This month’s Mail Newspapers judgment in the case brought by Prince Harry and others was a comprehensive defeat for the claimants [2026] EWHC 1637 (KB). The judge found that, in relation to every one of the 57 pleaded articles, the claimants had failed to prove that Mail journalists had used unlawful information gathering (UIG).
While the judgment was greeted with predictable glee by Paul Dacre (“an overwhelming vindication of our journalism”), it raises two broader questions. First, why were the findings in this case so different from similar cases brought against News Group (the Murdoch papers) and Mirror Group? And second, what does it tell us about ongoing debates on press regulation?
On the first question, having spent an inordinate amount of time sitting in the courtroom listening to evidence and argument, I can confidently say that there was no surprise about the outcome. The judge could barely conceal his impatience with the claimants’ case and, particularly, with their counsel David Sherborne who was on several occasions instructed to “move on”.
The judge had considerable experience of phone hacking having been the barrister for Mirror Group in the landmark Gulati case in 2015 (in which David Sherborne was his opponent). In 2024, he had dismissed the Mail application for summary judgment and the claimants did not seek to suggest that he was not an appropriate judge for the trial.
The explanation for the different outcomes is that the judge applied a different approach to proof when establishing whether the Mail newspapers had used UIG: in contrast to previous cases, he ruled at an earlier stage of the litigation that any “generic” evidence of wrongdoing by Mail journalists could not be used to infer wrongdoing in relation to a specific article. He expected the claimants to show, in relation to each pleaded article, that a specific unlawful act had produced information in that article, and that its contents could not be explained by lawful means – personal contacts, contemporary media reports, a private PR briefing or other “benign explanations consistent with journalistic practice”.
It was a burden which the claimants were unable to discharge in any of the pleaded articles. But the judgment did not, contrary to some of the more jubilant press reports, give the Mail a clean bill of health. On the contrary, it noted the unchallenged evidence of Steve Whittamore – a private investigator who was convicted in 2005 for breaches of the Data Protection Act – whose written statement said that journalists who repeatedly used his services “knew that the information was obtained through illegal means such as blagging” and were well aware that he was “a practitioner of the ‘Dark Arts’”.
According to the Information Commissioner’s second report in 2007, the Mail newspapers were by far the biggest users of private investigators, on which they spent over £3 million. At least some of those PIs were implicated in the settled cases of News Group and Mirror Group. That the judge refused to draw inferences about the connection between the use of those PIs and specific articles, did not exonerate the Mail journalists; the evidence simply didn’t reach his threshold of proof.
Is any of this still relevant to debates around press regulation today? The answer is no and yes. It’s not relevant in that those debates centre on effective oversight of professional journalistic conduct, not unlawful behaviour. As the judge made clear, the court is not the place to conduct a public enquiry:
Given the evidence we heard in court, that is just as well. We were reminded time and again of some grotesque intrusions into privacy including intimate details of an ectopic pregnancy (which ultimately weren’t published), private medical records, mental health issues, and speculation about a child’s paternity. An obsession with Harry’s then girlfriend Chelsy Davy involved deep dives into such critical issues as her precise seat on a flight to South Africa. Press Gazette has helpfully chronicled every article, so readers can see for themselves the profound matters of state in which Fleet Street’s finest were so heavily invested.
Many of those same editors and journalists are still around today, which is why this still matters. However vehemently they may claim that “everything has changed” – precisely the same mantra that we heard, incidentally, following the Calcutt Reports in the early nineties – the evidence tells a different story.
Last year, following the death of a woman in a skydiving incident, a Mail journalist made several attempts to contact the woman’s partner at his home. In a detailed complaint to the press “regulator” IPSO, the partner’s mother said that a reporter sat in his car outside the property for “hours” and was “constantly in and out of his car and knocking on her door”, as well as hiding by the side of the house.
This year Dr Aidan Kelly, a clinical psychologist specialising in transgender healthcare, was falsely accused by the Mail of “doling out” puberty blockers. One of the most shocking cases, also featuring the Mail, was its 2021 publication of the CCTV footage of a young woman being fatally hit by a speeding car. The newspaper bought the footage from a nearby shop and, despite a request from police not to publish, they posted it less than a day after the event.
These are the stories of ordinary people who have been victims of press mistreatment, not high-profile celebrities or royal family members. They cannot afford multimillion pound litigation against a powerful newspaper, and there is no conceivable public interest argument for this kind of journalism beyond rubber-necking clickbait.
So the Mail litigation is a timely reminder of the continuing failure of the industry to regulate itself effectively and implement its own professional code of conduct. IPSO, the body set up by the industry to replace the discredited Press Complaints Commission, is just as useless as its predecessor – owned, run and dictated to by the very publishers it’s supposed to regulate.
The solution is to complete the framework recommended by Sir Brian Leveson (soon to be Lord Leveson after his elevation to the Lords) for effective self-regulation, overseen by the independent Press Recognition Panel. Parts of that framework exists, but it needs to be implemented properly by a government courageous enough to stand up against an inordinately powerful press lobby whose knee-jerk reaction is to scream “state control” at the slightest suggestion of accountability.
I have spent the best part of 30 years teaching aspiring journalists and campaigning for ethical journalism as the bulwark of a thriving democracy. But I have also watched in despair as ordinary people have been treated as expendable roadkill by the culture of some print newsrooms intent on prioritising commercial self-interest over proper journalistic standards. These are practices that damage good journalism as well as good people. And they are still happening.
Andy Burnham might just be the man to complete the Leveson framework. Faced with the collective outrage of national publishers fulminating about the end of 300 years of press freedom, he should recall the words of one of Fleet Street’s greatest editors, Harold Evans: “To portray [Leveson’s] careful construct for statutory underpinning as state control is a gross distortion”. It would be a fitting way to demonstrate that he’s on the side of the people against untrammelled power.
Steve Barnett is Professor of Communications at the University of Westminster. He is a founding member of the British Journalism Review and a director of Hacked Off.
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