Interview: Dominic Crossley

Over the past week, I’ve been writing a report on Leveson’s recommendations for my course. In the process, a few concerns struck me about certain aspects, and I found a few questions brewing. By chance, I came into contact with Dominic Crossley, a lawyer who has represented many of the hacking victims, and also represented Max Mosley in his bid a few years ago to make newspapers notify the subject of a story prior to publication. He was kind enough to agree to answer a few questions I had, and since the essay I’m writing doesn’t have enough space for the complete responses, I thought I’d publish them here.

He’s keen to praise Leveson’s findings, and calls for them to be implemented in full. My own opinion is that I’m a little more cautious about this – Britain’s record on free speech has been extraordinarily poor, with the possibility that wearing a certain t-shirt or burning a poppy could make you a criminal. As such, I’m receptive to warnings that free speech would be further threatened by these reforms. That said, Leveson does propose enshrining press freedom for the first time in law – though with caveats that seem too broad for my liking. Mr Crossley draws a comparison with the caveats in the European Convention on Human Rights – though these are far more specific. Anyway, all this and more is discussed below…

1.)    Do you feel the Leveson report addressed all your clients’ concerns adequately?

Given that I acted for over 50 individuals it is impossible for me to generalise.  Certainly some clients have expressed the view that Leveson’s recommendations are the least of what could be expected under the circumstances.  My personal feeling is that the Leveson Report is an extremely well constructed document that recognises the impact that unlawful and unethical conduct has on the individuals concerned.  I think that the report demonstrates the overwhelming need for an effective independent regulator and his recommendations put forward a proposal intended to meet that need without inhibiting good investigative journalism or risking unwarranted state interference.

2.)    What would be the ideal outcome of the ongoing negotiations over press regulation?

The Leveson recommendations should be implemented in full. Any different outcome or compromise that derives from private negotiations or compromise will be met with scepticism.  The public are able to trust the Leveson report because it is the product of a public and transparent inquiry undertaken by an independent judge who is not subject to the same pressures and temptations as politicians or newspaper executives.

3.) The draft bill, published by Hacked Off, claims to protect and enshrine freedom of the press, yet in section 1(3), caveats to this freedom are included:

‘Interference with the activities of the media by Ministers of the Crown and public officials shall be unlawful unless it is for a legitimate purpose and is necessary in a democratic society‘.

These caveats seem extremely broad, and open to considerable exploitation by politicians (especially given the willingness Maria Miller’s office showed in attempting to suppress the Telegraph’s report on her expenses in December – a charge she denies). Will this loophole be closed, and if not, how would you justify language that is so open to interpretation?

I do not represent Hacked Off and should not speak on its behalf.  I do however think that they are doing a good job in trying to maintain the voice of the victims in the debate and despite the enormously powerful voice and influence of the press lobby. Their draft bill is the first genuine attempt to be true to Leveson’s recommendations. The clause you identify is taken directly from the report (vol 4 p 1780). In suggesting that clause Leveson is relying heavily on the s3 of the Constitutional Reform Act.  It should not be considered a loophole: Leveson recommended a clause placing a duty on the Government to uphold the freedom of the press because there is no current legislation to that effect.  Of course, particularly given what he heard during the inquiry, the obligation he proposes to prevent interference with the press cannot be absolute.  Judges, for example, are public officials and they are called upon, as is necessary,  to place restrictions on the press and/or censure them in libel and privacy cases. If there was no such caveat, the press would be entirely immune from prosecution or regulation.   Similar caveats appear elsewhere in legislation – see by way of example Article 10  of the European Convention on Human Rights – which protects freedom of expression and is subject to Article 10 (2):

“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

In response to your example of Maria Miller allegedly attempting to suppress an article concerning her expenses, I do not know the truth of that allegation.  Should it have been true and Hacked Off’s bill have been in force the Telegraph could have relied upon it, as such conduct is unlikely to be considered interference for a “legitimate purpose”.

3.)    In an ideal world, would your clients wish to see all news-related internet content in England and Wales accountable to the regulatory body?

Again, I cannot answer for my clients and the following is my own view.  I think there are enormous challenges relating to the internet which must be overcome.  The first challenge is requiring internet based companies who trade in the UK to abide by the rule of law in this jurisdiction.  As to regulation, it would appear to me to be of great benefit for legitimate news providers on the internet to have the benefits of regulation including access to the arbitration system for complaints.  At the moment there is no significant alternative to dealing with disputes other than by way of enormously expensive court proceedings, which is inhibiting for both the complainant and the publisher.  A cheap and specialist arbitration system has to be better.

4.)    Many editors and commentators have argued that since the inquiry began, it has had a huge impact, making newspapers extremely cautious about publishing certain stories. They have claimed that many stories haven’t been published that are perfectly newsworthy – will implementing Leveson’s proposals entrench (or even exacerbate) this suppression?

I don’t see why they would have supressed such stories nor why they should do so in the future.  Newspapers have a tendency to report such fears because it suits them to do so.  Leveson repeatedly stated how he did not want to inhibit legitimate journalism and heard and lauded examples of great investigations.  I would have thought that it remains in the newspapers’ interests to publish good stories now, as it ever has been and will be should Leveson’s recommendations be implemented.  If unlawful stories of no genuine public interest concerning the private lives of sportsmen or celebrities have been supressed, good.

5.)    Related to the above question, Chris Blackhurst has argued on The Media Show in November, ‘There’s one story in particular that if Leveson was followed through to the letter would not have appeared, which is the hacking of Millie Dowler’s phone’. Do you accept that Leveson’s reforms could silence good stories that are irrefutably in the public interest?

I have not seen the full quote of what Chris Blackhurst said, but as I understand it he objected to the whole inquiry.  Like many newspaper executives, he may prefer that the press had less constraints than they currently have notwithstanding the way journalists have been shown to behave. He is entitled to his view, but I cannot see how his analysis that Leveson’s recommendations would have prevented the Millie Dowler story can possibly be correct.  I would like to hear his explanation and then hear whether Nick Davies of the Guardian (who was responsible for the story) agrees with him.

6.)    Ian Hislop has complained that though his magazine was not found to have done anything wrong, Private Eye would be unduly affected by the proposals – the incentives for joining the proposed regulator are so strong that the magazine must either sign up, or be accountable to Ofcom. With Leveson’s proposed ‘exemplary damages’ in particular, some have argued there’s a serious possibility that such small publications could cease to exist in their current form. Given this, could implementing Leveson’s recommendations ironically end up bolstering larger conglomerates such as News Corp?

It is easy to sympathise with Private Eye and enjoy its anti-establishment approach.  What Ian Hislop is ignoring is the benefits of what Leveson proposed.  Private Eye did not participate in the PCC partly because it was run by the very newspaper figures who he was writing about so irreverently.  Under Leveson’s recommendations that would not apply.

Additionally Hislop has criticised the wealthy using the libel courts to bully publishers by virtue of the threat of enormous costs associated with Court proceedings. Under Leveson’s recommendations publishers would be protected from such tactics.

I don’t expect Hislop to welcome the recommendations but it may be that he ignores the benefits and over-emphasises the concerns.  On the latter point, you identify his concern regarding exemplary damages. Exemplary damages will only apply in the most serious cases and it already applies to libel and harassment cases. It is a moot point whether it applies to privacy/breach of confidence (it was argued in the phone hacking litigation that it should apply, but dropped.  In Mosley’s case it was also argued and found that it should not apply but the judge recognised that it is a point that may need to be considered by a higher court).

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