The trials and tribulations of Harry - thread 2

[TrashyPanda]

Continuation of

https://www.mumsnet.com/talk/the_royal_family/4812092-ph-lost-bid-to-challenge-for-right-to-pay-home-office-for-his-security?page=10&reply=126688485

Gilmorehill · Today 07:46

I think it’s highly likely H was hacked just because it’s proven his brother was. However I’m astonished at the lack of concrete evidence which has been presented to prove it in court.
If you were the judge, that would be enough to rule in his favour. Was it more likely than not that he was hacked? Yes.

This is totally wrong. The question is not "was his voicemail ever hacked". The question is was it hacked in respect of the specific articles identified by these specific mirror journalists. It is that that is in issue on the balance of probabilities

Just because his brother was hacked doesn't prove a thing at all.

Don't forget that in order to hack a voicemail you need to know a person's mobile phone number. There was a lot of admitted hacking by News of The World. It doesn't follow that even if he was hacked it was done by these journalists in respect of these articles.

In some of these cases they can show on the balance of probabilities that information came from hacking, but you need the evidence to stack it up.

For example, in one case a person was left a voicemail from his accountant detailing some financial information relating to his business and a future business plan. This latter appeared in print. The person gave a statement that they hadn't discussed this information with anyone. The accountant was a sole trader and worked alone. His statement was that no one else had access to that information and he was under a professional duty of confidence. In that situation, a case would be likely to settle, because although you could have a go testing it under cross-examination, if the claimant and his accountant are believed, the only source could be the voicemail. That is one way that you can prove something on the balance of probabilities without any technical data evidence.

What was the question where she said she couldn’t remember, or one of them

And you'd been given many months (years?) to try and recollect events before giving evidence.

Read the Sky News feed.

The updates at 10.56, 11.05, 11.18, 11.27, 11.43, 11.50 all feature her saying she doesn’t remember in answer to a barrister’s question.

In the 12.20 update, she seems to have switched to ‘I don’t know’

The question is not "was his voicemail ever hacked". The question is was it hacked in respect of the specific articles identified by these specific mirror journalists. It is that that is in issue on the balance of probabilities

Not quite. There was a hearing in December where the judge struck out the claims for publication of articles using private information as they were brought too late. What the claimants are left with is a claim for the underlying actual gathering of private information - so whether they were phone hacked or otherwise subject to unlawful gathering by MGN, regardless of what then happened to any information that was gathered. The specific articles are now just evidence to prove that the gathering happened ("I had mysterious missed calls from an MGN number and the next day my information was published in this article"), rather than claims in their own rights.

Re: "I can't remember" - I think that's why there is usually a time-limit on cases like this, i.e. to make 'not remembering' seem like a poor response from the witness.

I don't think 'not remembering' in this case is necessarily nefarious.

Journalists must be writing numerous articles every day. Assuming just 2 articles a day, 5 days a week for 20 years, minus weekends and 30 days annual leave - that’s over 9000 articles at a very conservative minimum.

If I equate that number to emails I send at work, there would be absolutely no way I could recall why more than 20 years ago I used certain phrases, decided to put text in quotes or not or remember where any source got their information to give to me.

I do believe Harry, along with many others, was 'hacked'. I don't think anything presented in court so far has come anywhere near showing evidence of hacking taking place.

It's like many behaviours of the time, these methods were widespread and not challenged. From memory I don’t believe telephone hacking (listening to someone else’s voicemails) was a crime until 2000. The practice even made it into the first episode of Jonathan Creek on the BBC! (Maddie Magellan was explaining to her then-boyfriend how easy it was to access BT Response anwerphones remotely, as they all had 2-digit retrieval codes).

I'd love to see the press be held accountable for committing illegal acts. Alas I don't think that will happen as a result of this case.

To another article she replied: "I can't tell you much, I wish I could remember."

https://news.sky.com/story/prince-harry-trial-latest-updates-high-court-princess-diana-piers-morgan-mirror-william-12881275

Problem is if you don't remember you just don't and there is a real risk that the brain will fill in gaps with made up stuff - it's why eye witness are so unreliable.

I'm not sure I'd want to be in court answering I don't remember - because an everyday work thing 20 years ago - because you do feel that it make you look bad - like you should remember that you should be able to defend yourself. Though I suppose she may be a lot more use to possibility of court due to her profession than I am.

The judgment will look something like this: https://www.bailii.org/ew/cases/EWHC/Ch/2015/1482.html

General stuff that applies to all of them, then each claimant's case considered separately. The judge will take into account the generic case for each one (ie, that there is a lot of evidence of a general landscape of phone hacking), and each of the claimants will form part of that generic case for the others, but there won't be a direct link between one claimant in this case being successful and another one also being successful on account of them being tried together.

Once again many thanks for the clarifications, @Dolma - this really isn't easy for those not of a legal mind, and it does help to have some guidance

Thank you Dolma.

I've been really confused how it was set up and how these 4 claimants and the waiting claims all tied together and none of the media articles seem to explain it.

Thanks for this, very detailed. Talks of bundles and barristers getting testy takes me back to jury service

Her wrap up comments seem plausible at this point but I guess we’ll see what the judge thinks at the end with all the evidence

Just one more question if I may, @Dolma ...

Would I then be correct in believing that, while a "general landscape of phone hacking", might be proved, it's still the case that each claimant has to prove it's been done to them in order to win their individual case? Or would that same landscape be enough to tip the balance of probability into a win for all the claimants whether they could prove they'd been individually targeted or not?

Forgive me for the layperson's terminology by the way, but I don't know any other!!

After 20 years 'I don't remember' doesn't seem especially suspicious.

