UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 1800-iii

House of commons

oral EVIDENCE

TAKEN BEFORE THE

Home Affairs Committee

Private Investigators

Tuesday 17 April 2012

Richard Caseby, JOn SteAfel and Philip Johnston

david jordan

Evidence heard in Public Questions 270 - 401

USE OF THE TRANSCRIPT

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Oral Evidence

Taken before the Home Affairs Committee

on Tuesday 17 April 2012

Members present:

Keith Vaz (Chair)

Nicola Blackwood

Mr Aidan Burley

Mr James Clappison

Michael Ellis

Lorraine Fullbrook

Dr Julian Huppert

Mary Macleod

Steve McCabe

Alun Michael

Bridget Phillipson

Mark Reckless

Mr David Winnick

________________

Examination of Witnesses

Witnesses: Richard Caseby, Managing Editor, The Sun, Jon Steafel, Deputy Editor, Daily Mail, and Philip Johnston, Assistant Editor, Home News, Daily Telegraph, gave evidence.

Q270 Chair: Mr Caseby, Mr Johnston, Mr Steafel, thank you very much for coming today to give evidence to the Select Committee on our ongoing inquiry into private investigators. We are aware that, through your various organisations, you have given evidence to the Leveson inquiry. You can take it as read that the Committee is aware of your evidence, so we may be asking you questions based on what you have said. It is always difficult when you have three witnesses at the dais to know when to come in. If you want to come in on a particular issue when we have addressed our question to a member of the panel, feel free to indicate, and I will call you.

Are there any interests that need declaring in respect of this session, other than that that is in the Register of Members’ Financial Interests? Thank you.

Perhaps I could start with a simple quick question to each of you, and then we will go on to substantive questions. Mr Caseby, if I could start with you. Have your newspapers in the past used private investigators, and have you now stopped the practice of using either a private investigator or an information broker?

Richard Caseby: The situation at the moment is that, in the past, we have used private investigators. I worked on The Sunday Times for about 23 years. I was managing editor for 13 years and last summer I moved over to The Sun. Private investigators have been used in the past on both The Sunday Times and The Sun. The situation at the moment is that, should anyone wish to use a private investigator, that would have to be signed off by the editor and the chief executive of News International. So far, since that rule came into force in October, no private investigator has been used.

Q271 Chair: Your journalists can use them, but you put in, in effect, a process-

Richard Caseby: Yes, there is a new protocol.

Chair: -in which the editor himself or herself-

Richard Caseby: The editor and then the chief executive of News International.

Philip Johnston: We have used private investigators hardly at all. We did a lot of work to establish whether anybody had used them beyond the normal protocols in the newspaper and could not find any use of private investigators over the past five years or so. I think there was one instance about six years ago where The Sunday Telegraph did employ a private investigator in a case where the journalist was facing some sort of threat, and it was thought that it would be better to confront the individuals. It was a story about an organised crime syndicate. But other than that, no, we do not use them. We do investigations, but we use our own reporters to carry those out.

Q272 Chair: Do you have something similar to what we have just heard from News International, a protocol? Presumably, if a journalist wants to use a private investigator, you will allow them to do so. Is that right?

Philip Johnston: If a journalist wished to use one, they would have to go to their line manager or to the editor and explain why, and the decision would have to be taken at that point. They would not be allowed to use one without any permission to do so.

Q273 Chair: Mr Steafel?

Jon Steafel: The straightforward answer is that, for the moment, we simply don’t use private investigators. In my experience of more than 20 years there, we have not done so. We did in the past use information providers, but we drew a line under that in 2007, stopped using them entirely, and use generally available resources nowadays.

Q274 Chair: In your experience, you have not used them, but you do not use them now?

Jon Steafel: Correct. We have not used them, and still do not use them. There was a period of time when we used information providers, as distinct from private investigators, and we stopped that in 2007.

Q275 Chair: I am surprised at that answer, because I think it is public knowledge that the Mail had instructed Steve Whittamore, who is a future witness before this Committee, to do some work for it. I think you paid him £143,000 to make 1,728 potentially illegal requests to find out phone numbers. Were you not aware of that?

Jon Steafel: I was drawing a distinction between private investigators and information providers. Mr Whittamore, whom we did indeed use in the 1990s and early 2000s, was an information provider, not what I would call a private investigator.

Q276 Chair: What is the difference?

Jon Steafel: In my view, a private investigator is someone who conducts inquiries about an individual. They may research their background; they may choose to follow them; they may choose to examine their life. An information provider, simply in response to a request, perhaps from a journalist or in some cases it might be a bank, insurance company or a local authority, would supply information such as a phone number or an address. I think there is a significant distinction.

Q277 Chair: But you accept that in the case of Mr Whittamore, who was of course convicted of an offence, he went beyond the remit that you had put to him?

Jon Steafel: We have obviously looked into this very closely and the overwhelming majority of requests any of our journalists made to Mr Whittamore during the time that we were using him were for what we would call perfectly legitimate pieces of information, such as a phone number in order to trace somebody you need to speak to for a story, or an address in order to contact them. Certainly, as far as we have been able to investigate, no journalist to our knowledge ever asked him or required him to do anything that was unlawful. Whether he went on and did so, it is very difficult for us to be sure.

Q278 Chair: Do you think there is a case for an industry-wide protocol as to how to deal with private investigators or information brokers? You make the distinction, Mr Steafel. Mr Caseby and Mr Johnston, do you make that distinction? Do you think that there is a difference between those two sets of people and that perhaps people can call themselves information brokers, but in fact are private investigators? It is a way of getting around the protocols.

Richard Caseby: Yes, I think there can be confusion between the two services that are provided between a private investigator and an information broker. For example, The Sun uses what one could call an information broker. I would call it a search agent. One of those agents is called Searchline. Searchline has a website and it is largely used by adopted children trying to find their birth parents. You can log on to that and they will find addresses for people to find their long-lost relatives. You can look at their forums and see how much good they do in the world. These are all legitimate, publicly available databases. It is just that it is a one-stop shop. That is a search agent.

Q279 Chair: But there is no protocol in News International covering information brokers?

Richard Caseby: What there is now is that any third party, such as an information broker, will be required to give an undertaking that they abide by the law and also abide by the PCC Code.

Q280 Chair: Mr Johnston?

Philip Johnston: That is the same with us as well. I do draw a distinction between a private investigator carrying out surveillance activity and search agencies that are finding information that is publicly available. Personally speaking, with 23 years on the Telegraph, a lot of that time as a reporter, I never used one myself at all but certainly with new technology and databases available in one place, the days have gone when you had to go to Companies House and spend hours there, and to the Land Registry and libraries to look up electoral rolls. These things are used by law firms as well. These are not uniquely used by newspapers.

Q281 Chair: We have the lawyers in next week to look at this issue. A final question from me on the Information Commissioner’s offer that all your newspapers should go along to his office to check the files of Operation Motorman. Have you all taken up this offer and looked to see whether any of your journalists were involved in that issue?

Jon Steafel: In our case, initially we wanted to see whether we could see these files in 2006, and the then Information Commissioner took the view that it was inappropriate to disclose them to anyone for a number of reasons, not least because he thought it would be potentially a breach of his own Data Protection Act but also that it might be unfair to a company to provide information that might be ambiguous about its employees. Subsequently, things have changed. Last summer, we were able to visit the current Information Commissioner’s Office. We were able to see some of the Motorman material. I did not go myself, but my colleague-

Q282 Chair: When you say "some", he offered to open all his files, but have you only had the time to see some, or did he only show you some?

Jon Steafel: As I understand it, what he made available to us was a part of the material relating to our company, so we saw a sample of the material, which was informative but also slightly difficult because there were many aspects of it that appeared contradictory or inconsistent. It was not a perfect picture of what had gone on.

Q283 Chair: Would you like to see more? You would like to see it all?

Jon Steafel: I think we have seen enough to understand what went on between our employees and Mr Whittamore.

Q284 Chair: So you do not want to see more?

Jon Steafel: I don’t think we feel we need to.

