as it happens, day in and day out, from the north of England. So that's what his job is and that's what he got back to doing.
Q. You tell us at paragraph 31 that, amongst other things, your journalist used details on the email accounts to view items that John Darwin had purchased from Amazon and eBay. Are you able to help us one way or the other as to why he did that?
A. No, I'm not.
Q. We can move now to the second story, which is that of Martin and Lianne Smith. They are a couple who, with a child, fled to Spain when the police took an interest in Mr Smith, aren't they?
A. That's correct.
Q. They lived in Spain until the authorities caught up with Mr Smith, and he was extradited back to the United Kingdom, and the story was an exceptionally poignant one because what happened shortly afterwards was that Mrs Smith killed her daughter and her baby son who had been born in Spain; is that right?
A. Correct.
Q. The same reporter as we've been talking about in the Darwin case was assigned to cover the story, wasn't he?
A. He was on the case. In fact, I think the case was in Carlisle, and he was based in the north-east of England, but for whatever rota reason, he went across to the west.
Q. And one of the things he discovered when investigating the case was that Mrs Smith I use the term loosely, because they lived together but I don't think they were ever actually legally married had previously been a childcare worker with a local authority?
A. That's correct.
Q. And that there were childcare proceedings in force in relation to the daughter who was taken to Spain?
A. Correct.
Q. Now, you tell us that he believed, from his investigations, that there had been failings by the authorities to follow up on a child who they must have realised was at very severe risk, and had such follow-up been done, that child's life may have been saved. It was investigating that theory, wasn't it, that was the basis of the authority that was given to access Mrs Smith's emails?
A. That's correct.
Q. Can we explore that justification then for a moment, please? In what ways was it said or suspected that the authorities had failed?
A. Because you had Martin Smith, a suspected paedophile, on the run; their daughter, Rebecca, was already under child protection procedures, and it was clear that his wife was running a nursery in Barcelona. And Sky News believed and had reasonable grounds for suspecting that if the authority had done more here, the local authority had done more, it might have been able to track down the whereabouts of the family.
Q. But we do know that the family was tracked down because Mr Smith was found and extradited, wasn't he?
A. But only after two years or thereabouts.
Q. It's not suggested, is it, that there was any offence against the young Rebecca, I think her name is the daughter, the young daughter and the son born in Spain, is there? It's not as if anybody's suggesting that offences were being committed in Spain?
A. We don't know that, but no.
Q. Because the charge that Mr Smith was wanted for related to somebody else?
A. Correct.
Q. We also know that it was in fact when the authorities finally caught up with Mr Smith it was only at that point that the complete tragedy of the death of the children ensued. So can you help me, please, with how Sky News thought that there was any failing by an authority that would have prevented Mrs Smith from killing her children?
A. Because the local authority, we believed, could have done more to find out the whereabouts of where the Smiths had run off to, given that it took two years for them to track them down.
Q. I understand that, but what I don't understand is how that would have saved the lives of the children.
A. Well, it might or might not.
Q. Isn't the position that this was simply an extremely poignant story, which Sky was very interested in investigating?
A. It was a poignant story that we were interested in investigating and if we'd been able to demonstrate that the local authority had in some way failed, then that might have led to a change in systems and procedures that would save the lives of other children of ensure there was less harm in the future.
Q. But it was essentially a speculative exercise, wasn't it, trying to see what was in Mrs Smith's email account?
A. I don't think it was speculative, because by accessing the email account of Mrs Smith, we would be able to determine whether or not she was in contact with people back in Britain, possibly in the area where the local authority was set up, and also the extent to which Mrs Smith was living openly in Spain.
Q. Doesn't that break down into two? First of all, in relation to the emails, what you were looking for, wasn't it I use "you" not in the personal sense, of course you were looking to see whether there were emails from Mrs Smith back to people who she had worked with who were local authority care workers?
A. Correct.
Q. It was to see whether that had happened
A. There might be some links.
Q. The question would then have arisen: if a care worker had known anything about the Smiths, whether the emails gave away their location, their life, and whether the person had reported that to their employer?
