The recent tragic events in Soham, and more particularly, the media’s coverage of them, have once again raised the issue of payments to witnesses in criminal proceedings, writes Diane Hamer.
Several national newspapers offered large rewards to persons coming forward with evidence leading directly to the conviction of those responsible for the abduction of the two Cambridgeshire schoolgirls.
In the Law Update on 31 May, we reported on progress of the Government’s proposals to ban payments to witnesses in criminal cases. The Government’s proposals make it an offence to make or agree to make a payment to a witness in criminal proceedings with a view to publication.
The offence would be one of strict liability – it would be no defence that there was no intention to interfere with the course of justice. Nor would it be a defence if no criminal proceedings were in fact prejudiced. The only get-out would be if the person making the payment, having taken reasonable steps, did not know of the proceedings or did not know that the person concerned was a potential witness. In its response to the proposals, the Press Complaints Commission argued that there was no need for legislation and that the self-regulatory mechanism of the Editors’ Code of Practice, which currently governs payments to witnesses, is working well. Under the code, payments to witnesses or potential witnesses are only to be made where material ought to be published in the public interest and where there is an overriding need to make or promise a payment for this to be done.
Further, editors must ensure that payments do not influence the evidence a witness may give, so payments that are conditional on conviction are out. The fact that a payment has been or is to be made must be disclosed to the prosecution and the defence.
The Government appears to have taken on board the PCC’s responses and has now backed down over its plans. It accepts that it should be possible to prevent the risk posed by "chequebook journalism" by strengthening the press’s self-regulatory regime. The Government makes clear that the relevant self-regulatory regime will have to incorporate the following principles:
There should be an absolute ban on paying potential witnesses for their stories in active criminal proceedings;
Such a ban should not be subject to any argument that payment was in the public interest, and
Payments conditional on convictions would be unacceptable in all circumstances.
The Government would like other media regulators to introduce similar provisions into their codes of practice. To this end, all media regulators have been asked to bring forward detailed proposals to amend their codes to achieve stronger self-regulation by the end of 2002.
If they fail to do so, the Government warns that it remains ready to legislate.
Diane Hamer is a solicitor in the media group of Lovells