Q285 Chair: Mr Johnston, have you looked at your files or the files that refer to your journalists?

Philip Johnston: My understanding is that neither of our two titles used Whittamore so we were not involved in Motorman at all. We were not named in Motorman.

Q286 Chair: But he has offered you the opportunity of looking at the files. You didn’t take it up?

Philip Johnston: Not that I am aware of, no.

Q287 Chair: Mr Caseby?

Richard Caseby: Yes. I will take you back to 2006 when Richard Thomas, the then Information Commissioner, published his report What Price Privacy? and then What Price Privacy Now? I looked at his data, obviously with some interest, but also was confused by it because on the first face of it he was telling me that The Sunday Times had used Steve Whittamore 52 times. That did not accord with anything that I could check through my audits as a managing editor, so I wrote to him for more information, because he made several presumptions that were really quite-

Chair: "He" meaning the Information Commissioner?

Richard Caseby: Yes. He made several presumptions in that material, which were quite wrong. First, his numbers were wrong. There were not 52 transactions for The Sunday Times. It turned out to be four in the end, and he corrected that in his datasheet that he later published. That goes to the heart of the problem here because Steve Whittamore’s data, as I understand it, are really quite chaotic and very confused, so I have some sympathy for Mr Thomas and the fact that he could not quite make head nor tail of it.

Then again, Mr Thomas made about three different presumptions, which were quite wrong, in all that data. First of all, he regarded each transaction as one for illegal services-I am talking about back in 2006-which was an error. Also, as I said, he thought the numbers were accurate and based on reliable data, and they were not. Also, the thing that gave me most discomfort at the time was that he thought it unlikely that any public interest defence could be raised. So I wrote to him in 2006. I have a detail of the letter here.

Q288 Chair: Maybe you could send it to us. Thank you. That is very helpful information you have given, but as of now have you gone to look at the files?

Richard Caseby: Yes.

Q289 Chair: Are you satisfied that you have the name of any of your journalists involved in any activities?

Richard Caseby: I asked for the data at the time in 2006; he refused to give it. The files were opened again, I think it was last summer. Lawyers representing News International went down and looked at that data and drew a picture from them, but I have to say it is quite a chaotic picture. There are mis-names all over the place.

Q290 Chair: Do you not want to look at it again? That is it as far as you are concerned?

Richard Caseby: I don’t see that it is going to be particularly helpful. I heard the evidence of Christopher Graham, who gave evidence to this Committee. He set in process a means by which, if people feel they are a victim in any shape or form, they can approach the ICO and say, "Am I in the Motorman files?" He will give a straight yes or no. Then the ICO will help the individual make a proper subject access request. I think there is a process.

Chair: We have a quick supplementary from Mr Reckless, and then we will move on.

Q291 Mark Reckless: Mr Caseby, you said lawyers for News International went to look at this material. In our investigation into phone hacking and the media more generally, we have seen a lot of references to different lawyers for News International or other News Corp entities. Were those lawyers either Harbottle & Lewis or Lord Macdonald?

Richard Caseby: Linklaters.

Mark Reckless: Linklaters in this case. Thank you.

Q292 Bridget Phillipson: Some newspapers routinely pay people for information about themselves, whether it is whistleblowers exposing wrongdoing or kiss-and-tell style stories. Do you draw a distinction between those kinds of payments and payments to third parties about the private affairs of others?

Richard Caseby: Obviously there is a distinction, because if you are paying someone for a story-you said a kiss and tell or some other subject; maybe it is a whistleblower giving some information that is certainly in the public interest and should be aired-one can pay them, but I would say since July one has to be extremely careful indeed with the introduction of the Bribery Act. You have to be aware and we give training to all our journalists on The Sun about that, because under the Bribery Act, if you induce someone to break a confidence under their contract of employment, you can be in very serious trouble. At the moment, you have to be sure that there is an extremely strong public interest before you can pay someone in those sorts of circumstances.

Philip Johnston: Certainly, if there is a public interest involvement then Richard is right. The Bribery Act does not seem to have a public interest defence there. In our sort of journalism and the areas that we would be investigating-recently abortion clinics, and before that exam boards-I don’t think this arises for us, to be honest.

Jon Steafel: I think there is a very significant distinction between people who approach a newspaper wishing to tell their story and wishing to be paid for their story, and people who are in the business of supplying information. If someone approaches us with a story they want to tell and requests payment, and they are entitled to request payment, then we listen and we subject that story to the fullest scrutiny we possibly can. We need to make sure that what they are saying is genuine, legitimate and they are entitled to say it. If they were going to be paid, they would not be paid until the story was published. It would only be published if we were satisfied journalistically, ethically, legally that it was appropriate to publish it. Richard’s point about the Bribery Act is a significant one. All of our journalists have received Bribery Act seminar training since the Act came in, in order that they are aware of the requirements of that Act in any such dealings with people.

Q293 Mr Winnick: Would you consider it unethical in some respects for private investigators to be used by newspapers to get stories?

Philip Johnston: Would I consider it in some respects to be unethical, or in all respects? In some, maybe. In principle, I do not have an objection to the use of private investigators. Our paper does not use them. In all the years I have been on the paper, on the Daily Telegraph, anyway, I can’t recall private investigators being used. I do not have an objection in principle. It is just that it is not our practice to do so.

Q294 Mr Winnick: Would that be so for your two colleagues? You said you would take the same view-that it is not necessarily unethical.

Richard Caseby: No, it is not. I would take legal advice, obviously, before I did so.

Jon Steafel: I would have a similar view. As I said earlier, it is not my experience that we have used private investigators. As a principle, I would start from the position that our journalists ought to be able to find out the information themselves and we should not need to go to private investigators. On the rare occasion that we might have to, we would have to take strong legal advice and consider it very carefully.

Q295 Mr Winnick: Could I ask you this question? In view of the Leveson inquiry and all that led up to it and the obvious interest in the inquiry as it continues, would it be right to say that on this, as on other issues, there is greater concern about what you do or do not do as daily newspapers-greater concern about how you go about your daily business, as the result of the Leveson inquiry?

Richard Caseby: Absolutely. There are a number of features, obviously. I work for News International; I have worked there for over 20 years. I was shocked by some of the revelations accorded by the News of the World.

Q296 Mr Winnick: Deeply shocked?

Richard Caseby: Deeply shocked, yes, absolutely. Numerous people have been arrested, as such, and we will see where the law takes us.

Q297 Mr Winnick: It came as a total surprise to you?

Richard Caseby: Absolutely.

Mr Winnick: Thank you.

Richard Caseby: I would say that we have a new chief executive. We have new governance procedures, which he has outlined, and others have, to the Leveson inquiry. I am satisfied that the company is on the right path.

Philip Johnston: I would like to think we always took great care about how we went about investigating stories or gathering information. As Jon Steafel said, I think it is the function of journalists to do that themselves, by and large. It is also a good practice.

Q298 Mr Winnick: But Leveson has made the paper perhaps more concerned about that?

Philip Johnston: The whole industry has been, I think, shocked by what has happened as a result of the phone-hacking scandal. Certainly, we all think very carefully about what we are doing, yes.

Jon Steafel: I would not disagree with that. It is absolutely inevitable that, since last year, since the institution of the Leveson inquiry, all journalists have thought very hard about the way they go about their business; all editors have thought very hard about the instructions and advice they give to their journalists. But that is not because of a previous history that we should be embarrassed about. It is because we are alert to changes that are happening in the industry and concerns that are arising out of the inquiry. It is common sense.

Q299 Steve McCabe: Mr Caseby, this authorisation that the editor and the chief executive give for the use of a private investigator, do you know what criteria they use for determining that, and are there any written guidelines?

Richard Caseby: We don’t have particular written guidelines, because every case would be on a case-by-case basis. Every one has its own peculiar features. I have to say, in my 23 years or so at News International, I have never instructed or known of an instruction actually to put someone under surveillance from either of the two titles I have worked for.

