Why did News International retreat on phone hacking?
Brian Cathcart: Why did News International retreat on phone hacking?
10 Apr 11

James Murdoch was quoted this weekend as saying in New York that his father’s company has now put the phone hacking problem “in a box” so that everybody would not be “sucked into it”, causing the whole business to “sputter”.

Well maybe. News International has always had a cultish, us-against-the-rest character, so its mind is hard to read, but the truth surely is that the company’s lawyers have known for weeks if not months that they could not win most or perhaps any of the private cases brought by people who believe they were victims of News of the World hacking.

It may be that the decisive moment came a month or so ago, when the judicial authorities made a simple and for them almost routine decision. About 25 separate legal actions were in the works and it was no secret that papers were being prepared for more, so it was thought sensible and efficient to direct all of them towards one judge, who would then be versed in all the common factors and issues. The chosen judge was Mr Justice Vos, who had until then been hearing the preliminaries in the combined cases of Andy Gray and Steve Coogan. For News International this was surely a disaster, because in those preliminary hearings they had road tested some of their most important defences and found Vos unsympathetic to the point of dismissiveness.

Perhaps the most significant moment came during a court hearing in January, when Vos was briskly reviewing matters before ruling on a particular point of procedure. He said this:

The main point argued in Mr Gray’s case was that none of the 12 calls known to have actually been made from Mr Mulcaire’s landlines to Mr Gray’s voicemail box number was long enough to allow interception of Mr Gray’s voicemail messages. The Defendants relied in this regard on the evidence that . . . it normally takes nine seconds to access any real messages when a call is made to a voicemail direct dial number.

Here, in other words was one of the central pillars of the News International case. Glenn Mulcaire had, by whatever nefarious means, acquired all the numbers and codes required to access Andy Gray’s voicemails, but did he actually listen to them? Yes, he had called the relevant number, but the company argued that no proof had been provided of him actually hearing a message; on the contrary, what evidence there was suggested he had failed to do so. By implication, it could not be shown that Mulcaire had breached Gray’s privacy. Here is what Mr Justice Vos had to say about that:

. . .it seems to me that, in Mr Gray’s case, there is abundant evidence that Mr Gray’s voicemails were intercepted, and a strong inference that some misuse will have been made of the confidential information thereby obtained. The 12 calls that have already been proved may well not be the whole story. And at least three of them were long enough for some information to have been obtained …

He added that there was every reason to expect much more data on the telephone traffic to emerge, both from the police and the company, and that in any case he saw no reason to rely on telephone traffic data alone.

. . . the documents from Mr Mulcaire’s own handwritten notes are more than enough to satisfy me that interception of Mr Gray’s voicemails was something that Mr Mulcaire was undertaking regularly.

Vos was equally sceptical about the company’s argument that it could not be proved that Mulcaire, if he really did hack Gray’s messages, was doing it for the News of the World.

. . . since Mr Mulcaire was contracted to NGN, I disagree. Moreover, Mr Mulcaire’s own notes and the reference to “Greg” therein supports that case, even though it remains to be proved that “Greg” was Greg Miskiw, a NotW journalist.

(NGN, by the way, is News Group Newspapers, the arm of News International which operates the News of the World and the Sun.)

If, at the turn of the year, Murdoch’s people thought they could fight their cases against people in Andy Gray’s position with a reasonably chance of success, this sort of rubbishing from a leading judge must have brought them up short. Then, when they learned that all the cases would be heard by the same judge, the outlook must have been transformed. A chance of success became a serious risk of expensive and serial humiliation.

And worse still was the prospect that Glenn Mulcaire would lose the case he is due to bring to court, perhaps as early as next month (and not before Vos), in which he was set to argue that he should not be obliged to reveal whom he dealt with on these matters at the News of the World on the ground that he risked incriminating himself. With Vos already kicking them around, they apparently decided not to wait.

That said, it should be noted that the company’s statement contains some vaguely defiant language suggesting they are not giving up entirely. On the one hand, this is natural: they want to drive hard bargains on compensation and send a signal that they won’t pay out in frivolous, unfounded claims. On the other hand, they may yet take some cases to court to try and define the limits of their liability, because there are a lot of loose ends here. A final note: while Andy Gray is said to be on the list for a compensation offer, Steve Coogan is not. What does this mean? Only that Coogan’s case is less well advanced than Gray’s. His lawyers are gathering information, and Vos appears to believe that they will make it stack up.

Brian Cathcart teaches journalism at Kingston University London. He tweets at @BrianCathcart ENDS