On 13 September 2012 the Director of Public Prosecutions published final Guidelines for prosecutors on assessing the public interest in cases affecting the media. The guidelines set out the approach that the CPS will take to prosecutorial decisions that affect the media. In particular, they provide guidance to prosecutors on how to decide whether a prosecution is in the public interest.
In an earlier post we examined the DPP’s interim guidelines and the accompanying consultation exercise. With a couple of interesting exceptions, the final guidelines cover largely the same ground as their interim predecessors.
The guidelines are an important development, bringing a degree of structure and foreseeability to an important aspect of prosecutorial discretion. However for the reasons set out in our previous article, they remain an inadequate substitute for a general public interest defence.
Scope of the guidelines
The DPP’s guidelines will be relevant whenever prosecutors are considering whether to charge journalists with criminal offences that may have been committed in the course of their work as journalists. They are also likely to be relevant when prosecutors are considering whether to charge other individuals whose interaction with journalists may have involved the commission of a criminal offence.
The guidelines do not displace the general principles contained in the Code for Crown Prosecutors. Accordingly, the starting point for any prosecution decision remains the two-stage test of (a) evidential sufficiency; and (b) consideration of the public interest. The DPP’s guidelines supplement the second limb of this test by providing further guidance about the assessment of the public interest.
Cases where there is no express public interest defence
The guidelines distinguish between offences where there is an express public interest defence and offences where there is no express defence. In respect of the former, prosecutors must first consider what any public interest defence may be, and how likely it is to affect the prospects of conviction – reflecting the general approach to assessment of the strength of likely defences in the CPS Code at para. 4.5.
In respect of the latter, prosecutors must ascertain whether the courts have given clear guidance on the proper interpretation of the offence. Where they have not, the DPP’s guidelines advise that, “the best course for prosecutors may be to put the relevant facts and matters before the court for consideration (assuming that the evidential stage of the Code test is otherwise met)”.
In other words, if it is not clear whether a public interest defence exists then the prosecutor should consider putting the case before the court for it to decide the issue. This is a telling paragraph, which demonstrates both the uncertainty of the present law and the advantages of a general public interest defence.
The guidelines specifically address the position under the Official Secrets Act 1989 and the resulting uncertainty is representative of the overarching problem which the guidelines do not remove. This is an important piece of legislation with obvious implications for investigative journalists, especially given the offence of onward disclosure of protected information under s.5. The Act underpinned the police action against Martin Bright and The Observer (when David Shayler was prosecuted under the 1989 Act) and, more recently, it was used (abortively) against Amelia Hill in relation to phone hacking sources. The courts have given clear guidance that there is no general public interest defence to offences under sections 1(1)(a) (disclosure by a member of the security or intelligence services) and 4(1) and (3)(a) (disclosure by a Crown servant or government agent of information that results in the commission of a criminal offence, escape from lawful custody or impedes the detention of crime or the apprehension or prosecution of suspected offenders): see R v Shayler  UKHL 11. Accordingly, prosecutors are therefore instructed to “proceed on the basis that there is no public interest defence available to a suspect who is charged under these sections”.
The Official Secrets Act is a prime example of the anomalous state of the current law and the case for a general public interest defence. There is no general “public interest” defence under the Act, however the public interest is relevant to whether any particular disclosure of information is “damaging” – a condition that must be satisfied for all offences under the Act except those in s. 1(1) and s. 4. In addition, the public interest may be engaged indirectly by the defence of necessity, which is applicable to all offences under the Act.
A good illustration of this is the case of Katherine Gun, a GCHQ employee who was charged with breaching s. 1 of the Official Secrets Act by disclosing the USA’s request to the UK to bug the so-called “swing states” in the United Nations during the run-up to the Iraq war. Her publicly stated defence was a desire to prevent a war without a lawfully obtained second UN resolution. The prosecution was abandoned on the opening day of her trial. One of the stated reasons given for discontinuing the prosecution was the difficulty of rebutting the defence of necessity – a tacit reflection of the relevance of the public interest in this area. Any attempted prosecution of the national newspaper which printed her disclosures would undoubtedly have faltered for the same reasons.