Going back to your original point about the confusion between search agents and private investigators, and when I talk about having used private investigators in the past, you can use a private investigator who also happens to be a search agent. There is confusion in the industry, without a doubt, about that and that is how I would characterise it. Many years ago-I am talking about maybe 15 years ago-one might use a private detective for covert filming during a long-term investigation, whereas these days technology has moved on and reporters, trained investigative reporters, do that themselves because technology has changed. You do not need a briefcase with a camera in it any more. You can have one in a buttonhole.

Q300 Steve McCabe: Are the criteria that are used to decide whether or not you should authorise this kind of activity down to the judgment of the editor and chief executive, nothing else?

Richard Caseby: Exactly. Yes, it is their judgment.

Q301 Steve McCabe: Does that same process extend to payments to other third parties, or is this solely for information providers and private investigators?

Richard Caseby: Just to be clear, the governance procedure is that private detective work would be signed off by the editor and the CEO. Search agents-and I have talked about one or two already-are totally transparent about their business. As I say, anyone can use them, and anyone can log on there. Those are people where there is a separate authorisation procedure, as I explained.

Q302 Steve McCabe: Yes, I understand that. Sorry, maybe I should have been clearer. What I was trying to ascertain was, if you were about to make a big payment to a third party who wanted to sell their story or someone else’s story, would that go through the same process of the editor and the chief executive authorising it, or does someone else make that decision?

Richard Caseby: No, it would largely be the editor on a straightforward story-

Q303 Steve McCabe: So no chief executive involvement there?

Richard Caseby: He might wish to know about it at a monthly title meeting, because obviously, we operate within a budget. That is purely about money rather than the ethical criteria around it, if we are talking about a large payment.

Philip Johnston: I think the same process would take place on our newspaper as well. We do not, for instance, any longer allow cash advances to journalists, so there is no method whereby just cash can be handed over. Not that I am saying it was in the past, but it is just simply a change in the way we do things. Any payment over a particular level would have to be authorised at least by the managing editor.

Q304 Chair: What level is that?

Philip Johnston: I think it is £1,000.

Q305 Chair: Anything over £1,000-paid to an information broker?

Philip Johnston: No, for information brokers we have a set fee with a particular company.

Q306 Chair: What is the fee?

Philip Johnston: I don’t know. It is a contract with whomever the information-these are just search agencies, basically. You just ring up.

Q307 Chair: I am puzzled by-not puzzled; I am interested in what Mr Caseby said. He said there is confusion. Some of the private investigators you all deal with put themselves out to be information brokers. Who checks what they are? Whose responsibility is it to check whether it is in fact just a branding issue-that they are really private investigators, but they call themselves information brokers? Has anyone checked?

Richard Caseby: I would say it is the other way around. There is an information broker, or rather a search agent as we call them, and they do a particular point of work. They have access to legally available databases and they provide straight information. It is a desk-bound job. You could have a private investigator who might, if you wanted him to, operate surveillance or other activities, such as he might do for an insurance company or a debt collecting agency; but he might have another line of business, which is also acting as a search agent because he has access to these databases at the same time. It will be a business with two arms.

Q308 Chair: Yes, but nobody checks that, do they?

Richard Caseby: I do not believe we use anyone in that way. I am saying that has been, historically, a confusion and is one I think you should be aware of.

Q309 Chair: Mr Steafel, anything to add?

Jon Steafel: There is a distinction here, which I do think is important. Since 2007, we at the Mail have not used information brokers-

Chair: Or private investigators.

Jon Steafel: We were not using private investigators before that and we are still not using them. Since 2007, we have not used information brokers at all. They were banned in 2007. All our journalists know this. They use online subscription databases to research that information-eTrace and Tracesmart-which I am sure are comparable to the kinds of things Richard has mentioned. Those are services where the issue of checking out that they are not private investigators does not apply. Their legitimacy was established before we signed contracts with them and they are simply online databases that people access information on. So, it does not apply to us.

Chair: Very helpful.

Q310 Michael Ellis: Why did the Daily Mail ban private investigators or the use of them so long ago?

Jon Steafel: Our actions were all in response to the Information Commissioner’s reports, the two What Price Privacy? reports, which were in 2006. After the first one was published, we set about investigating what our relationship with information providers was. We contacted all those information providers to try to establish for certain that they could assure us that they were not doing anything that was in breach of the Data Protection Act. We checked with all of our staff that they fully understood their responsibilities. After the second Information Commissioner’s report came out, we made further checks. Everyone who worked for us was written to. Their contracts were adjusted, so it made clear that everything they did had to be compliant with the Data Protection Act. Then we reached a point-

Q311 Michael Ellis: You discontinued using them?

Jon Steafel: We discontinued using those agencies, because-

Q312 Michael Ellis: I am just trying to establish, Mr Steafel, why the Daily Mail discontinued using them, if they are so routinely used by other newspapers and they are so innocuous that lawyers and others use them on a routine basis. Do your journalists do more than journalists in other newspapers themselves? Is that how it works?

Jon Steafel: I can’t speak for why a decision was made by any other newspaper company as to whether they should use such people or not. What I can say is that our reason for ceasing the use of these people is that there was obviously an area of concern raised by the Information Commissioner’s report. We did not want to be in a situation where anything that our journalists were doing might have been open to question as to whether it was legitimate or not, even though we were very confident that what they were doing was simply getting phone numbers and addresses.

Q313 Michael Ellis: It was routine?

Jon Steafel: It was routine, so we stopped it to remove any area of doubt.

Q314 Michael Ellis: I think you all differentiate between private investigators and information brokers. Mr Steafel, you have been calling them information providers. That is the same thing, is it? You discontinued, on the Daily Mail, using information providers in 2007.

Jon Steafel: That is correct.

Q315 Michael Ellis: Do you use the search engines, adoption services and other organisations that can be used to trace people?

Jon Steafel: We used two online search databases, eTrace and Tracesmart.

Q316 Michael Ellis: Do you have investigative employees, in that case, who are not external agents as such but are servants of the company in the traditional sense, employees of the Daily Mail? Is that how information is sourced in some cases?

Jon Steafel: We have a large team of staff journalists, and much of what staff journalists do involves finding people in order to talk to them about the stories that they feature in. I am not quite sure what you are getting at.

Q317 Michael Ellis: I am just trying to establish whether it is not a question of using external private investigators because you have in-house private investigators.

Jon Steafel: No, not at all. The key thing to understand is that the dissemination of this kind of information is completely different now from what it was a decade ago. A decade ago, Google was in its infancy, Facebook didn’t exist, and there was no Bebo. All of the very easy online things that people have at their disposal as journalists to try to find people and contact people were not there. They are now there, and every journalist with their laptop with internet access can use those.

Q318 Michael Ellis: Are you all confident, following what the Chairman was saying earlier, that you all have healthy protocols in place so that you in the management of the company are not being blindsided by people working for you who are doing things without your knowledge? Are you confident that there are protocols in place?

Richard Caseby: Absolutely. As I said, the new CEO of News International has put in new governance measures. We have also appointed a compliance officer across the entire company to make sure that these procedures are adhered to, and managing editors are also being trained, again.

Philip Johnston: We are confident too, and a good deal of work has gone into ensuring that all those protocols are understood by the staff as well.

Jon Steafel: Absolutely. All of the individual journalists know exactly where their responsibilities lie and what the boundaries of what they should and should not do are.

Q319 Chair: In answer to Mr Ellis, they have it in writing, have they?

Jon Steafel: They have been written to. Their contracts are clear. There have been seminars on data protection. Indeed, a very important part of the job of the individual executives who are in charge of groups of journalists, news editors, features editors and so on is rigorously to test and question the reporters working for them about the basis for their stories.

Chair: What would be extremely helpful, and I think the Committee would find most helpful, is if you could send us an example of the protocols that you have now put in place, something that you give in writing to your journalists so it is very clear what they are allowed to do and what they are not allowed to do. I think we would find that extremely interesting.

