The ancient and obscure law which has become a huge stick to beat journalists with

Reading Trevor Kavanagh’s comment piece today in The Sun made me realise that the police witch hunt of Sun journalists is beginning to show disturbing parallels with  Thames Valley Police’s persecution of Sally Murrer.

Regular readers of Press Gazette will know that Murrer was repeatedly arrested, bugged, spied on and threatened with life imprisonment for – she insisted – doing no more than having off-the-record conversations with police contacts and writing stories.

After 19 months she was eventually cleared in November 2008 after the trial against her and her co-defendants collapsed.

Sun associate editor Trevor Kavanagh said today that many of those arrested and questioned by police have done no more than “act as journalists have acted on all newspapers throughout t the ages, unearthing stories that shape our lives, often obstructed by those who prefer to operate behind closed doors”.

The five Sun staffers arrested on Saturday morning – Geoff Webster, John Kay, John Edwards,  Nick Parker, and John Sturgis – were questioned on suspicion of aiding and abetting misconduct in a public office. The same charge was also cited as the reason for the arrests of Chris Pharo, Fergus Shanahan, Graham Dudman and Mike Sullivan two weeks ago.

It is an offence so obscure that even a professional as experienced as Sun chief reporter Kay will probably have scratched his head when told the law he was being held on suspicion of breaking.

There is not one word about it in It barely warrants a mention in my 2009 edition of journalists’ media law bible McNae’s [see comments below], which runs to 600 pages at last count such is the mountain of legislation British journalists labour under. And there is no advice therein about what warrants  a breach of it.

It’s an ancient offence under common law, rather than legislation, and dates back to 1783.

And it is proving to be a mighty big stick to beat journalists with not least because it carries a maximum possible jail term of life imprisonment.

We obviously don’t know the facts of the allegations against The Sun journalists – but it is very hard for me to believe that seasoned professionals like Dudman, Kay and Sullivan would pay off a policeman or prison officer without a public interest defence.

Big questions remain about whether this charge of aiding and abetting misconduct in a public office can even apply to journalists. The idea behind the charge is surely to police public officials, not journalists.

Murrer found that she was apparently guilty of the charge simply by talking to a police contact and writing stories.

I suppose technically that is a conspiracy to leak out secret information, but we would live in a strange and dark place if that sort of behaviour was made illegal.

Proof  that we are already living in unsettling times is given by the fact that News Corp – previously a staunch defender of press freedom – is providing the ‘evidence’ of the crimes against these journalists without a fight, or any discussion with those under suspicion about whether they had a public interest defence.

Most journalists would, as Mail editor Paul Dacre might put it, die in a ditch to protect the anonymity of their sources. Yet News Corp is apparently serving them up on a plate to the police without any fight.

That said, the fact that staunch Murdoch loyalist Trevor Kavanagh has come out fighting today suggests to me that News Corp’s legal advice is that it has no option but to provide the information asked for – and that bigwigs, unhappy about the situation, have sanctioned this offensive.

As a final point it is worth taking a look at the case of Sun features editor Matt Nixson who was fired by the News Corp Management Standards Committee back in July.

There has been no criminal prosecution against Nixson – though the MSC will have passed on its evidence to the police. Civil papers legal papers have revealed that News Corp is alleging Nixson authorised a payment of £750 to a prison official for details of a story about convicted child-killer Ian Huntley.

Nixson denies bribing anyone. But even if he had, wouldn’t it be worth News Corp at least exploring the possibility of a public interest defence before throwing another long-serving senior journalist to the wolves?

Huntley was found guilty of one of the most notorious murders in history so surely there is public interest, in every sense, in how he is treated in prison?

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