On 7 November 2011 Lord Justice Leveson gave a wide ranging ruling on the Inquiry’s approach to evidence. He substantially rejected the points made by the Metropolitan Police and the CPS in their joint submissions on the conduct of the Inquiry. The ruling shows the careful and nuancing balancing exercise required in an Inquiry of this kind which ranges over material which is also likely to be the subject of criminal prosecutions.
Lord Justice Leveson begins by pointing out that, because of the on-going criminal investigations the Inquiry could not proceed by a detailed analysis and determination of all the facts. This conventional approach would require the Inquiry to be postponed for up to two years. Nevertheless, he went on to point out that the Inquiry could not be
“conducted in a factual vacuum without reference to the background which caused it to be set up or without consideration of the extent to which it is correct to be critical of the culture, ethics and practice of the press” .
After considering the joint submissions of the Met police and CPS on the conduct of the Inquiry, Lord Justice Leveson returned to his Terms of Reference, accepting the analysis of Counsel to the Inquiry Mr Robert Jay QC that
“the focus of the inquiry required by Part 1 in this area is the adequacy of the regulatory regime against the background of any systemic behaviour flowing from the ethos or policies of particular media organisations which are either encouraged or tolerated by senior management or, at least, are the consequence of failure of oversight or supervision at that level“.
He then considered three possible types of prejudice which might be caused to criminal proceedings by the Inquiry. First, he rejected the notion that the Inquiry might impact on the credibility of witnesses or potential witnesses. Secondly, he was unimpressed by the argument that those accused of crime might take advantage of early disclosure of evidence and use the knowledge to interfere with evidence or tailor his or her account thereby interfering with the ongoing investigation. Third, he considered and dismissed the risk of abuse of process arguments in criminal trials – in particular, the prospect that it will be suggested that jurors will be affected by pre-trial publicity such that a fair trial is not possible, relying inter alia, on R v. Abu Hamza  1 Cr App R 27 at 345.
After considering contempt of court – holding the the Inquiry was “legal proceedings” for the purposes of the Contempt of Court Act 1981 – self incrimination and publication in Parliament. Lord Justice Leveson ruled that the Inquiry would proceed as follows:
i) He would receive evidence that is presently in the public domain on any aspect of the Inquiry as well as evidence from whatever source which may involve allegations either of criminal behaviour that is not presently the subject of police investigation
ii) In relation to allegations of phone hacking and the present police investigation, he said that
“I shall ask the police for a summary of the progress of the investigation and a detailed explanation of the extent of unlawful behaviour (if any) for which there is at least prima facie evidence along with the identity of those suspected and the nature of the evidence (in general terms). For the public aspects of the Inquiry, I would be content that names are anonymised or given a cipher provided that all are then placed in bands that identify their comparative seniority in their employing organisation albeit in such broad terms that do not permit further identification”.
iii) Mr Mulcaire’s notebook “will be summarised so that its true significance and extent may be understood. The personal data of those who are listed in the journal as targets or potential targets shall not be included although names already in the public domain or where consent has been forthcoming may be“. The so-called ‘corner names’ of journalists would be anonymised and placed in a band that identifies their comparative seniority
iv) In relation to any other evidence that the Inquiry has received or receives (from whatever source), if there were concerns that its public deployment might cause particular risks to the investigation he would maintain confidentiality.
v) Decisions about the identity of those who give evidence will be made with all the concerns set out above in mind.