A. Correct.
Q. And that is all rather a long chain, isn't it, to be investigating?
A. Sometimes stories are like that. They can be long chains.
Q. To what extent
A. If you knew the answer at the beginning, you wouldn't set out on the start of the chain.
Q. To what extent had that theory been explored with the local authority? Can you help us?
A. My understanding from Mr Tubb is that the local authority had stonewalled a number of enquiries from more than one Sky News journalist. LORD JUSTICE LEVESON Yes, well, they might not want to talk about it to the press. How do you think Sky News would have reported the use by the local authority of techniques that included or involved illegally hacking into somebody's emails?
A. I guess it would depend on the outcome. LORD JUSTICE LEVESON Do you think?
A. Yeah, I do. MR BARR Can we go to the way in which the accessing of the email was in fact authorised? I'm looking at page 20 of the exhibit. This can be put on the screen, please. There's an email of 22 May 2010
A. Sorry, which paragraph are we on?
Q. It's referred to in your statement at page 15 but I'm taking you to your exhibit at page 20, please.
A. Sorry. Sorry.
Q. So here we have the email. It's 22 May 2010, from the reporter. It says: "I've found the email address Lianne Smith has been using in Barcelona since 2008 [he gives that]. The nursery she set up in October 08 was called Early Performers. It would be very interesting to know if she has emailed people in the UK over the past few years. If she's been turned her in, the kids would have been taken into care and would be alive now. The security question she protected her account with is her favourite film. Should I try to guess it?" The response from the managing editor is a one-line response sent from his iPhone: "Yes please Gerard. Legitimate public interest enquiry. Good hunting." Although you and I have explored the background to this story, the way, in fact, it was put to the manager who had to authorise it was I'm afraid I have to put it cursory, wasn't it, and informal?
A. But I would argue that there had been discussions in the four days or so before that email was sent, because if you look at the top line of that email, it clearly suggests that there had been discussions beforehand.
Q. In terms of the authorisation, so far as one can divine it from that single line, it seems that the manager's thought process was simply that it was a legitimate public interest enquiry and therefore it was okay?
A. Correct. LORD JUSTICE LEVESON So do you think he probably hadn't paid as much attention as he should have done to the criminal law?
A. I don't know. LORD JUSTICE LEVESON That's fair enough. MR BARR Again, contrasting what you're planning to put into place with what happened two years ago, it's a far cry from what you're envisaging going forwards, isn't it?
A. It is a far cry indeed.
Q. Turning to what was in fact discovered, although I don't want to go into the details, it was essentially emails which were sent to media organisations after Mr Smith's arrest. I'm looking now at paragraph 35 of your witness statement. Your witness statement suggests that the content of those emails to the media indicated that she had been struggling to cope after Mr Smith's arrest in the period of time before she killed her children and was seeking help.
A. Correct.
Q. So it didn't uncover what had been suspected, and so far as anything was uncovered, it was simply that she'd been in touch with parts of the media after Mr Smith's arrest?
A. (Nods head)
Q. The story was never broadcast, was it?
A. No, it wasn't.
Q. And that was effectively because you didn't really find a story, did you?
A. We didn't find sufficient information that the local authority had been failing in its business.
Q. There doesn't seem to be, on the face of paragraph 35 of your witness statement, any evidence at all there about the local authority?
A. That's true.
Q. I'm asking this because at paragraph 38 you explain why the story was not broadcast. You tell us that the reporter was agitating for it to be broadcast after Mr Smith was convicted but before he had been sentenced, and you explain that at that time several major international news stories were breaking, so a decision was taken that despite the public interest justification for the email access, the Smith story was no longer an editorial priority and should not be pursued. In other words, you're saying that it wasn't an editorial priority in the period between January and March 2011; is that right?
A. We had not found the information that we'd set out to find
Q. Well, that's the point, isn't it? This explanation in your witness statement dresses it up rather, if I may say so. The true position was you just didn't get anywhere, did you?