The DPP’s guidelines’ approach to the Official Secrets Act demonstrates how unacceptable it is to relegate the public interest to the back and side doors in this way: no general public interest defence but the public interest is relevant in assessing damage and whether to prosecute.
The public interest test
The guidelines identify the critical question for the prosecutor as being: “Whether the public interest served by the conduct in question outweighs the overall criminality?” If the answer is yes then it is “less likely that a prosecution will be required in the public interest”.
There are three stages to this exercise. First, the prosecutor must assess the public interest served by the allegedly criminal conduct. Second, they must assess the “overall criminality”. Finally, they must weigh these factors against one another and assess where the overall balance lies.
(1) Assessing the public interest served
The guidelines provide a non-exhaustive list of types of conduct that is capable of serving the public interest:
(a) Conduct which is capable of disclosing that a criminal offence has been committed, is being committed or is likely to be committed.
(b) Conduct which is capable of disclosing that a person has failed, is failing, or is likely to fail to comply with any legal obligation to which s/he is subject.
(c) Conduct which is capable of disclosing that a miscarriage of justice has occurred, is occurring or is likely to occur.
(d) Conduct which is capable of raising or contributing to an important matter of public debate.
(e) Conduct which is capable of disclosing that any one of the above is being, or is likely to be, concealed.
In relation to (d), the final guidelines expand upon the interim guidelines by providing further detail about what constitutes an “important matter of public debate”:
“There is no exhaustive definition of an important matter of public debate, but examples include public debate about serious impropriety, significant unethical conduct and significant incompetence, which affects the public.”
The value of this additional explanation is doubtful. Notions of “serious impropriety”, “unethical conduct” and “significant incompetence” are highly subjective – in practice it will be difficult for a journalist to conclude confidently that a prosecutor would share their assessment on these points. This is symptomatic of the all-pervading problem with the guidelines: they require the prosecutor to make a value judgement: to weigh the public interest of a journalist’s actions against the perceived seriousness of the crime. That is a task, surely, which only a jury can properly make. Clive Ponting’s case, for example, illustrates how divergent the views of prosecutors and juries may be.
This part of the Guidelines is clearly modeled on the Public Interest Disclosure Act 1998, which protects employees who make “protected disclosures” of certain types of information. The first three examples in the DPP’s guidance are almost identical to s. 43B(a)-(c) of PIDA. However PIDA contains two further categories of “protected disclosure” that are not included in the guidelines: information showing that the health and safety of any individual has been, is being or is likely to be endangered (s. 43B(d)) and information showing that the environment has been, is being or is likely to be damaged (s. 43B(e)).
It is not clear why these examples are not included in the DPP’s list, although their absence was presumably deliberate. The omission may have surprising consequences. Intercepting an email to reveal a cover-up about a spill of toxic chemicals or a leaking nuclear plant or a dangerous hospital, for example, is not something that apparently falls within the public interest guidance.
(2) Assessing the overall criminality
The Guidelines provide a non-exhaustive list of factors relevant to the extent of wrongdoing:
(a) The impact on the victim(s) of the conduct in question, including the consequences for the victims.
(b) Whether the victim was under 18 or in a vulnerable position.
(c) The overall loss and damage caused by the conduct in question.
(d) Whether the conduct was part of a repeated or routine pattern of behaviour or likely to continue.
(e) Whether the conduct in question included the use of threats, harassment or intimidation.
(f) Whether there was any element of corruption in the conduct in question.
(g) The impact on any course of justice, for example whether a criminal investigation or proceedings may have been put in jeopardy.
(h) The motivation of the suspect insofar as it can be ascertained.
