Director of Public Prosecutions Keir Starmer has said that journalists “will rub up against the criminal law” and said that it would be “very unhealthy if you had a situation where a journalist felt that they needed to their lawyer before they pursued any lead or asked any question".
In an interview with The Guardian, Starmer reiterated guidelines which are intended to protect journalists from being prosecuted in cases where they have broken the law, but done so in the public interest.
These were first issued in September 2012 and suggest that acting in the public interest could include exposing crime or contributing to an important area public debate.
He told The Guardian: “We've got to recognise that in the course of journalism, journalists will rub up against the criminal law and that is why, in our guidelines, we took the approach that we would assess where there was evidence of a criminal offence, whether the public interest in what the journalist was trying to achieve outweighed the overall criminality."
There is no public interest defence for example under the Bribery Act 2010. But as Starmer makes clear, this does not mean the CPS could not rule that a prosecution would not be in the public interest.
The first prosecution under the Bribery Act was of a corrupt court official who was exposed by The Sun for taking bribes. Ironically, that story could itself have prompted a Bribery Act prosecution because it resulted from a payment – but in the case police decide not to take the matter further.
Although Starmer says it would be unhealthy for journalists to feel they need to constantly consult lawyers, it would be a very foolhardy journalist indeed who did not seek legal advice about certain types of stories given there have been 61 arrests of UK journalists in the last two years.
Certainly, any story now which involves a payment should be looked at closely to see if it falls foul of the Bribery Act or the common law offence of aiding and abetting misconduct in a public office.
And as the cases of Sun journalists Chri Pollard and Rhodri Philips illustrate, if you have dealt with information which is taken from a computer without permission there is a high chance that you could face a 6am raid on your home, arrest and a long period on police bail at least.
Last week Tory MP Julian Smith called for The Guardian to be prosecuted under the Terrorism Act 2000. He said that section 58a makes it an offence to release information on the security services which could be of use to terrorists.
Weighing up the public interest in prosecution, the CPS looks at the severity of the crime committedand the severity of the offence journalists were seeking to expose.
In June 2012, Press Gazette asked Starmer whether the relatively minor criminality of listening to a mobile phone voicemail could be justified if the objective was to find a missing schoolgirl.
He said: "We recognise is that, in many instances, the journalist may not know what the true public interest is in the story they are pursuing until he end of the exercise."