The publisher of two of the UK’s most popular newspapers today asked senior judges to consider whether an inquiry into press standards should hear evidence anonymously.
- November 29, 2018
- November 2, 2018
- May 22, 2018
Lawyers representing Associated Newspapers challenged a ruling on the admissibility of anonymous evidence by inquiry chairman Lord Justice Leveson, at a High Court hearing in London before Lord Justice Toulson, Mr Justice Sweeney and Mrs Justice Sharp.
In a ruling on November 9, Lord Justice Leveson said he would be “prepared to receive anonymous evidence”.
He said the inquiry had been approached by a number of individuals, “all of whom describe themselves as journalists working for a newspaper or newspapers”, who had asked to provide evidence anonymously and not to be identified to the newspaper or newspapers for which they work or had worked.
Lord Justice Leveson said the journalists “fear for their employment” if what they said could be attributed to them.
“The inquiry has been approached by a number of individuals, all of whom describe themselves as journalists working for a newspaper or newspapers either on a casual or full-time basis and who wish to provide evidence to the inquiry on the subject of the culture, practices and ethics of the Press,” he said.
“Each has asked to provide this evidence anonymously and with such other protection that the newspaper or newspapers for which they work or have worked cannot identify them.
“It is clear that the picture which they wish to paint is not entirely consistent with the picture that editors and proprietors have painted of their papers and they fear for their employment if what they say can be attributed to them.”
He added: “Although I would encourage all those who can contribute to this inquiry to do so on an open basis, I understand the concerns expressed by journalists who fear for their continued employment if they do not follow the line being taken by their employers.
“In the circumstances, given the broad remit of this part of the inquiry into culture, practices and ethics at a general, rather than a specific, level, I will be prepared to receive anonymous evidence.”
Press ‘on trial’
Mark Warby QC, for Associated Newspapers, argued at the High Court that the inquiry had to be fair, both procedurally and “in respect of the reputation” of Associated Newspapers.
Warby said the press was “on trial” and he questioned whether it would be fair to allow anonymous evidence which could not be fully tested or challenged.
He told the three judges: “The concern is about untested evidence that will tend to tar Associated Newspapers with a broad brush.”
In written arguments given to judges, Warby said Associated Newspapers was not suggesting that the inquiry could never grant anonymity to any witness.
He said one witness had already given evidence under the reference “HJK”.
“The claimant has not objected, for example, to the anonymity order made to protect the witness HJK, whose privacy would be at risk if he were to be named,” said Mr Warby.
“Indeed, for him to give evidence publicly and by name would be self-defeating. It would lead to the very intrusion that HJK wished to avoid. The risk of intrusion to privacy outweighs the countervailing interest in open evidence.
“The fact that the balancing exercise comes down on the side of anonymity in that particular case does not mean that it must in the very different class of case with which this challenge is concerned.
“The claimant objects to the decision in principle that certain witnesses should be anonymous, because they fear damage to their careers if they are named.
“The essence of the challenge is that this is not a sufficiently weighty reason to outweigh the general principles of fairness and open justice, and (human) rights.”
Warby said evidence alleging wrongdoing by press organisations was “central” to the inquiry.
“The centrality of the evidence reinforces the need for the evidence to be properly tested, and rebutted where appropriate,” he said.
“Testing and rebuttal cannot take place when the evidence is given anonymously.
“Witness anonymity prevents those who may be the subject of anonymous evidence from rebutting it with detailed counter-evidence, or by impugning the impartiality or motivation of the source.
“The chairman’s ability to weigh the evidence by reference to all relevant facts will therefore be impeded.”
He added: “Whilst it is true that the first part of the inquiry is concerned with general issues of press culture and practice, the very generality of the subject matter heightens the risk of general findings applicable to the Press as a whole, based at least to some extent upon anonymous evidence, that may tarnish the reputations of many organisations and the individuals associated with them.”
Review is ‘premature’
Robert Jay QC, for Lord Justice Leveson, said Associated Newspapers’ application for judicial review was premature.
“On analysis, the chairman has determined in principle that his inquiry is prepared to receive anonymous evidence (as opposed to making a determination in principle that it would not),” said Jay, in written arguments.
“The chairman has not determined whether such evidence should be received in any individual case: indeed, he has made it plain that before making such a determination the application would need to be accorded anxious scrutiny.”
Jay added: “Accordingly, it is incorrect to characterise the chairman’s ruling as other than the making of a gateway determination.
“Thus, in one obvious sense the present application for judicial review is premature.”
He said Lord Justice Leveson had to decide whether to hear evidence from a named witness or not hear the evidence at all.
“It is common ground that it is hugely preferable for the inquiry to take evidence from named witnesses than from anonymous ones,” he added.
“However, the chairman is not making a choice between these two options; he has to choose between hearing this evidence from anonymous witnesses and not hearing it at all.”
The hearing ended and judges said they would announce their decision at a later date to be fixed.