(i) Whether the public interest in question could equally well have been served by some lawful means having regard to all the circumstances in the particular case.
These factors are identical to the factors contained in the interim guidelines. In relation to (h), the final guidelines seek to provide further detail: examples of motivation “might range from malice or financial gain at one extreme to a belief that the conduct would be in the public interest at the other, taking into account the information available to the suspect at the time”. Again, this additional detail adds little of substance to the earlier guidance. And the opaque language in (i) falls well short of an express acknowledgment that in some cases, the commission of the crime in question, may have been the only means by which the wrongdoing in question could have been exposed.
(3) Making a decision
In relation to the third stage, the guidelines remind prosecutors that assessing whether a prosecution is in the public interest is not an arithmetical exercise of counting up the number of factors on each side of the scales. Rather, each case must be considered on its own merits – it is entirely possible that one factor on its own may outweigh a multitude of countervailing factors.
The guidelines emphasise the need for “special care” in cases which involve the disclosure of journalists’ sources. The European Court of Human Rights has highlighted the “potentially chilling effect” on press freedom of the forced disclosure of journalists’ sources (see Goodwin v UK (1996) 22 EHRR 123) and the Grand Chamber in Sanoma Uitgevers BV v The Netherlands  EMLR 4 recently emphasised that source protection “is a cornerstone of freedom of the press, without which sources may be deterred from assisting the press in informing the public on matters of public interest”. In addition, section 10 of the Contempt of Court Act 1981 provides that no court may require a person to disclose the source of information contained in a publication for which they are responsible, unless the court is satisfied that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.
In our earlier post we highlighted four reasons why a public interest defence is preferable to prosecutorial guidance:
(a) First, guidelines require journalists to pre-empt a prosecutor’s assessment based on a range of broad and open-ended criteria. This is much harder to predict than a substantive defence, where a body of binding principles and illustrative case law would accumulate over time.
(b) Second, the scope for challenging a prosecutor’s decision is very limited. Absent bad faith, improper motive or other exceptional circumstance, judicial review is not available in respect of a decision to prosecute. By contrast, with a substantive public interest defence a defendant would have a full right of appeal (including a right to a reasoned judgment) against any rejection of their defence.
(c) Third, important evidence may emerge at trial which casts important light on the public interest served by the journalist’s conduct. In the absence of a substantive defence, that information cannot be used to avoid a conviction once the trial is underway.
(d) Fourth, the success of a substantive public interest defence would ultimately be a matter for the jury. The public interest is something that a jury – a representative cross-section of the general public – is uniquely suited to assess.
The DPP’s guidelines are a welcome development and arguably the next best thing to a substantive defence. But they are incapable of providing the predictability, enforceability and consistency that proper investigative journalism deserves from the law and which a general public interest defence would provide.
Earlier this year the House of Lords Communications Committee published a report into investigative journalism. While the report favoured the introduction of prosecutorial guidance over a general defence, it noted the problems caused by the lack of such a defence:
“85. These examples demonstrate the inconsistency between different pieces of legislation when it comes to whether there is a statutory defence relating to the public interest. We are aware of this and the practical challenges and uncertainties it creates for journalists, editors and the prosecuting authorities. For that reason we believe it is appropriate in considering any future law to ask specifically whether a statutory defence relating to the public interest should be included.”
The Leveson Inquiry is due to report shortly, and Parliament is scheduled to debate the defamation reform Bill this autumn. This is therefore an ideal opportunity to debate the merits of a general public interest defence.
The benefits of responsible journalism inure to the public as a whole. Thalidomide, cash-for-questions, MPs’ expenses, phone hacking – all were exposed through dogged investigations by British newspapers. The law should facilitate, not frustrate, such reporting. So long as journalists have to rely on prosecutorial discretion rather than legal principle for protection, it is society as a whole – as well as the media which serves it – that will suffer the consequences.
Alex Bailin QC and Edward Craven are barristers at Matrix Chambers.