A. I think that's fair.
Q. Can I ask you now a little bit about the future? You've explained the sort of procedures that should be put in place at Sky News. How is the question of proportionality going to be factored in? Are you able to help us with that?
A. Yes. I think we will need to look very hard at the issue of proportionality and the you know, there will need to be a very clear guideline written into our procedures that spells out the balance, the fulcrum, if you like.
Q. Finally, can I ask you about the way in which this information became known to the Inquiry. The Inquiry sent Sky News a notice under section 21 of the Inquiries Act on 11 August 2011. It was answered on 16 September 2011 via a letter from one of your legal advisers, wasn't it?
A. Correct.
Q. I don't want to go into all the details, but could I just take you to page 5 of that response, which is at tab 9, and the answer which is given under subparagraph F at the bottom of that page. That's answering a question about the Regulation of Investigatory Powers Act 2000. The question was: "The documents you should provide to the Inquiry panel should relate to the following matters or issues in respect of BSkyB And then, at (f), it was: "Regulation of Investigatory Powers Act 2000." The answer, which goes a little bit beyond the question, says: "There is no written guidance on the provisions of RIPA. The Sky News editorial and reporting staff to whom we have spoken have never intercepted communications and any proposal to do so would not be countenanced." Now, that statement, as we now know, was not correct, was it?
A. It wasn't correct at the time, no.
Q. And at the time, because of what we've heard before, Sky News did know about the episodes of hacking at a senior managerial level. The people who were drafting and authorising this response knew about the hacking when this letter was drafted, didn't they?
A. The letter that you would have received on 16 September?
Q. Yes.
A. Yes; correct.
Q. The explanation for why this inaccurate assertion was made has been dealt with in a covering letter from your legal advisers, hasn't it?
A. It has.
Q. I hope I do justice to the explanation when I say that the nub of it comes down to that the person who drafted this was thinking about RIPA and did not consider that the email hacking that he knew about was a breach of that Act?
A. As I understand it, the letter that you sent, your notice on 11 August, concerned and its thrust was about telephone hacking and payments to public officials, and our response to you on 16 September, having taken external legal advice as well, was that we would focus on that particular issue those two issues.
Q. Nevertheless, what in fact has happened is that an inaccurate assertion has been made?
A. It was inaccurate.
Q. That, presumably you would agree, is highly regrettable?
A. It is very regrettable indeed and I apologise. MR BARR Thank you very much. Those are all my questions. LORD JUSTICE LEVESON I think you ought to be given the opportunity to say one other thing as well, Mr Ryley, which I'm sure you would want to say. It may be suggested that it is not a coincidence that the issues we've just discussed arise at BSkyB while, at the same time, other issues have arisen in other parts of the News Corporation empire. But let me understand it, if I can. The episodes you described today originated from the bottom, from the journalist up, as indeed was the example of email hacking that evidence has been given about in relation to the Times, and therefore, would I be right to assume that you would make it absolutely clear that no inference at all should be drawn or would be right to draw from the fact that actually these two instances, and indeed interception of telephone messages, all emanate from different parts of the same group?
A. Sky News is part of BSkyB. We're a separate department. BSkyB is part of News International, but our journalistic endeavours, our journalistic activities, our management structures are very separate. LORD JUSTICE LEVESON So I'm allowing you the opportunity to say, as I think you would want to say, that these are quite specific, separate incidents and do not reveal something that I should deduce about what's going on in the whole operation.
A. Absolutely correct. LORD JUSTICE LEVESON I thought you would want the opportunity to say it. That's all.
A. Thank you. LORD JUSTICE LEVESON Thank you very much. Well, that's it until 2 o'clock, is it, Mr Barr? MR BARR That's right, sir. LORD JUSTICE LEVESON Thank you very much indeed. 2 o'clock. (12.50 pm)


Gave a statement at the hearing on 23 April 2012 (AM) ; and submitted 2 pieces of evidence


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