Insiders' briefing: The CPS rules on prosecuting journalists

An unprecedented number of UK journalists are currently facing the threat of prosecution after police investigations into phone and computer hacking and payments to public officials.

Amid this backdrop the Crown Prosecution Service has issued new guidance on when prosecutions of journalists can be dropped in the public interest.

Here are the key extracts from the new guidelines:

“Freedom of expression and the right to receive and impart information are recognised and protected both under the common law and by the Human Rights Act 1998.

“However, freedom of expression and the right to receive and impart information are not absolute rights. They may be restricted but only where a restriction can be shown to be both: necessary and proportionate.

“The public interest served by freedom of expression and the right to receive and impart information has never been defined in law. However, examples of conduct which is capable of serving the public interest include the following:

  • Conduct which is capable of disclosing that a criminal offence has been committed, is being committed, or is likely to be committed.
  • Conduct which is capable of disclosing that a person has failed, is failing, or is likely to fail to comply with any legal obligation to which s/he is subject.
  • Conduct which is capable of disclosing that a miscarriage of justice has occurred, is occurring or is likely to occur.
  • Conduct which is capable of raising or contributing to an important matter of public debate. There is no exhaustive definition of an important matter of public debate, but examples include public debate about serious impropriety, significant unethical conduct and significant incompetence, which affects the public.
  • Conduct which is capable of disclosing that anything falling within any one of the above is being, or is likely to be, concealed.

“The list set out above is not intended to be exhaustive and other factors may be relevant in a particular case. Equally, the absence of any of the public interest factors set out above does not necessarily mean that no public interest is served by the conduct in question. Each case must be considered on its facts and merits.

“When assessing the overall criminality, prosecutors should focus on the conduct in question, the extent of the wrong-doing and the harm caused. Examples of factors likely to be relevant to the assessment include:

  • The impact on the victim(s) of the conduct in question, including the consequences for the victim(s).
  • Whether the victim was under 18 or in a vulnerable position.
  • The overall loss and damage caused by the conduct in question.
  • Whether the conduct was part of a repeated or routine pattern of behaviour or likely to continue.
  • Whether there was any element of corruption in the conduct in question.
  • Whether the conduct in question included the use of threats, harassment or intimidation.
  • The impact on any course of justice, for example whether a criminal investigation or proceedings may have been put in jeopardy.
  • The motivation of the suspect insofar as it can be ascertained (examples might range from malice or financial gain at one extreme to a belief that the conduct would be in the public interest at the other, taking into account the information available to the suspect at the time).
  •  Whether the public interest in question could equally well have been served by some lawful means having regard to circumstances in the particular case.

Click here to read the full CPS guidelines.

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