The Leveson Inquiry concluded that victims of press abuse need greater protection. Leveson found that the existing Press Complaints Commission – the main regulator of the press in the UK since 1990 – was not fit for purpose. His report recommended creating a new independent body and said that it should take an active role in promoting high standards, including having the power to investigate serious breaches and sanction newspapers.
I agree with the conclusions of the Leveson Inquiry. The old system did not work for ordinary people. The Leveson recommendations should be implemented and it is for the industry to establish a Leveson-compliant mechanism for independent self-regulation. Victims of press abuse deserve nothing less.
However, journalists’ rights also need protecting. The Human Rights Act 1998 recognises and protects freedom of expression and the right to receive and impart information. These rights are an essential foundation of a democratic society and should be afforded considerable weight. And they apply as much to offensive expression as to inoffensive expression. Interference with these rights must be strictly necessary and proportionate. Those who advocate repeal of the Human Rights Act, or withdrawal from the European Convention on Human Rights, should reflect on the positive influence of the European Court of Human Rights on press freedom in the UK, not least its strong protection of journalists’ sources.
One important safeguard for journalists is the requirement in Article 10 of the European Convention on Human Rights that the law governing free speech should be clear and accessible. Here we struggle in this country and I think the protection of journalists is not strong enough. For example, it is a well-established principle that publication in the public interest ought to be protected. But our laws are inconsistent on this issue.
Some offences have an express public interest defence. One example is section 55 of the Data Protection Act 1998, which creates the offence of obtaining, disclosing or procuring personal data. A defence is then set out in section 55(d) as follows, “that in the particular circumstances the obtaining, disclosing or procuring was justified as being in the public interest”. Section 59 contains a similar provision in relation to the offence which it creates.
But other offences do not have an express public interest defence. It was this gap that I attempted to plug when I issued guidelines for prosecutors on assessing the public interest in cases affecting the media in September 2012. Having consulted widely across the media and having had meetings with journalists and editors, I made it clear that, whether or not an express public interest defence exists in law, it was unlikely that cases should be prosecuted where the public interest served by the publication outweighs the overall criminality. The guidelines set out factors likely to be relevant in assessing the public interest including whether the publication was capable of disclosing a criminal offence, a breach of duty or a miscarriage of justice; or, more simply, whether the publication was capable of raising or contributing to an important matter of public debate.
Nearly three years on, we now have the experience of the phone-hacking and Operation Elveden cases to draw on. We should reflect on these cases. The outcomes suggest to methat our law is not clear and accessible enough for journalists or for the public.
Few would argue that there are no circumstances in which a journalist should ever be prosecuted for making payments to public officials, but in my view, as the Court of Appeal decision in Ryan Sabey’s case makes clear, the old common law offence of aiding and abetting misconduct in public office is not well-suited to the task of balancing free speech and criminal conduct.
The time has come for a new law governing this difficult and controversial area. That law needs to be clear and simple. Journalists and editors should not need a lawyer on hand 24/7 when they go about their business. A new law should clearly establish a public interest defence for journalists. It is no longer acceptable to have inconsistency in our law on a question as important as the public interest. Prosecution guidelines on the public interest are important and play their part, but a clear law offering journalists legal protection would be better.
Keir Starmer QC MP