At a time that has seen the release of two of Britain’s best-known prisoners, the contrasting figures of Jeffrey Archer and Norfolk farmer Tony Martin, it is perhaps not surprising that the issue of payments made by newspapers for interviews with criminals or their associates is again in the spotlight.
The Guardian has recently found itself on the receiving end of a successful complaint regarding the payment it made for an interview with a fellow inmate of Archer, while the Daily Mirror is bracing itself for a fight with the Press Complaints Commission over the six-figure sum that it has paid for its exclusive interview with Martin.
The section of the Editors’ Code of Practice which is the focus of these complaints, Clause 17, prohibits all payments made by newspapers either to convicted or confessed criminals or to their associates except where the following two part test is satisfied. The article to which such a payment gives rise must be in the public interest, and payment to the criminal or associate necessary.
The code provides a non-exhaustive list of three factors to be taken into account when considering the question of whether such an article is in the public interest: whether a crime is detected or exposed by the article, whether it protects public health and safety and whether it prevents the public from being misled by another statement or article. The burden of proof is placed squarely on the editor seeking to invoke the public interest justification.
Interestingly, the recent adjudication made in relation to The Guardian’s payment to John Williams for his comments on experiencing prison life in the company of Archer was prefaced by an acknowledgement that the current guidelines regarding payments to criminals by no means constituted a blanket ban on such payments; “the commission agreed with the newspaper that the code is not intended to prevent all people who have been convicted of a crime from being paid by newspapers in all circumstances”.
The PCC went further and expressed an acceptance in principle that reports by prisoners or former prisoners on prison conditions could be justifiable under the current guidelines. The PCC has since re-inforced this stance by the decision to abandon its complaint against The Guardian regarding the regular column on prison life the newspaper publishes by prisoner Erwin James, for which the author receives a fee.
Notwithstanding the above, the tests remain stringent, and in the case of the Williams article, the PCC was satisfied on neither point. The “revelations” of the article, essentially allegations of Archer receiving preferential treatment, were held to be insufficiently substantial or new to confer any significant public interest benefit on the piece. On the question of whether payment was necessary, the PCC rejected this on the grounds that a number of newspapers had run stories alleging preferential treatment received by Archer. These pieces had not involved payments to fellow inmates.
One of the PCC decisions referred to in the Archer adjudication was the 1999 decision involving Jonathan Aitken. This upheld a complaint made against The Daily Telegraph for a payment made to daughter Victoria Aitken for an article headed “My father is paying too heavy a price”.
The PCC considered the two questions of public interest and necessity, and rejected The Daily Telegraph’s submissions on both. It held that the article, an account of the effect of a criminal conviction on a family’s circumstances, was insufficiently distinctive to be of any public interest benefit, and that there was no evidence to suggest that payment was necessary, given that another newspaper had aired similar views of Miss Aitken without paying her a fee.
This is not of course to say that the tests are impossible to satisfy. The distinction the PCC appears to be drawing is between articles with a serious news purpose, such as the Erwin James column, and entertainment pieces aimed at cashing in on a prisoner’s “celebrity”.
Undoubtedly the current regime has its critics. Five broadsheet editors recently wrote to the PCC complaining that Clause 17 has become unworkable, and the decisions made in relation to it by the PCC too inconsistent to offer editors adequate guidance. Threats of legislation have once more been emanating from the Home Office.
There is clearly much at stake as the PCC launches its enquiry into the Daily Mirror’s “World Exclusive” on Martin.
Adam Carling is a trainee solicitor with the media & entertainment group at Charles Russell
by Adam Carling