Articles Criminal Defence 18th Dec 2015

Leveson’s illiberal legacy?

Last month marked the last of the unsuccessful prosecutions of journalists (Messrs Pharo and Pyatt) under Elveden, the ill fated police operation into cash payments made to public officials for stories. Such relief for our free and independent press will, however, be short-lived.

First, as referenced in our article Operation Elveden: A sting in the tail? (Newsletter June 2015) individual journalists are vulnerable to prosecution for making cash payments if they are capable of being characterised as corrupt under the Bribery Act 2010 or Criminal Justice and Courts Act 2015. Secondly, and more significantly for the Industry, the introduction of new legislation under which judges will have the power to impose exemplary damages in libel and privacy cases on publishers who are not members of a Royal Charter backed press regulator poses a serious threat to the existence of newspapers. According to a Press Campaign recently launched, the proposed UK regulatory framework will become “probably the harshest press regime anywhere in the free world” and be the product of “Leveson’s toxic legacy.

The Leveson Inquiry of 2012 was set up to examine the culture, practices, and ethics of the press in the wake of the phone-hacking scandal. It recommended regulation under a Royal Charter. In the immediate aftermath of the Inquiry’s publication, successful prosecutions for phone hacking occurred. However, the prosecuting authorities went further and sought to rein in the ill-concealed industry practice of newspapers routinely paying public officials for stories. Over a period of 3 years, 29 cases were brought against journalists resulting in only one reporter being convicted, a verdict currently subject to appeal. This prosecutorial approach has attracted widespread criticism and been variously described as a witch-hunt against journalists and an attack on the freedom of the press. The trust between police and press has broken down and the reciprocal arrangement between them whereby the press would aid serious investigations either by delaying publication, or proactively releasing certain information, is all but lost.

The difficulty that emerged from the series of trials was the question of payment for material said to be disclosable in the public interest. Some stories were trivial and thus of no interest to the public whereas others were plainly in the public interest. The line was not easy to draw, even in hindsight. Prosecutors consistently submitted thatno such defence existed whereas defence advocates, with overwhelming success, argued that such was a necessary function of a free press in holding to account others in public life.

The absence of a statutory defence was not only apparent but had been expressly rejected by Lord Leveson. Sir Keir Starmer QC MP, the former DPP responsible for the charging guidelines for media related prosecutions in 2012, now supports the creation of a specific public interest defence. The need for such has been highlighted by the recent report of a Sun journalist being prevented from investigating the security failings at Sharm el-Sheik airport prior to the loss of a Russian airbus in Egypt allegedly due to an explosive device planted by ISIL. The reporter is said to have known since this summer that guards were letting Britons queue jump for a £15 fee without checking their luggage. Nothing was published, News Corporation Management and Standards Committee, it is suggested, having ordered the journalist not to proceed and not to offer cash to willing officials.

Meanwhile new legislation, in force as of the 3rd November 2015, threatens the award of punitive damages on innocent newspapers who have failed to sign up to Leveson compliant Royal Charter regulation. Sections 32-42 of the Crime and Courts Act 2013 apply to claims that commonly affect the press, including libel, breach of confidence and privacy claims. They allow higher damages to be awarded against defendants who have shown a ‘deliberate or reckless disregard of an outrageous nature’ for a claimant’s right. The Act draws a distinction between two categories of publishers; those who are members of a Royal Charter approved regulators and those who are not. Membership of the Charter offers the publisher immunity from exemplary damages. When courts decide whether to award exemplary damages they must consider:

(a) Whether membership of a Royal Charter approved regulator was available at the material time;

(b) If such membership was available, the reasons for the defendant not being a member; and

(c) Where relevant, whether the publisher had satisfactory internal compliance procedures in place and, if so, the extent to which they were adhered to.

Lord Black, the executive director of The Telegraph Media Group, said in response “The press will be singled out for special legal treatment for the first time since 1695 when licensing controls lapsed.” He added, “Just think how odious that is in a free society – you can be punished for honesty.”

 At present, it appears that only ‘Impress’, a regulator funded and backed by J.K Rowling and others, may apply to become the approved regulator. Questions inevitably arise as what will happen if only a small number of publishers join or, if as appears likely, none at all do so? Will the courts penalise publishers where the regulator exists with few, if any, members. Is it, for example, that membership of the IPSO (the newspaper industry’s independent regulator, and successor to the PCC, chaired by Sir Alan Moses) is a good reason for not being a member of the approved regulator? The Society of Editors has said that it knows of no one who wants to join the Royal Charter. John Whittingdale, the Secretary of State for Culture, Media and Sport has recently expressed doubts on the timing of the regime. Meanwhile publishers would be well advised to ensure that their internal compliance procedure is fit for purpose.

The fallout from the Leveson Inquiry, the failures of the prosecutions under Elveden and the proposed punitive measures of a regulatory regime has now left newspaper proprietors with serious qualms as to their role in sustaining a free press. The dangers sensed are nothing new. As George Orwell observed in 1946, “What matters is that in England we do possess juridical liberty of the press, which makes it possible to utter one’s true opinions fearlessly in papers of comparatively small circulation. It is vitally important to hang on to that.”

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