Q320 Dr Huppert: I am interested in the use of these information brokers, search agents and so forth. Presumably, there is no regulation of any of them. If you suspect in any way that any of the data in their databases had been obtained unethically or unlawfully, what procedure would there be for taking action on that?

Richard Caseby: Well, obviously, if we felt they had broken the law, we wouldn’t use them. In a way, two things are happening.

Q321 Dr Huppert: Do you look to see in any way if they do?

Richard Caseby: Well, I am not the police. If they fall into trouble or it is brought to our attention that they are committing an illegal act or have got the material illegally, we would be concerned about it, but I have seen no evidence of that at all.

What I was going to say is there are two pressures at the moment. Obviously, there are the ethical pressures that you have mentioned around the Motorman report but also, as Jon has explained, there are technology pressures as well, and it is changing the way business is being done. For example, there is one piece of software run by the GB Group. It is rather similar to the means that Jon uses at the Daily Mail. They have access, legally, approved by the Information Commissioner, to 50 million telephone numbers, 14 million mobile telephone numbers and about 13 million ex-directory numbers. Those are all legally obtained, because people have consented to give those numbers, either through marketing procedures or from buying things online. It is a huge industry, and, in a way, search agents are being squeezed out of the picture because there is so much legitimate and legally available information now on databases.

Q322 Dr Huppert: You are implying that search agents do not provide legitimate and legally available data.

Richard Caseby: No-that was obviously a confusion. Obviously they do, as I explained. There are other databases one can use, like Trust Online, where you can search a public register of county court judgments for the last six years. All this is new and available and has all happened in probably the last 10 years.

Philip Johnston: That is a very important point in view of the Committee’s inquiry into why the new regulatory framework has taken 10 years to be put into effect-if it is going to be put into effect. The whole industry, the availability of information and the ability to get the information has completely transformed in the last decade. It is now possible, if you so wish, to sit up at midnight in your own home with a laptop and get information from Companies House, the Land Registry or from anywhere yourself. That is what we would encourage more than anything else. However, it may be the case that a reporter is away from the office, out on the road for instance, doing a story over three days, or under abnormal pressure. Using one of these online agencies, which has access to the same information but can do it as a one-stop shop, is beneficial to the journalist.

Q323 Chair: Mr Steafel, your journalists do not use it because they know how to use Facebook?

Jon Steafel: In answer to Dr Huppert’s question, it does not really apply because, as I have said, we stopped using these kinds of information providers in 2007. The resources we use are either subscription databases or the profusion of online resources of the type that Richard and others have mentioned. It is out there.

Q324 Dr Huppert: Do you think there are circumstances where obtaining information by means of deception is acceptable in the media industry and, if so, what are the constraints? Obtaining information by means of deception: are there any circumstances where that would be a legitimate thing to do?

Richard Caseby: Well, yes. If you read the PCC Code, there are particular rules that are actually associated with the use of subterfuge. Obviously, the story has to be in the public interest. You have to be able to justify it in that course. Subterfuge-I make no bones about it, in my time on The Sunday Times and the investigations that The Sunday Times has done into laws, expenses, MPs, subterfuge has often been used. It was used in a recent story in The Sunday Times about the treasurer of the Tory Party.

Mr Winnick: Excellent story.

Richard Caseby: Thank you.

Q325 Chair: Let us not get diverted, colleagues. Mr Johnston?

Philip Johnston: I totally agree with that, yes.

Q326 Chair: You agree. Mr Steafel, do you agree?

Jon Steafel: It is very simple. Public interest is the only question, and your understanding of the public interest test is what you need to apply before you consider subterfuge.

Q327 Mr Clappison: Can I ask Mr Steafel, and perhaps the other gentlemen as well, you have told us you’ve no longer used either private investigators or information brokers since 2007. We are taking evidence from the BBC as well slightly later on, so I wonder if I could ask your personal opinion of this. In the light of the changes you have made, and also the developments that you have told us about this morning in the way in which information can be obtained these days, do you think it is necessary for either print or broadcast journalists to use private investigators any more? I am conscious the BBC have told us that we are using still substantial amounts of licence payers’ money on this.

Chair: Mr Steafel, you do not use them, do you?

Jon Steafel: We do not use them, and we have not found it necessary to use them. I would not presume to speak for whether the BBC should or should not be using them.

Chair: They are coming in next; so, a matter for them.

Philip Johnston: We do not use them either. There may be circumstances when in order to get a story about some serious wrongdoing it is essential to do so.

Richard Caseby: They have not been used since the new governance procedures came into force, but I would not rule it out.

Q328 Chair: They are all out of date now. We have the internet. Are they all out of date, private investigators?

Richard Caseby: I did look at Christopher Graham’s evidence to the Committee, and he said something quite telling. He said there is precious little evidence that this has much to do with the press these days. I think it is because time has moved on. If anything, journalists are peripheral customers of PIs these days, is the truth of it.

Q329 Nicola Blackwood: You have all clearly stated structures that you have put in place to manage internal decisions about information brokers and so on, and have made clear the value of investigative journalism, which I do not think anyone on this Committee would argue with. It has an incredibly important role to play. The problem is that the issue that hasn’t really been addressed yet is how you judge the public interest when deciding to use deception or any of these other slightly difficult elements. Clearly, it is that sort of public interest test that failed with Milly Dowler and in other elements, and which the PCC does not quite seem to be able to grasp hold of. In addition to that, public interest is not necessarily what the public is interested in, and I think this is the difficult issue that you seem to be grasping.

Can I ask, in the light of Leveson and everything else that has gone ahead and the difficult decisions that have to be made in terms of deception, how have you changed the way in which you might approach a public interest test? How do you judge the public interest?

Richard Caseby: I would say that public interest, extreme public interest, starts with criminality and moves lower down the scale. The difficulty is that every story has its own individual features and pressures within it, so each story-and I know you might think this is a pat response-has to be judged on its own merits, but it has to be judged by someone who is the head of news, probably by the editor, and certainly with some legal advice. I think this has become far more focused with the introduction of the Bribery Act, because now, should anyone wish to pay anyone at The Sun, they have to notify the managing editor by e-mail so there is a record of this, and the public interest of that particular story will be discussed and a record kept of it. So there is far more focus on that now than there has ever been before, but I can’t sit here and give you a definition of public interest. I can give you the sorts of scales of it, but every story has its own particular features.

Philip Johnston: I would agree with that. It is very hard to define it, and you have a lot of experienced journalists at different newspapers, with different priorities and different approaches, who bring that experience to bear when they decide to investigate a story and whether to write it.

Jon Steafel: I would agree certainly with the point that public interest as a factor in journalistic decision making is greater than it has ever been and editors and lawyers are involved all the time. In terms of defining public interest, yes, criminality is at the top of the scale, deliberate wrongdoing is very close, and there is a broader point of it being a reasonable and responsible role of the press to hold public bodies to a degree of scrutiny on behalf of their readers. That is a factor in defining what the public interest might be in any given story.

Q330 Lorraine Fullbrook: Gentlemen, I would like to ask you-and particularly in the case of Mr Caseby and Mr Johnston, who said they would not rule out the use of private investigators-as potential customers of private investigators, would you be in favour of a statutory regulatory regime of private investigators?

Richard Caseby: In all honesty, I do not think I know enough about the industry-as I said, we are peripheral customers-to start offering advice about how a regulatory framework should work for private investigators. The sort of work that they cover covers far more than the sort of thing that a newspaper might ever use them for, having read some of the earlier evidence from some of the larger commercial firms. I think we have our work cut out trying to regulate our own industry at the moment.

Philip Johnston: I read the evidence from the private investigation industry itself. They seem to be in favour of some sort of regulatory framework-provided, of course, as the Act says, that the newspaper industry, the press, are exempt from that statutory framework, which I think is in the Act.

Q331 Lorraine Fullbrook: Mr Steafel, do you have a view on this?

Jon Steafel: As I have said repeatedly, these are not organisations we use. As a general point, I would say that regulation of that industry is a matter for that industry and its customers. So the law firms, the banks, the insurance companies, the local authorities who have cause to use these firms, as well as private individuals, may well be the best-placed people to give you a view.

