In the light of last year’s Chris Jefferies contempt case journalists should be careful about the briefing which is now coming out of News Corp’s Management and Standards Committee about the alleged crimes committed by the arrested Sun journalists.
We are now told that police off the record briefings led journalists to believe that Jefferies was the prime suspect in the Joanna Yeates murder, prompting a flurry of prejudicial reports which in turn led to libel payouts from eight newspapers and contempt convictions against The Sun and the Daily Mirror.
That the Attorney General successfully prosecuted newspapers for creating the risk of prejudicing a trial that never took place shows the extend to which he has toughened up enforcement of the 1981 Contempt of Court Act.
Meanwhile, it’s worth noting Geoffrey Robinson QC’s comment piece on the protection of sources which was bravely run by Sun sister title The Times yesterday.
While this could be evidence of “civil war” at The Times – it could also simply be a paper and editor determined to prove its independence amid the continuing fallout across News International from the hacking scandal and after its own Nightjack fiasco.
By opening up emails, receipts and other documents to police scrutiny – News Corp’s Managenent and Standards Committee must be placing a whole plethora of sources at risk. My understanding is that News Corp aren’t showing police the whole 300 million documents, just the ones that they have flagged up as potentially incriminating.
If journalists cannot promise anonymity to sources and keep that solemn promise, there would be a lot less news and what there was would be less reliable. So, on what basis can a journalist’s employer, without the journalist’s permission (let alone the agreement of the source) squeal on them to the police?
We are told that the committee’s test for identifying sources is “if there is evidence that the source was a public official who may have been paid”. But not all payments to public officials for information are regarded, in practice or in law, as contrary to the 1906 Act, especially now that Article 10 of the Human Rights Act requires the public interest of disclosure to be taken into account.
How else did The Daily Telegraph avoid prosecution for paying a substantial sum for details of MPs’ expenses, most of which would otherwise never have come to public knowledge because they were being redacted prior to compliance with a freedom of information order?
The test case on this matter, brought before the introduction of the Human Rights Act, was against The Observer, which paid a Ministry of Defence employee £10,000 for documents that proved scandalous waste and mismanagement. He told journalists that he had left the MoD, and they were satisfied that he would not have parted with the vital evidence without a payment. Although the 1906 Act has no public interest defence, an Old Bailey jury had no doubt where it lay, especially after I had called the saintly Lord Goodman, a director of The Observer, to explain the principle of the greater good. There was a speedy acquittal.
Another example — investigated by police but never the subject of a prosecution — was the Associated Newspapers payment of £40,000 to David Shayler, whose revelation of how MI5 was keeping files on Cabinet ministers was of great public interest. The money paid to him was carefully calculated to cover travel expenses, legal fees and the like that he would incur after The Mail on Sunday published his revelations.
By revealing journalistic sources, the committee is not so much “draining the swamp”, as one member described it, as throwing the baby out with the bathwater. Simply by inviting police on to its premises, it has relieved them of the need to obtain a court order before seizing “journalistic material”. Sources who, from decent motives, have given journalists newsworthy information, for the divulging of which they might be reprimanded or sacked, must feel very vulnerable.
The News Corp MSC is being headed up by former Telegraph editor Will Lewis who was of course the journalist who made the decision to pay £150,000 for the borrowed MPs’ expenses data to an intermediary who presumably passed that cash on to the real source (who may well have been a state employee).
No-one disputes now that was a brave call, and one that has been vindicated by history. But it is worth noting that The Times and The Sun both passed that story up, partly as a result of legal qualms.
One final point (made yesterday by Roy Greenslade and worth repeating). Will Lewis was a staunch defender of the principle of defending journalists’ sources when he was asked by the Leveson Inquiry if he leaked the full unedited version of the Telegraph’s transcript of a secretly taped Vince Cable to the BBC’s Robert Peston in 2010.
Lewis was then News Corp general manager. The revelation that Business Secretary Cable had told a ‘constituent’ that he had “declared war on Rupert Murdoch” led to him being taken off ruling on the BSkyB deal – seemingly greatly improving News Corp’s chances of success in its bid to buy the broadcaster.
In response to the question of whether he did leak the story, Lewis said: “I can’t assist you with that. As you know core to any journalist is the protection of journalistic sources, my sources or someone elses. Any way that I answer that question would endanger that principle.”