As is being widely reported:
The Duke of Sussex and six others have lost their High Court privacy case against the publisher of the Daily Mail and Mail on Sunday.
Judge Mr Justice Nicklin said the claimants had failed to prove the allegations of unlawful information gathering.
…Mr Justice Nicklin refused to make a finding as to whether what became known as unlawful information gathering had become “widespread and habitual” at Associated Newspapers and instead decided the merits of each individual claim.
He said he accepted the denials of Associated Newspaper journalists “who gave lawful explanations for the sourcing of the disputed articles and incidents”.
Mr Justice Nicklin’s judgment can be seen here. He took account of “propensity evidence”, but a strong theme of his reasoning was that propensity is not proof when it comes to specific instances of unlawful information gathering (UIG) alleged by the claimants. And whereas the 2023 case brought by Prince Harry and others against the publishers of the Mirror and Sunday Mirror included a “generic claim” about “the extent of phone hacking and other unlawful activity by MGN”, Mr Justice Nicklin guarded against the Associated Newspapers case from becoming what he regarded to be “a public inquiry into the conduct of Associated generally”.
Mr Justice Nicklin does, though, refer back to activities at MGN. Thus we read in relation to one of the Associated journalists:
On the evidence, I am satisfied that Mr Buckwell has a demonstrated propensity, during his period at the Sunday Mirror, to use (and to have commissioned) certain forms of UIG, including the obtaining of private medical information and the procurement of telephone-related information of a kind not readily explicable as lawful “contact finding”. The documentary material put to him in cross-examination included a Christine Hart invoice recording, against his name, “Full M” enquiries in relation to Timothy Taylor and Des Lynam, and surviving Jonathan Stafford schedules containing entries such as “Tele item”, “Meter + telephone itemisation” and “airline checks”. Although Mr Buckwell sought to distance himself from the more obviously intrusive character of that material – saying he did not recall instructing such tasks, that his name might appear because he was bylined on an article, and that he believed that he was using legitimate “tools” available in the newsroom – his evidence did not provide a convincing lawful account for why such enquiries were being commissioned repeatedly in his name, still less why items such as itemised billing data and airline checks were being sought. I find that the contemporary documentary material provides a more reliable insight into Mr Buckwell’s activities.
However, the judge also writes in an earlier paragraph:
Although I have found that Mr Buckwell had a demonstrated propensity, during his period at the Sunday Mirror, to use certain forms of UIG, that cannot of itself prove wrongdoing on another occasion. At most, such evidence may provide some support for an inference where other evidence, relating to the particular Article, points in the same direction. It does not supply missing proof and cannot justify inference-upon-inference reasoning.
The 2023 MGN judgment notes other MGN journalists linked to invoices for “Full Med” and “Full M” medical intrusion who later went on to work for Associated – although the MGN judge, Mr Justice Fancourt, gave the point only passing attention and made no finding in relation to it, and the journalists concerned were not part of the more narrowly defined Associated case.
The media are currently focused on other aspects of the case, but it seems to me that if a newpaper employs a journalist who apparently met the benchmark for demonstrating a “propensity” for unlawful information gathering at a previous paper then the person in charge can’t complain too much if people take that into account when trying to work out how intrusive stories about the private lives of celebrities were sourced – or if people draw broader inferences than would be appropriate for a High Court judge. These are points on which Paul Dacre ought perhaps to be pressed.
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