Q332 Lorraine Fullbrook: You all use information brokers or search agents, whichever you would like to articulate them as; do you think there should be a competency assessment of these people as regulation of propriety and ethics?

Jon Steafel: A competency assessment? I am not quite sure what you mean.

Lorraine Fullbrook: Yes, a competency assessment. You do not know when you get the information how you have come about getting it.

Jon Steafel: We do, because we are using these online databases, which are examined before we have done any contracts with them and agreed to use them-that their resources are only legitimate resources, such as electoral registers and telephone directories; the range of information that Richard mentioned earlier. We have established their bona fides before we have agreed to use them.

Q333 Lorraine Fullbrook: But I think you said that you really use your own people, your investigative journalists.

Jon Steafel: Absolutely, and they would use online resources.

Q334 Lorraine Fullbrook: Mr Johnston?

Philip Johnston: Exactly the same position, yes. We would establish the bona fides of the group, of the company that we are using, whether it is Tracesmart or one of the search agencies, in advance.

Q335 Lorraine Fullbrook: So how do you do that? How do you assess them?

Philip Johnston: We enter into a contract with them and we talk to them. We are only asking in these cases to obtain information that is legally available.

Q336 Lorraine Fullbrook: Mr Caseby?

Richard Caseby: Yes, I would say that a code of practice might be helpful because, in other words, we are having to impose our own on private investigators, so a starting point might be useful.

Q337 Alun Michael: I think we have to make a distinction, do we not, between the profession-if it is such-of investigation, of a private investigator, or a company that undertakes that sort of activity, and the activity itself. If there is a statutory regime for private investigators, should that also encompass the activity of investigation undertaken for journalistic purposes?

Richard Caseby: It would anyway, wouldn’t it? If they are being statutorily regulated as an industry, obviously it would have an impact on our use of them, should we use them.

Q338 Alun Michael: Yes, so that would affect it whether it was in-house or-

Richard Caseby: Oh, I see what you mean. You are talking about in-house investigative journalists? I am sorry, I wasn’t with you.

Alun Michael: Yes.

Richard Caseby: Of course not. They are not private investigators, they are investigative journalists. There is a big distinction.

Q339 Alun Michael: There is a big distinction and, as an ex-journalist, I appreciate that distinction, but there is a difficulty in how you draw the line legally, isn’t there? For instance, how do you avoid private investigators reinventing themselves or redefining themselves as journalists in order to get round a regulatory provision if there is a journalistic-

Richard Caseby: I see what you are gunning at now. That is a particular problem, because I dare say that might happen.

Philip Johnston: Even though I did say that we do not object in principle, we don’t actually use them, so that problem wouldn’t arise.

Q340 Alun Michael: No, but I am making the point that there is a distinction between the "them"-at the moment, there is not a legal definition, and I think you agreed earlier that it is difficult to draw the line between investigators and information providers. If the activity is the issue, where do you draw the line as to whether that is legitimate or how it is regulated? Obviously you have talked about the way that you nowadays regulate in-house activity as well as the commissioning of private investigators. How does-

Philip Johnston: I think you have to draw the line the way the Act did draw the line, which is to exempt certain areas from its provisions. I suspect this is one reason why it has taken so long to implement this particular aspect of it, because of the difficulties of definition. There is a whole list of exemptions in the Act, having defined what private investigation is. I think that is probably the only way you can do it.

Q341 Alun Michael: But you would accept that there is a risk that redefinition by people to say, "Well, we are inside the exclusion" could lead to problems for legitimate journalism?

Philip Johnston: Yes.

Q342 Chair: Thank you very much. Mr Caseby, I think that you would like to share with the Committee a particular case that you think is of interest.

Richard Caseby: Yes. Even the most well meaning investigations can sometimes come off the rails in their use of private investigators. In preparing for my appearance today, I refreshed my memory of some of the evidence that had been given by witnesses to the Leveson inquiry, and this paragraph caught my eye from the witness statement from Mr Alan Rusbridger, the editor-in-chief of The Guardian. In his witness statement, he said, "In 2000, we commissioned a report about allegations of corrupt links between an international corporation and officials in Europe and Whitehall. We used a corporate security company run by two leading former SIS officials. They could not substantiate the allegations and no report appeared", and that was that. Reading that paragraph, I think you could be forgiven for thinking that Mr Rusbridger was almost starring in his own version of a Jason Bourne movie, but in actual fact the truth is far more prosaic and perhaps troubling.

In 2000, Mr Rusbridger personally commissioned private investigators to probe the life of a Whitehall official whom he suspected may have been taking bribes from Monsanto, the biotechnology company, to influence government policy on GM food. But let me say from the outset this was a false allegation and there was no truth in it whatsoever. One of those put under investigation was Geoffrey Podger, the First Chief Officer of the Food Standards Agency. Mr Podger is a man of unblemished integrity. He is currently the respected head of the Health and Safety Executive. But this was a highly invasive operation, albeit it took place 12 years ago, which targeted not only Mr Podger but also his elderly mother. So, let me say this was a fishing expedition by Mr Rusbridger, and he was not fishing for salmon with a fly. This was a deep ocean industrial trawl that dredged the seabed of Mr Podger’s private life.

Chair: That is extremely helpful.

Q343 Mr Winnick: But what was the point?

Richard Caseby: Can I finish?

Mr Winnick: Mr Caseby perhaps has some sort of grouse against The Guardian. I do not know if The Guardian has ever done anything against the Murdoch press-I would not know-but if we are going to have these anecdotes and the rest, perhaps other newspapers could also be brought into the frame.

Q344 Chair: Order. I think what would be very helpful is if you could just tell us the point of bringing this to our attention.

Richard Caseby: I will get to the point, yes. Mr Rusbridger’s statement on this matter to the Leveson inquiry I have to say I think was self-serving.

Chair: Your comment on another witness to Leveson is not an issue.

Mr Winnick: He wanted to get it off his chest.

Q345 Chair: But I think what would be very helpful is if you just came to the point of why you are trying to tell us this.

Richard Caseby: Okay. I think that he probably set off with the best of intentions with these private investigators, and his operation really came off the rails, and I think he probably owes something of an explanation as to what happened.

Chair: That is extremely helpful, and since you have raised it here, I will write to him about this. Thank you very much for coming, Mr Caseby, Mr Johnston and Mr Steafel. Thank you.

Examination of Witness

Witness: David Jordan, Director of Editorial Policy and Standards, BBC, gave evidence.

Chair: Mr Jordan, if you would take the dais; thank you. We have an interest to declare, colleagues, from Mr Winnick.

Mr Winnick: I think Mr Jordan and I know each other, and therefore I should declare it accordingly.

Q346 Chair: Thank you very much. Mr Jordan, thank you very much for giving evidence. You have heard from your colleagues in the print media. I was a little surprised to read the evidence of the Director-General to the Leveson inquiry, where he told the inquiry that a third of a million pounds had been spent by the BBC hiring private detectives on more than 230 occasions between January 2005 and July 2011. Given that we regard the BBC as the most impressive journalist organisation in the world-or I certainly do-I was very surprised that you could spend a third of a million pounds of licence payers’ money on using private investigators. Why did that happen?

David Jordan: First of all, I think it is important to say that that was £300,000 over six and a half years, so the total amount per annum was under £50,000 per year, which is, as I understand it, well under the insubstantial amounts that even Members of Parliament get paid these days for an annual amount.

The second thing that I should say is that I think it is important that you understand when it talks about paying private investigators what that money was being spent on. Unlike my colleagues who have just given evidence, we incorporate all of the different range of activities, from information gathering right through to what we call security services, in that amount. So a very substantial proportion of that amount was spent on making sure that consumer investigation programmes like Watchdog or Rogue Traders or other programmes of that sort had what we call muscle with them when they go to doorstep errant plumbers and gas engineers and so on.

Q347 Chair: So these are not private investigators; these were bouncers?

