Journalism in ‘the public interest’ is central to a healthy democracy but extremely hard to define and police. At present it has an ambiguous legal status; recognised by law but not enshrined in it. The ‘public interest’ is often (successfully) used as a defence by journalists for publishing stories or doing things which are technically illegal. Yet this protection relies on the discretion of judges and the CPS and is not underpinned in statute.
A debate at Gray’s Inn on Wednesday 20 March 2013, ‘Protecting free speech: A Public Interest Defence for the Media?’ chaired by Sir Anthony Hooper, considered whether this should change. The debate was organised by the Criminal Bar Association and the Law Reform Committee of the Bar.
Proposing the motion, Gavin Millar QC said that since the European Convention on Human Rights was introduced in the UK in 1998, freedom of speech was a positive right (for the benefit public as well as the journalist) and should be upheld accordingly.
Yet judgments from both domestic and European were inconsistent in their support of the public interest he argued, citing the Fressoz and Roire case. This was enough to create a ‘chilling effect’ which caused uncertainty among journalists and discouraged vigorous investigation. The law should be clarified and removed from the hands of the fallible judiciary. Quoting Lord Tomlin’s famous phrase he hoped “the uncertain and crooked cord of discretion” would be replaced with the “the golden and straight mete wand of the law.”
Proposing the case for the opposition was Max Mosley. He said the current CPS guidelines and Leveson’s comments on the subject (Volume IV, part J, chapter 2) already gave sufficient weight and clarity to public interest while the judicial system had enough checks and balances to prevent a serious miscarriage of justice.
A public interest defence in law, however, would have two main negative effects. First, it would provide an excuse for invasions of privacy by journalists not acting in the public interest, pointing out that proving someone’s intentions is impossible. Second, it would encourage the police to respect individual’s privacy less. This point was later disputed by a member of the audience.
Seconding the motion, Gill Phillips, head of executive and legal services at The Guardian, drew attention to the gross mistreatment of Sally Murrer, of the Milton Keynes Citizen, who was mistreated and persecuted for receiving supposedly confidential information from police.
It can not be right that Amelia Hill and David Leigh, two Guardian journalists who helped break the phone hacking scandal, were threatened with prosecution for their role in an investigation which is self evidently in the public interest (like Murrer, the charges were eventually dropped after hanging over them for more than a year).
So opaque are the current rules that when she called a lawyer about the Official Secrets Act, she was told that the matter was so sensitive that they couldn’t even give advice. “Information is the oxygen of society” yet this information is currently being stifled by the law.
Richard Drabble QC, seconding the opposition, reinforced some of Mr Mosley’s points before querying how a public interest would work in practice. He suggested it would only cause more confusion. Could a public interest defence apply in all circumstances? Could one murder in the public interest? Who would define the public interest and at what stage of the legal process would it be applicable?
No other country has such a law while the considerable body of legal precedent gave solid protection to journalists genuinely working in the public interest.
The audience voted around 3:1 against the motion.
The proposition did not do enough to persuade people that the current system was genuinely discouraging journalists from undertaking important investigation. Though shocking, examples of miscarriages of justice were rare and the likes of Murrer, Hill and Leigh were not actually prosecuted in the end. The opposition was convincing in arguing that a public interest defence was impractical and that we were better off keeping our faith in the judiciary and the existing implicit compromise.
Henry Vane is a postgraduate journalist student City University