There is “hard evidence” that unlawful information-gathering was “widespread” at Mirror Group Newspapers (MGN), the High Court has heard as the ongoing hacking trial draws to a close.
The court began hearing closing speeches from lawyers on Tuesday in the case being brought by a number of people, including the Duke of Sussex, against the tabloid newspaper publisher over alleged unlawful activity at its titles – the Daily and Sunday Mirror and the Sunday People.
Harry, 38, is suing MGN for damages, claiming journalists at the tabloids were linked to methods including phone hacking, so-called “blagging” or gaining information by deception, and use of private investigators for unlawful activities.
He is one of four “representative claimants”, alongside actor Michael Turner, known professionally as Michael Le Vell, best known for playing Kevin Webster in Coronation Street, actress Nikki Sanderson and comedian Paul Whitehouse’s ex-wife Fiona Wightman.
Their complaints cover a period from as early as 1991 until at least 2011, the court has heard.
The findings made by judge Mr Justice Fancourt in relation to those four will be used to determine the outcome of dozens of claims brought by others against MGN – including actor Ricky Tomlinson, the estate of the late singer George Michael, ex-footballer and television presenter Ian Wright and Girls Aloud singer Cheryl.
MGN is largely contesting the claims and denies that any of the articles complained of resulted from phone hacking, while contending that the vast majority did not arise from any other unlawful activity.
The publisher has made a limited number of admissions of unlawful activity in relation to the duke, Ms Sanderson and Ms Wightman, for which the publisher has apologised and accepted they will be entitled to some damages, but denies the majority of their claims and Mr Turner’s entire case.
David Sherborne, representing Harry and the other claimants, told the court on Tuesday that there was “enough hard evidence” to establish that unlawful activity was “widespread” at MGN.
He said unlawful methods of obtaining information were “the stock in trade at these newspapers across the entire period”, describing them as the “modus operandi” of journalists.
“These methods were the tried and tested tools of the tabloid trade,” Mr Sherborne told the court.
The barrister claimed MGN’s board and legal department, “the very people whose duty it was to run this public company”, were “well aware” of unlawful information gathering being widespread.
Mr Sherborne said the judge could draw “adverse” inferences from MGN’s “extraordinary decision” not to call “key witnesses” during the trial.
He said the Duke of Sussex, Ms Sanderson, Mr Turner and Ms Wightman gave evidence in court despite “the obvious strain and distress it caused them having to relive difficult periods in their lives”.
“What was equally significant was those who were not coming to give evidence,” Mr Sherborne continued.
In written arguments, he said: “There was a distinct lack of evidence called by MGN in the individual claims as to the provenance of the articles complained of and other (unlawful information-gathering) not related to articles.”
Mr Sherborne told the court MGN had called “just three journalists” during a six-week trial, over allegations spanning 20 years and in relation to 100 different articles.
He said this was “not so much Hamlet without the Prince of Denmark, it’s Hamlet without the entire royal court”.
The barrister said in written arguments there were “notable absentees” in all four claims and referred to a list of more than 20 people who have not given evidence, which was read by the judge last week and included former MGN editors Piers Morgan and Neil Wallis.
Mr Sherborne told the court the publisher had provided “no positive explanation at all” over why certain witnesses were not called, describing it as a “gaping hole in their case”.
He contested MGN’s position that it had been “proportionate” in its approach to evidence and that ex-Mirror editor Mr Morgan’s absence was “avoiding a sideshow that would distract from other issues in the case”.
“If anything the sideshow has been created by him,” Mr Sherborne said of Mr Morgan, as well as in relation to comments made be Mr Wallis, former editor of The People, adding: “By making comments outside court which they were not prepared to have tested inside court”.
Mr Sherborne said MGN’s position “is utterly untenable”, adding that the facts of the case “undermine” any of the publisher’s “excuses” over why certain journalists were not called as witnesses.
The barrister said there were “clear allegations” in relation to Mr Morgan in the case for two or three years, but he had “chosen to confine his comments to outside this court room”.
In written arguments, Mr Sherborne said: “Instead of calling these crucial witnesses, MGN’s approach was effectively to sit back and force the claimants to prove their cases based on the far from complete disclosure which they have obtained through repeated – resisted – applications for disclosure.”
He said that, without calling any of the journalists involved in preparing most of the stories, the court must effectively reach the conclusion it was obtained through unlawful means, adding: “In short, without live evidence there is nothing to negate a finding of unlawful activity.”
The barrister added: “For the court to adopt any approach other than that set out above would be to reward MGN’s failure to call crucial witnesses, by placing it in a more advantageous position than the claimants, who were deprived of the right of questioning journalists as to articles and the documents on which MGN relies.
“While the claimants – who on any view are not even accused of unlawful or dishonest conduct – actually attended court and subjected themselves to very challenging, distressing and on some occasions aggravating cross-examination.”
He said this included the “provocative suggestion that the Duke of Sussex ‘wanted to have been phone hacked’ as well as “repeated gratuitous references to modelling photographs of Ms Sanderson in lingerie”.
Mr Sherborne said it also included “extremely intrusive questioning” of Ms Wightman about the period of her cancer treatment and breakdown of her marriage to Mr Whitehouse and the “equally intrusive and speculative questioning of Mr Turner over his arrest for a serious sexual offence and his attempts to cope with the consequences of a traumatic period in his life”.
He added: “The impact of this cross-examination on each of the claimants was visible while it happened.”
Mr Sherborne told the court that MGN spent “millions” on private investigators in total throughout the period complained of and the “financial management” of MGN were “well aware” that the information was being “obtained illicitly”.
He also said the findings made in a 2015 ruling on the only other trial on unlawful information gathering at MGN were a “solid basis” on which the judge could base his own conclusions.
The trial is due to conclude on Friday, following further submissions from Mr Sherborne, with closing arguments from Mr Green on behalf of MGN expected to begin on Wednesday.
Mr Justice Fancourt will deliver his ruling at a later date.