David Jordan: No, they are private security companies, which are called private investigators, and in the interests of being as open and transparent as we possibly could we put all of that material in together. The amount of money that was paid for what you might call investigative purposes for private investigators was extremely small, even out of what I would regard as quite a small amount in relation to the overall news budget and current affairs budget of the BBC, or the overall budget of the BBC on an annual basis.

Q348 Chair: I am just using the words of your Director-General. He described them as private detectives, I understand.

David Jordan: No, he described them as private investigators.

Q349 Chair: Yes. So one would assume that they were doing private investigating, not acting as heavies around journalists who are knocking on people’s doors on consumer programmes.

David Jordan: He makes it clear in his evidence to Leveson what kinds of activity that they were undertaking, and I think I defined the three kinds of activities. One is the security activity, which I described, where we routinely provide security for people who are undertaking dangerous activities, in the sense of doorstepping people and so on and so forth. One was surveillance activity, where again, in order to establish the whereabouts of people, we may employ private investigators rather than using our own journalists-who have no particular expertise and frankly can be better employed doing other things-to make sure we know where people are if we want to serve them a right of reply letter or doorstep them and so on. The third area is what you might call investigatory work, where they are finding things out, or to give another example-

Q350 Chair: So how much was paid on private investigators, Mr Jordan?

David Jordan: The amount that we have laid out was paid on private investigators, but if you see in our evidence-

Chair: No, how much was it?

David Jordan: It was divided down into a number of different amounts and the different amounts were-we could not and did not break them all down but, for example, £140,000 out of that £300,000 you mentioned was spent in Vision Factual, and Vision Factual is Rogue Traders and Watchdog, so the vast proportion of that would have been spent on security services and surveillance.

Q351 Chair: Mr Jordan, this sounds all very vague.

David Jordan: I don’t think it is vague at all, Chairman.

Chair: We have heard from the print media that they have put in place protocols. I would expect from an organisation like the BBC, with some of the finest journalists in the world, you would have in existence protocols or instructions or guidance that is used in order to decide whether or not a journalist can use a private investigator, and the use of licence payers’ money-because you are in a different position to, for example, the Mail-would be monitored very carefully by someone like you. Did this not happen?

David Jordan: We have substantial protocols in place that effectively would govern the use of any private investigators to do any work that involved the invasion of anybody’s privacy. If you look at the chapter of our editorial guidelines about privacy, it makes it absolutely clear that we can only justify intrusions into people’s privacy on the grounds of public interest. It sets out the most exhaustive public interest test of any journalistic organisation in the country.

Chair: I am sure it does.

David Jordan: It also talks about the absolute critical need for proportionality in any intrusion into privacy and that the level of intrusion is proportionate to the public interest involved. That is much greater clarity than, for example, is provided by the PCC, any newspaper, or indeed any other broadcaster.

Chair: I am sure it is, and I am sure you are going to send me a copy at the end of this process.

David Jordan: You would be very welcome.

Q352 Chair: Going back to my original question, if we take away the heavies, the people who go along and look after journalists for consumer programmes when they knock on the doors of people who are behaving improperly, how much did the BBC pay on what you and I would regard as private eyes?

David Jordan: To undertake operations that included undercover operations in places like Northern Ireland, or investigating serious criminality, where you don’t necessarily want to send in David Dimbleby or somebody who might be recognised, and to undertake a very limited number-

Q353 Chair: Yes, I know what they are for, but how much did you spend on them?

David Jordan: I think it is important that you understand what we are spending it on, to undertake a very limited number of searches for information-about £150,000 in total over that period.

Q354 Chair: Between 2005 and 2011?

David Jordan: Between 2001 and the middle of last year-1 January 2001.

Q355 Chair: Why did you stop using private investigators? You obviously made a decision that you would stop doing so.

David Jordan: I don’t think we have ever said that we have made a decision to stop using private investigators.

Q356 Chair: So you are still using private investigators?

David Jordan: At the moment, I don’t think we are, but we have not ruled out the possibility of doing so.

Q357 Chair: We got quite good clarity from the newspapers who were here, and I am not sure that the Committee is getting equal clarity from you, so let’s be just clear on this. The BBC still tells its journalists that they can use private investigators as opposed to, for example, information brokers? Is that right? It is just a yes or no.

David Jordan: We do not make a distinction between private investigators and information brokers. Anybody wanting to use a private investigator for investigatory purposes-it would be a referral to me personally, and I would have to agree it, as well as a referral to senior line management in the area concerned. By definition, there are going to be very few occasions where we are ever going to use a private investigator in those circumstances.

Q358 Chair: Of course. So you still use them, they are able to use them, but if they do use them they have to come to you first personally and you will sign it off?

David Jordan: Exactly.

Q359 Chair: Thank you. Have you used them this year?

David Jordan: Not that I am aware of.

Chair: Thank you.

Q360 Nicola Blackwood: Mark Thompson said in his statement to the Leveson inquiry that, "The BBC believes that there are exceptional circumstances in which the public interest involved in a given journalistic investigation would justify the use of so-called blagging". Do you think that you could give us some examples of what kind of exceptional circumstances would justify that kind of activity?

David Jordan: Yes, I could. I think we undertook two in the context of our audit of the use of these kinds of techniques for the Leveson inquiry. The two that we came up with were, first, an instance where Steve Whittamore had been asked to trace whether a known and convicted paedophile, whom we believed was gaining access to children again, was on a particular aeroplane returning from a foreign country. We were anxious to make sure that this particular individual didn’t gain access to children in the UK, and we were keen to investigate and keep an eye on what he was up to.

Q361 Nicola Blackwood: Did you inform the police about that?

David Jordan: We didn’t because he was not on the plane.

Nicola Blackwood: Right.

David Jordan: Whether that was because Mr Whittamore gave us the wrong information or whether the information was just unobtainable, I do not know.

Q362 Nicola Blackwood: The second instance?

David Jordan: The second was that we were conducting an investigation into a bail hostel in Bristol. We believed that paedophiles who were resident in the bail hostel were gaining access to children in the area, and we were keeping a number of them under surveillance to establish whether that was the case, with prima facie evidence to the effect that it was. We lost track of one of them. We were very worried that this person was now going to be operating somewhere where we didn’t know he was operating. We were anxious to inform the authorities that that was the case, and a phone call was made to his home.

Q363 Nicola Blackwood: Where you have these alleged paedophiles under surveillance, do you inform the authorities when you have them under surveillance and you know where they are, or do you only inform the authorities when you lose them?

David Jordan: We only inform the authorities if we think that there is some form of severe risk to someone in society from them, so until we have gained-

Q364 Nicola Blackwood: So you take it upon yourselves to carry out surveillance?

David Jordan: We have a very particular protocol in relation to undertaking these kinds of activities that involve an intrusion into people’s privacy. We have to have prima facie evidence that something wrong is being done. We then have to stand up that evidence ourselves, and then we have to gather the evidence through secret recording or some other methods. We don’t tell the authorities unless we have gathered evidence that something is going wrong and we can demonstrate it. The only other occasion on which we would inform the authorities is if we believed there was a severe danger to somebody from the activities that were going on, in which case we would go to the relevant authorities-the police or whomever else it happened to be. We keep these activities under constant review through the protocols that we have in place, and therefore we are always in a position to assess at any given moment whether we should be carrying on with our investigation or whether things are too dangerous to allow it to carry on and we should be reporting it to the relevant authorities. That goes for investigations into paedophiles and also, for example, for our investigation into care homes recently, where we uncovered abuse of patients in care homes. We would assess that constantly throughout the process to make sure that we-

Chair: Could you make your answers a little briefer, because we are pressed for time. It would be very helpful if you could.

David Jordan: I am just trying to be clear, Chairman.

Q365 Nicola Blackwood: Have you been given legal or police advice as to at what point it becomes dangerous not to inform the police? I wonder what kind of competence-

David Jordan: We take advice from lawyers and from relevant professionals.

