By Brian Cathcart
OVER ONE and a half days in the London High Court, counsel for the publishers of Mirror newspapers took Prince Harry through 30 or so articles from those papers and asked him what grounds he had for believing they were the result of illegal phone hacking.
It was a process designed to cause him discomfort, to trip him up, to expose gaps in his knowledge or understanding, and overall to undermine his case.
Fair enough; that is the barrister’s job. And since no one living has seen a member of the royal family give evidence in court it is no surprise that this particular witness made the front pages of almost all the corporate national papers.
And given too that Harry is the number one hate figure for the papers (and is also suing several others) it is also no surprise that the press made a great deal of his frequent recourse to answers such as ‘I don’t know’ and ‘I don’t remember’.
Missing in almost all the press coverage and commentary, however, is the context, and it is a context of which the judge who was watching, and who will rule in this case, is well aware. Mr Justice Fancourt will not be relying on the Mail or the Sun to inform his judgment.
So what is missing? Here are a few things.
It’s true that Harry often found himself saying he didn’t know or didn’t remember, but that is hardly surprising. Since the issue was what methods had been used to get stories about him he could hardly be expected to know. The people to ask are the people at the Mirror papers who chose the methods.
His ignorance is not, as he pointed out in various ways, an implicit admission that he has no legal case. The articles being discussed here – and the hundred or so others mentioned in his claim – are ones that, he says, bear the hallmarks of illegal news gathering. This being a civil case he does not have to prove anything beyond reasonable doubt; he has to show (among other things) that it is likely on the balance of probabilities.
Nor does the Mirror group come to the trial with clean hands. It has been settling cases brought by phone hacking litigants for years and in 2018 it admitted damningly in court that:
‘a number of its senior employees, including executives, editors and journalists, condoned, encouraged or actively turned a blind eye to the widespread culture of unlawful information-gathering activities at all three of its newspapers for many years and actively sought to conceal its wrongdoing from many victims of intrusion’.
As if that were not bad enough, the Mirror group (now called Reach) lost the only other hacking case to get to court, and lost it badly. Gulati and others v MGN was really about the size of damages, but what was accepted as fact by the judge is noteworthy.
’It is fair and right,’ he declared,’ to conclude that this material supports and demonstrates a widespread culture of phone hacking extending from journalists up to editors.’ He also found ‘a large-scale pattern of the unlawful obtaining of private information’.
Several witnesses at this trial, which has been running for nearly a month, have provided new evidence to support that view.
As Andrew Green KC, counsel for the Mirror papers, challenged Prince Harry to show why he believed particular articles must have been acquired illegally, the prince occasionally referred to this background, and it is easy to see why.
If the Mirror papers had a ‘widespread culture’ and a ‘large-scale pattern’ of illegal information gathering, how likely was it that they were making an exception of the highly newsworthy young man who was then third in line to the throne? In other words, it might be said that it is Green who has the greatest difficulties in this case, not the prince.
And Harry could and did point to other kinds of evidence suggestive of illegal methods – records of payments to private investigators and other freelances known to have used those methods. In some instances these were explicitly linked to articles about Harry or else their timing strongly suggested they were.
Several times Harry noted that stories about him were not attributed to named sources but to ‘pals’ or similarly vague sources and this too may count against the Mirror. How likely is it that a real friend of the prince, somebody he trusted with private information, would have spoken to the Daily Mirror?
Here the question of distress arises. The prince is claiming damages for the distress caused by the Mirror’s methods, and the Mirror appears to be attempting to build a case that if he wasn’t sure he had read a given article at the time it was published it could hardly have caused him distress. But as he kept pointing out – especially in connection with articles about him as a boy, and mentioning his mother – they continue to cause him distress to this day, even as he read them in court.
If it all seems inferential there is nothing odd about that. Judges in civil trials are often asked to draw inferences just as they must weigh the balance of probabilities. Harry may not have shed much light on the case in his time in the witness box, but he was straightforward, he answered questions politely and he did not lose his cool. If MGN and the press imagined he would let his side down they were disappointed.
