In high-profile criminal cases, the concern is often expressed that payments to witnesses by the media risk interfering with the adminis-tration of justice. The Government responded to these concerns by producing a consultation paper in March 2002, proposing to prohibit such payments in criminal cases.
The Press Complaints Commission, among others, argued in response that self-regulation is an effective and far more proportionate way to tackle the problem. The commission pointed to the fact that, drawing on experiences in cases over the years, it had strengthened the provisions of its Code of Practice about payments to witnesses and would continue to do so.
The good news for the PCC and for others who were concerned that making a payment to a witness could become a criminal offence is that the Government seems to have been persuaded, at least for the time being, of the benefits of self-regulation. Following consultation with the Lord Chancellor’s department, the PCC has now amended clause 16 of its Code of Practice:
Payments must not be made to a witness (or someone who may reasonably be expected to be called as a witness) in a criminal trial once proceedings have become “active”. Under the Contempt of Court Act 1981, proceedings become active when an arrest without warrant is made, when a summons to appear is issued or when charges are brought.
Where proceedings are not yet active, but likely and foreseeable, payments will only be legitimate where there is a demonstrable public interest and an overriding need to make or promise payment for this to be done; and all reasonable steps have been taken to ensure no financial dealings influence the evidence.
Under no circumstances will it be permissible to make a payment to a witness conditional on the outcome of a trial as this could damage the credibility of the witness.
The ban continues until the suspect has been convicted or unconditionally freed or proceedings have been otherwise discontinued.
Any payment or offer of payment made to a person later “cited to give evidence in proceedings” must be disclosed to the prosecution and defence. The witness must be advised of this requirement.
Self-regulation, and not legislation, has won the day. The price paid is a tighter and less flexible set of rules, all to tackle a problem which some argue was more illusory than real.
Gisele Salazar is a lawyer at Lovells
By Gisele Salazar