Director of Public Prosecutions Kier Starmer has denied that the dozens of British journalists currently facing the prospect of criminal charges are victims of a politically-motivated witch-hunt. And, speaking exclusively to Press Gazette, he has also revealed the considerations he will weigh in deciding whether the journalist, or journalists, who hacked Milly Dowler's phone could possibly escape prosecution on public interest grounds.
More than one year on from the first phone-hacking arrests, some 50 individuals have now been bailed by police investigating computer and phone hacking and corruption.
In April, the CPS released a set of guidelines detailing how it plans to weigh the public interest in dealing with this unprecedented wave of police actions against journalists.
The guidelines are in place but Starmer spoke to Press Gazette to encourage more feedback on a public consultation over them which closes on 10 July.
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LAst month, the CPS revealed that a prosecution of Guardian journalist Amelia Hill for breaching the Data Protection Act and publishing stories leaked from inside the phone-hacking inquiry would not be in the public interest.
It also revealed that Rebekah Brooks, her husband Charlie and four others would face trial for perverting the course of justice.
Charlie Brooks said that with 172 police officers on hacking-related inquiries there was pressure to bring 'weak prosecutions'and that his wife was the subject of a 'witch hunt".
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But Starmer told Press Gazette: 'We are an independent organisation, I am an independent post holder and we will look at these cases independently and objectively with defined guidelines so that people will be assured about the approach that we will take."
Press Gazette spoke to Starmer the day before he went public with the news Brooks was being prosecuted.
Explaining why the new guidelines have been put out, he said: 'The plain fact of the matter is we've rarely had to consider cases against journalists in the last five years or more. We now face a situation where we have 47 people on bail [speaking before the most recent arrests] there are likely to be more and amongst them are many journalists.
'As an organisation,we face an unprecedented situation: are we are going to have to pick our way through all of these cases and decide whether a prosecution is necessarily in the public interest. I'd much rather do that with a clear set of public facing guidelines…
'These are important to us but these are important to your readers – please respond."
The guidelines balance the public interest served by the journalist or individual versus the seriousness of their criminal actions and the impact on the victim.
While some offences, like those under the bribery act, have no public interest defence – the CPS has the power to decide that any prosecution is not in the public interest.
So when is it ok for journalists to bribe public officials? Starmer answers by way of an example: 'The case in which The Sun arranged for payment of £500 to a court clerk to make a speeding offence go away was never formerly considered by us because The Sun and the journalist involved were never investigated. But had they been, I think it most unlikely that we'd have prosecuted The Sun or any Sun journalist for exposing a serious offence of corruption."
More than a dozen Sun journalists are currently on police bail after being arrested as part of the Operation Elveden Inquiry into illegal payments. The most recent was Whitehall editor Clodagh Hartley last week.
Starmer said among the factors he will consider will be whether he is looking at a one-off action 'or someone whose business practice is to routinely breach the law. Journalists will recognise the two quite quickly".
But frustratingly for journalists keen to know exactly where the lines lies, Starmer has to remain vague in his guidance: 'The law prohibits us from giving an indication in advance of what decision we would make on any given set of facts."
Is it fair that so many journalists have been on police bail for such a long-time – with the devastating effects on personal professional life that entails?
'In a sense, that's a question for the police not for me. There is a general appreciation that there is a huge amount of material to review running into hundreds of thousands of emails and documents. So there is a lot to do…But I take the point and both myself and the police are anxious to get through this as quickly as we can, having properly reviewed the material."
Do journalists have any special status in the eyes of the law?
'There is strong case law on the importance of freedom of expression and the role of the press acting as watchdog. It doesn't mean that, if you are a journalist, you've got any kind of immunity. It does mean if you are acting in the public interest in pursuit of information then it will be relevant to look at what you were trying to achieve."
The CPS guidelines say that conduct which is capable of disclosing that a criminal offence has been committed could have a public interest justification.
Looking at the hacking of Milly Dowler's phone, isn't it possible to argue that relatively minor criminal act was justified in the pursuit of the abductor (or as we later found out murderer) of a schoolgirl?
'That's an important point and I'm not going to answer the specific question. What we try to do in paragraph 31 [of the guidance] is base the assessment of public interest on whether conduct is capable of doing x or y because what we recognise is that, in many instances, the journalist may not know what the true public interest is in the story they are pursuing until he end of the exercise.
'So we've used the term capable and that is something we invite responses on from the press and from journalists."
DPP Keir Starmer has invited Press Gazette readers to quiz him about the draft public interest prosecution guidelines. Email pged@pressgazette.co.uk, or write in the comments box below this article, and we will submit your questions to him and publish the responses.
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