An interesting Independent story on the Mirror’s Hacking travails has the barrister for the claimants, David Sherborne, making an allegation in open court that earlier public statements relating to phone hacking made by senior Trinity Mirror individuals were “knowingly false”. The Independent lists a whole set of statements including these ones:
“I am not aware of any deliberate transgression of the criminal law at the ‘Daily Mirror’ during my time as editor”. Richard Wallace, former ‘Daily Mirror’ editor
“The editors all confirmed that Trinity Mirror could say that our journalists work within the criminal law and the PCC”. Paul Vickers, former Trinity Mirror legal director
“Trinity Mirror’s system of corporate governance means that we work with the law and the code, which I believe we do”. Tina Weaver, former ‘Sunday People’ editor
“To the best of my knowledge, the law and the Code are adhered to in practice”. Lloyd Embley, editor-in-chief Mirror Group Newspapers (MGN)
This raises a whole set of interesting issues:
- If the Indy seeks to imply that some or all of these statements were knowingly false are they implying Mr Vickers’ statement was one of those?
- How many of these statements would have passed through the legal department before being made? My guess is at least some, but it is speculation at this stage.
- What does someone mean when they say they work with or within the law?
The latter claim is regularly made by senior Executives seeking to defend public allegations of wrongdoing. Yet it can mean a range of widely differing things; from we haven’t been shown by evidence that fully satisfies us (whether we have looked for it seriously or not) to have clearly breached any significant criminal law, to the much more meaningful, we have fully operated within the letter and the spirit of the law and have taken all reasonable steps to check that we have so operated. In other words, saying we operate within the law can be a smokescreen or a meaningful statement.
The last of the three bullet points is the least dramatic of the three but it also raises the role of in-house lawyer in advising on and assisting with the making of statements which are, or may be, designed to mislead the Company’s opponents or regulators. As previous posts have shown the same questions can often be asked of private practitioners.
It can often be difficult to judge whether such steps are taken by accident or design. Roy Greenslade, of the Guardian, wrote a piece criticising Mr Vickers in trenchant terms for his handling of an investigation into hacking within the Trinity Mirror group. Some readers will recall that Enron, and the News of the World have also sought to rely on investgations which were criticised as whitewashes. Similar allegations are habitually made where a client instructs internal or external lawyers to investigate alleged wrongdoing – some are well founded others less so. We will have to wait and see if such an allegation proves well-founded here. For now, all eyes must be on Mr Sherbourne. He cannot (or at least should not) make the allegations he has without evidence which can at least begin to reasonably make the case. It should not, in other words, be a mere allegation – he should have something. It would be interesting to see too if he has sufficient evidence to override legal professional privilege within Trinity. However, this interest may be frustrated: settlement will, almost inevitably, frustrate hopes for greater clarity, unless the relevant professional regulator steps in.