Q366 Nicola Blackwood: You have given me two examples of cases where you thought it was appropriate to use these kinds of deception techniques. Are you aware of any examples of media organisations having used private investigators or these kinds of techniques for purposes that you would consider unacceptable?

David Jordan: On the BBC, we don’t do celebrity journalism and intrusions into people’s private lives on the basis of the facts of their private lives.

Nicola Blackwood: I did say media organisations in general.

David Jordan: We are not interested per se in whether somebody is having a relationship with somebody or whether they are not. We might be interested if that displayed some form of hypocrisy, or they were in the business of making policy that was diametrically opposed to their own personal activity or something of that nature, but we wouldn’t be interested per se in people’s private lives and reporting those. As I understand it, a lot of the intrusion into people’s private lives that has taken place in the past in other parts of the media has been for the purpose of gaining information about people’s private lives and relationships.

Q367 Nicola Blackwood: Do you have a specific public interest test that you would apply? Does it have a set of criteria?

David Jordan: We have. We have a public interest test, which is set out in our editorial guidelines at length and which most people think is the most extensive public interest test that exists in the British media. For example, it requires us to demonstrate that we are exposing or detecting crime, exposing significant antisocial behaviour, exposing corruption or injustice, disclosing significant incompetence or negligence, protecting people’s health and safety, preventing people from being misled by some statement or action, disclosing information that would assist people to better comprehend or make decisions on matters of public importance. Those are the things that we set down, but we say that that is not an exclusive definition. There may be other elements to it as well.

Q368 Mark Reckless: Mr Jordan, you said in your letter to the Chair that the BBC had not changed its use of private investigators since the close of the News of the World. Would we be right to assume that is because the internal investigations that you launched after the closure of the News of the World gave the BBC a clean bill of health?

David Jordan: We conducted an audit in which we looked at all the uses that we have made of private investigators. We interrogated 6 million pieces of information over the period that we have already disclosed just to look at what we have done over the period. While we did not come up with anything that we thought could not be justified in the public interest, and we came up with very few instances of intrusions into privacy carried out by private investigators, we did think that we should tighten up the processes by which we dealt with the private investigators on top of the privacy considerations that I have already outlined to the Chairman and to Ms Blackwood.

Q369 Mark Reckless: You said that you used a private investigator on one occasion to discover the details of the owner of a vehicle from a number-plate.

David Jordan: Yes.

Q370 Mark Reckless: How do you imagine the private investigator obtained that information?

David Jordan: At that time, it was perfectly possible to obtain number-plate information without doing anything illegal.

Q371 Mark Reckless: Were a private investigator to obtain such information by, for instance, paying someone at the DVLA, would there be any circumstance in which the BBC would think that could be justified?

David Jordan: I don’t know. I think there is a theoretical possibility it might be if you are investigating major corruption of some sort, but I am not aware of any instance where we have done that. Now we have changed our processes so that any decision to use illegal methods, even by a private investigator or a third party acting on our behalf, would have to be referred back to our editorial processes before it can be agreed. But I think the Director-General has made it clear that it is not impossible that in carrying out serious and substantial investigations, which are the sort that we do, and that are very much in the public interest, there may be times when journalists have to break the law.

Q372 Mark Reckless: On that point, Mr Jordan, you referred to having the most extensive guidance, I think, of any media organisation. You told us that for news expenditure on private investigators it is certainly no more than 0.011%. Do you think there is any danger that the BBC might become overly cautious in its use of private investigators for what may be properly purposed investigative journalism, and may there perhaps be a larger role for the BBC in investigative journalism?

David Jordan: I doubt very much whether there is a larger role, given that we haven’t needed to use them for these purposes very much in the past. Certainly, from where I sit-and most major investigations carried out by the BBC are personally supervised to some extent by me or by my team-I don’t see any signs that the BBC is being stopped from carrying out legitimate investigative inquiries in the public interest by any restriction on our use of private investigators. As I have already said, there is no restriction; there are simply processes in place to make sure we manage it correctly.

Q373 Lorraine Fullbrook: Mr Jordan, I have two supplementaries to some of the answers you gave to Nicola Blackwood before I ask my question. You said that in deciding whether you should inform the authorities, you contact lawyers and other professionals. Who are the other professionals?

David Jordan: For example, in the Panorama that we made not very long ago about the abuses of individuals in a residential facility-

Chair: Sorry, can you speak up, Mr Jordan?

David Jordan: Yes, I am sorry. I thought I was mic’d here. In the Panorama that we carried out recently about the abuse of individuals in a social care home in Bristol, clearly we were monitoring the material that was being collected by the person that we put in undercover on a daily basis, and clearly it was revealing some very disturbing things.

Q374 Lorraine Fullbrook: So journalists are the other professionals that you use as well as lawyers?

David Jordan: No, no. Then we showed that material to care specialists, who then assessed for us whether or not the activity that we dealt with and we were witnessing was so dangerous that we should step in and alert the Care Quality Commission, the police and other authorities immediately, rather than doing what we did and alerting them just before the programme was shown so they could take action.

Q375 Lorraine Fullbrook: Have you had any occasions where you have broadcast what you have been investigating before you have informed the police or other legal authorities?

David Jordan: I can’t think of one off the top of my head, but I am sure that we have, yes. I don’t think we always inform the legal authorities that we are about to disclose law-breaking in advance of disclosing it, no.

Q376 Lorraine Fullbrook: Why?

David Jordan: Well, because our job is not to enforce the law. We are journalists. We carry out investigations into things. We are quite happy then to make available the information that we have found and we will disclose it to people who ask us to disclose it to them under the right circumstances, but we are not policemen. We are not carrying out investigations under law. We are carrying out journalistic inquiries. It is very important we maintain that distinction.

Q377 Lorraine Fullbrook: As a customer of private investigators, are you in favour of a statutory regulatory scheme for private investigators?

David Jordan: I am not sure what that would entail. I think there are two ways of approaching this in all professions. One is to have a statutory scheme of validation and the other one is to have some form of voluntary kitemarks or trade associations that indicate that the person that you are going to deal with is of good repute. I do not think I would have any objection to the latter. I am not sure that it needs a statutory regime in order to arrive at the same outcome, but we don’t have a BBC policy on that matter.

Q378 Lorraine Fullbrook: Should your kitemark-type scheme include a competence assessment as well as regulation of propriety and ethics?

David Jordan: I think most such schemes allow for a system whereby complaints can be entertained, which would demonstrate if the person is behaving incompetently. That is how you discover incompetency in most professions; basically, people are complained against, and then there is an upheld complaint against them and competence is established. If you had a trade association or a trade body-and this is what lawyers and others do-and somebody felt that they had not behaved appropriately or ethically or whatever they are required to do, then a complaint could be made against them, it could be either upheld or not, and if it was upheld, you would know there was, as it were, a black mark against that particular company or those individuals.

Q379 Lorraine Fullbrook: How does the BBC currently assess the private investigators you use?

David Jordan: In the ones that we use for security services, we tender.

Lorraine Fullbrook: No, not the security services.

David Jordan: We tender for those.

Q380 Lorraine Fullbrook: You said at the beginning there was a distinction between security services and private investigators and that the money, the £330,000, was split between the two.

David Jordan: Absolutely.

Q381 Lorraine Fullbrook: How does the BBC assess the competency and accuracy of the information you are receiving from these private investigators?

David Jordan: In the same way as we would assess the competency of freelance journalists-for example by their reputation, by what they had done for other people and for us in the past, and by their general reputation for competence and integrity.

Q382 Dr Huppert: To follow on from what you were saying about how you select the private investigators you use, you are saying that essentially you would wait and see if anybody had complained about them behaving inaccurately, rather than taking a more proactive stance to assess whether the information that they provided to you is legitimate. Is that right?

David Jordan: No, I didn’t say that. I was invited to speculate about a potential regime of governance for private investigators in the UK. I was offered an alternative between-and I was offered the opportunity to endorse a statutory system. I said I could myself conceive of a different system, which would be based on a more voluntary method of regulation and I speculated about it. I didn’t mention anything to do with what the BBC does in relation to that-

Dr Huppert: So how do you select them?

