Journalists can break the law – they can hack phones, they can buy drugs and they can bribe public officials, if there is sufficient public interest in doing so.
The decision on that public interest lies with the Crown Prosecution Service in whether or not it brings a prosecution.
Helpfully, director of public prosecutions Keir Starmer has issued a list of guidelines as to how that public interest should be weighed in cases involving the media. The guidelines have immediate affect but are also out to public consultation.
It is probably no coincidence that the move comes on the day that the CPS was asked to look at the biggest mass-prosecution of high-profile media figures in modern history – that of 11 individuals, including four journalists, as a result of the Weeting inquiry into phone-hacking at the News of the World.
Summing up the new guidelines in a nutshell Starmer said:
“Freedom of expression and the public right to know about important matters of public debate are an essential foundation of our society but there are limits for those who cross the line into criminality.
“Journalists, and those who work with them, are not afforded special status under the criminal law, but the public interest served by their actions is a relevant factor in deciding whether they should be prosecuted in an individual case.
“Under the guidelines, prosecutors are required to assess whether the public interest served by the conduct in question outweighs the overall criminality before commencing a prosecution. If so, a prosecution is less likely.”
One imagines that the public interest in revealing that, say, an MP is a drug dealer would outweigh the criminality in a journalist buying the drugs. The same might be true when it comes to bribing a public official, if said bribe was for the purpose of exposing corruption.
Here are the guidelines in some more detail:
Criminal conduct by a journalist which may have a public interest defence could include:
- “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 they are 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
- “Conduct which is capable of disclosing that anything falling within any one of the above is being, or is likely to be, deliberately concealed.”
Looking at the seriousness of the criminality prosecutors will assess:
- “The impact on the victims of the conduct in question, including the consequences for the victims
- “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 repeated 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 in so far 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)
- “Whether the public interest in question could equally well have been served by some lawful means.”
The full guidelines are available here along with details about how to respond to the consultation, which closes on 10 July. The DPP will publish final guidelines later in the year.