And given the potential consequences it would be dangerous to answer with a hazy recollection that might turn out to be wrong, or have been mixed up with another case/day/situation.

Don't lawyers prepare clients by telling them NOT to guess, and to be willing to say if they don't remember?

Paul Burrell was interviewed by GB News on Tuesday.

He said he'd been defamed by Harry; paragraph 99 of Harry’s witness statement states as fact that PB had sold possessions belonging to Diana.

If I recall correctly, the police investigation at the time concluded that PB had not sold anything belonging to Diana, he was never charged for this. The case against him was that he removed items from Kensington Palace without telling anyone/asking for permission.

PB said he wanted an apology from Harry for defaming him. He also said that he'd not decided whether to take it any further.

@Puzzledandpissedoff

Would I then be correct in believing that, while a "general landscape of phone hacking", might be proved, it's still the case that each claimant has to prove it's been done to them in order to win their individual case?

Yes and by the Mirror journalists in issue in the case in respect of the articles complained of by each individual claimant. If you are interested and can be bothered, I would read the judgment in Gulati that @dolma linked above. The defendant was MGN (predecessor company of Mirror Group) ie. the Mirror newspaper.

The 'general landscape' as you put it of phone hacking is well established. The Mirror have admitted as much. See paragraphs 19 - 26 of that Judgment eg:

...the Defences in the actions which admitted, in general terms, that the defendant was responsible for the unlawful interception of voicemails and the blagging of call data. It admitted that the articles then complained of were likely to have been the product, at least in part, of those unlawful activities, but went on to say that the defendant did not know, and could not establish, the extent of the unlawful activities.

These admissions in this case mostly related to a particular journalist.

So to take Harry's case, the Judge would need to be satisfied on the balance of probalities:

1. in respect of Article 1 that the journalist who wrote it accessed his vm unlawfully or otherwised obtained information in that way that was in the article.
2. in respect of Article 2 etc.

so in theory it would be possible to win in respect of some articles but not others.

I think in Harry's case they have admitted one instance but dispute the others.

If I recall correctly, the police investigation at the time concluded that PB had not sold anything belonging to Diana, he was never charged for this

I honestly don't recall this bit either way, but given what's now known about Charles flogging gifts via Fawcett I'm not sure it would have been wise to charge him with this anyway

As things turned out he was kept out of the witness box at all costs, but god alone knows what he might have said - not least about all the "Diana tapes" which mysteriously went missing and which many believe are in his possession

On a personal level I can't stand the man, but if it's true that he holds considerable dirt on the family and has therefore made himself untouchable, it's no wonder he has that awful smirk on his face much of the time

Many thanks to you too, @WigsNGowns - I really appreciate the explantion

And yes, I'm already ploughing through Dolma's link, even though some of the legalese is frying my brain!!

A lot of hot air, he can’t take it any further. Statements made in court proceedings are privileged i.e you can’t be sued for what you say.

Just been listening to BlackBeltBarrister and he very interestingly says, the bar is 'balance of probabilities' in this civil case, but because it is not contract law and involves real alleged criminal behaviour, the bar is set higher.

I don't fully understand it, but am guessing that if he finds for the Claimant he is effectively, not only saying hacking took place, but he is saying the newspapers employed criminals and indulged in 'criminal' behaviour?

I think in Harry's case they have admitted one instance but dispute the others.

They've admitted that they paid £75 to someone at Chinawhite to find out about Harry's night out there 😂 An admission unlikely to trigger Leveson 2. All hacking of Harry's phone has been denied.

...and that would,be quite a leap for a judge to take, without really convincing evidence?

Paragraphs 308-3011 are quite a nice example of what the judge will accept here. Pretty trivial private information in the article (planned wedding venue closed, bride worried about mud). No call data to support hacking. But the judge said:

"In the circumstances, bearing in mind Mr Ashworth’s evidence about the secrecy of the event (which I accept), bearing in mind that he and Ms Shaw certainly were subsequently hacked, bearing in mind the press interest in the couple, and bearing in mind Mr Ashworth’s evidence that the remark about wellingtons was the sort of thing that might well have been left in a voicemail message, I find that this article was the result of hacking."

Just been listening to BlackBeltBarrister and he very interestingly says, the bar is 'balance of probabilities' in this civil case, but because it is not contract law and involves real alleged criminal behaviour, the bar is set higher.

I don't think this is right. This is tortious case about invasion of privacy and breach of confidence.

There are two standards of proof:
in criminal cases "beyond reasonable doubt" = sure
in civil cases "on the balance of probabilities" = 51% in effect, likely.

Historically there have been civil cases where the Court has referred to 'a sliding scale' of the burdern of proof - if the allegation is more serious, then stronger evidence was required. It comes from the basic idea that the more serious an allegation, the less likely it is - so the probability that someone committed murder is unlikely because it is so serious and people generally don't go around murdering people.

But recent cases have suggested otherwise -see for example:
https://www.bailii.org/ew/cases/EWHC/Admin/2021/2237.html (re medical fitness to practice)

https://bto.co.uk/blog/no-higher-threshold-required-to-prove-serious-allegations-before-the-mpts.aspx

Whatever the law says, in reality, you are going to have to produce some good evidence for very serious allegations (like fraud or murder) because a judge isn't going to want to find someone guilty of those in effect on a civil standard because that person will have to live with that judgment for ever.

I don't think that phone hacking given historic admissions is a 'sliding scale' case. I think its a balance of probabilites case.

@Dolma

An admission unlikely to trigger Leveson 2.

LOL. That's funny because I kept thinking so much of Harry's witness statement and what he was reported as saying could just have been replaced with

"I want this trial to Leveson 2. If it isn't, I want it to trigger Leveson 2"

*I want this trial to BE Leveson 2