David Jordan: -and I specifically said the BBC doesn’t have a policy on it.

Q383 Dr Huppert: So you do not have any policy at all about how you would check that information was legitimate?

David Jordan: We do not have a policy on the regulation of private investigators.

Q384 Dr Huppert: But the private investigators that you do use-

David Jordan: We use on the basis of reputation and our own assessment of their competence and standing, which we do with freelance journalists and many other people who work-

Q385 Dr Huppert: But the focus is on their competence and their reputation, rather than on assessing whether what they do is strictly legitimate, strictly legal, strictly ethical?

David Jordan: Well, we are in control of what they do, so we assess whether they do things that are strictly legal, strictly ethical and all the rest of it. That is the whole point of the way in which we conduct-

Q386 Dr Huppert: To be clear, it would be entirely up to you if any of them did do things that were not legal, not ethical, not legitimate?

David Jordan: That is why we have changed our process to make absolutely clear that you don’t do things that are outwith our editorial guidelines or are outside the law without our express approval.

Q387 Dr Huppert: You have also said on a number of occasions that to the best of your knowledge the BBC has not used any private investigators in the last year for investigative work as opposed to security. Given that you also say that there is a protocol that says that you have to sign them all off-

David Jordan: I would know.

Q388 Dr Huppert: So when you say "to the best of your knowledge", you mean definitely not?

David Jordan: Well, unless somebody has done something without asking me is what I am getting at, which is always possible-

Dr Huppert: They would not be allowed?

David Jordan: -but I think in the current circumstances, unlikely.

Q389 Chair: Mr Jordan, before I bring in Mr Clappison, can I just clarify, when did this change? You said "from now on". From the beginning of this year you signed off-

David Jordan: We announced that we were bringing this policy change into place, and the guidance that governs it will be published within the next couple of months on our website, but we are already-

Q390 Chair: That is not an answer, Mr Jordan. I do not want to know about an announcement. I want to know when the policy changed. You said they now have to come to you and you sign off the use of a private investigator. When did it change-before they didn’t come to you? It is quite simple.

David Jordan: An assessment of our use of these private investigators was sent to the BBC Trust some time ago and published as part of our evidence to the Leveson inquiry. At the moment it was sent to the BBC Trust, our policy changed.

Chair: So when was that?

David Jordan: Was it in July of last year? [Interruption.]

Chair: I just want a date.

David Jordan: Last year. I can send you a date if you would like.

Chair: I don’t want the process as to what goes on.

David Jordan: I can send you a date.

Chair: From July last year you have changed your process.

David Jordan: Let me write to you on the exact moment.

Chair: You can write to me by all means, but just tell the Committee now. From July last year, the policy changed and the use of private investigators by a journalist has to come to you personally, from July-

David Jordan: I will send you the date, but the import of your remarks is accurate, yes.

Q391 Chair: All right. So you think it is July, but you don’t know?

David Jordan: I will send you the date.

Q392 Mr Clappison: You adverted earlier on to the case of Mr Whittamore, and I think this is perhaps an apt moment to bring him in. You said there was this very strong public interest justification, which there was on the basis of what you have told us and what has been said elsewhere, regarding employing him, but surely something went wrong, didn’t it-that you employed somebody like that, who as we now know was involved in many other activities that subsequently resulted in him being convicted? What went wrong with that employment?

David Jordan: I don’t think we did know anything about Mr Whittamore at the time. This is way, way before the Information Commissioner’s report of 2006 and at the time, Mr Whittamore was just one of a number of individuals and companies offering services in relation to tracking down and gaining information. That was a long, long time ago.

Q393 Mr Clappison: Well, it was in 2001, and he was subsequently convicted, I think, in-

David Jordan: That was 10 years ago.

Mr Clappison: Well, 10 years ago. I am asking you to look back on that and to say what went wrong. Did nothing go wrong?

David Jordan: I don’t think anything specifically went wrong, given what we knew about Mr Whittamore at the time. On the other hand, what I would say to you is that the Information Commissioner found two instances where the BBC was mentioned in Mr Whittamore’s information, but they were not published at the time. When we found about them as a result of an investigation done by our own File on Four programme, we did ask the Information Commissioner for further information about that. One of them was this instance, which happened in 2001, which we thought was thoroughly justified in the public interest. The other appeared to be an attempt to discover for another newspaper what the BBC’s then wine bill was, and it was justifying that. Things don’t change very much, do they, in relation to the BBC and the rest of the media, but there was an attempt to find out what the BBC’s wine bill was and that seemed to be an inquiry that was handled by Mr Whittamore on behalf of another media organisation. So there were two instances. I can’t say that things went-[Interruption.] I don’t think they were able to find out what the bill was, and that may not have been a good thing.

Chair: Order. Mr Jordan, we are very short of time. You could write to us with a copy of the wine bill if you prefer. We don’t wish to know now.

Q394 Alun Michael: I found your response on the question of a statutory regime very odd, because you seem to think that a regulatory system is purely about a complaints process, but the general expectation is that if you regulate a trade or a business, that will guarantee the quality and professionalism of the service given, and that applies whether it is a gas fitter or a solicitor or a journalist. So you need a system for dealing with complaints, yes, but that is not the point. So can we return to this issue of a statutory regulatory regime? Wouldn’t it make it easier for you if you knew that anybody who was possibly going to be brought in by one of your teams was subject to a regime in terms of quality, performance and professionalism?

David Jordan: Yes. I don’t disagree with a word that you have said, and I was trying to keep my remarks succinct in answer to the questions from Ms Fullbrook.

Q395 Alun Michael: Yes, but you focused merely on when things go wrong.

David Jordan: No, but any regulatory regime asks those who are governed by it to sign up to a set of standards; that is what you are saying.

Alun Michael: Yes.

David Jordan: And that would be helpful, but, on the other hand, the only regulatory regime that I am aware of also has mechanisms for assessing when people fall below those standards, whether it is in broadcasting or in medicine or in law.

Q396 Alun Michael: Sorry, with respect, the point is to get the high quality of service and to know what it is that you are buying.

David Jordan: Yes. My point to you is that you don’t guarantee that simply by having a set of standards to which people sign up, because people still manage to fall below those standards even when they have signed up to them. You need a mechanism for assessing both that they sign up to them and that they adhere to them.

Q397 Alun Michael: Quite so. Well, the regulation would deal, first, with individuals and organisations undertaking that activity, but there is the question of drawing the line between procuring something and having things happening in-house. I asked earlier witnesses about where we draw the line if there is a regulatory system to ensure that an exemption for journalistic purposes doesn’t end up with private investigators, or those who are perhaps not legitimately engaged, rebranding themselves as journalists for the purpose of avoiding legal regulation. What is your view on that?

David Jordan: That is why it is important to have processes in place, through your editorial guidelines or through the Ofcom code or whatever it is that you use, to make sure that whoever is working for you and whatever they are called is governed by the same set of editorial principles.

Q398 Alun Michael: Would you therefore say that the requirements that you place on anybody you procure-whether it is an independent journalist or a private investigator and your internal professionals, if I can put it that way-are subject to exactly the same standards?

David Jordan: I would. That is exactly my point.

Q399 Chair: So is it your evidence to the Committee that since you took on the responsibility of signing off the use of private investigators, no private investigators have been employed?

David Jordan: For investigatory purposes.

Q400 Chair: Yes, for investigatory purposes-not the bouncers who go along with your journalists.

David Jordan: Not the bouncers, and not the people who carry out surveillance.

Q401 Chair: I think we know what private investigators are. You have not signed off any?

David Jordan: I haven’t signed off any, no.

Chair: Excellent. It would be very helpful to have a copy of those guidelines-as we have asked the Mail, the Telegraph and The Times to provide-if you could send us one. You do not need to send us a copy of the wine bill of the BBC.

David Jordan: Thank you. We don’t have one these days, unfortunately.

Chair: Thank you very much, Mr Jordan; we are most grateful.

Prepared 25th April 2012