media-leveson-1Whilst the headlines reverberating from the Leveson Report are dominated by the theme of press regulation, tucked away deeper in the Report are some very significant proposals concerning journalistic protection and the relationship between the media and the criminal law.

Leveson recommends that urgent consideration be given to significant amendments to the Data Protection Act (DPA) and Police and Criminal Evidence Act (PACE).

Data Protection

First, he recommends that the necessary steps be taken as soon as possible to increase the maximum sentence for unlawfully obtaining personal data (s55 DPA), typically by ‘blagging’, from the current fine-only to 2 years’ imprisonment.  That is relatively uncontroversial given that the power to increase the sentence is already on the statute book (s77 Criminal Justice & Immigration Act 2008) but has not yet been exercised. Leveson robustly rejected the contention that this would have any chilling effect on bona fide journalism. Indeed he concluded that to accept any such argument would be tantamount to suggesting that the press could ‘buy’ illegal access to personal data by paying any resultant fine.  He also rejected the more subtle contention that since the boundaries of this law are necessarily hard to predict, that too would have a correlative chilling effect since journalists would tend to be over cautious rather than countenance any risk-taking.  Perhaps, as feared, he was judging the media according to the worst practices he had been made aware of.  Whatever his overall view of the media’s probity, Leveson felt that this concern was not “empirically evidenced as a genuine operational problem to any degree”.

But as a quid pro quo, Leveson also recommended that the enhanced defence of public interest journalism (s78 CJIA) be brought into force immediately.  Broadly speaking, this provides that a journalist who acts in the reasonable belief that obtaining the data was in the public interest (which is defined in the DPA) has a defence to the criminal offence. For those who are interested in the availability of a general public interest defence to the media, Leveson dealt somewhat brusquely with the issue. He recommends that the ICO should adopt the CPS guidelines on media prosecutions.

Public Interest Defence

But this only begs the question of whether the guidelines are an adequate substitute for a general public interest defence – if the DPA offence merits a statutory defence of public interest journalism, should not other offences (such as phone, computer hacking and bribery) also attract such a defence, particularly when Leveson expressly accepted that those offences overlap with the DPA offence?  Leveson’s answer is that a public interest journalism defence is not necessary because there are “other mechanisms to ensure that the law is not brought to bear on journalists (or, indeed, on any one else) in an oppressive or unfair way”. These, he said, include prosecutorial discretion and the sentencing judge’s unfettered discretion.

Leveson went so far as to pray in aid of the jury’s inalienable power to acquit in the face of the evidence and noted the not guilty verdict in Clive Ponting’s case despite the breadth of the oppressive law at the time.  To suggest that the jury’s power to reject an unjust law is an adequate substitute for a public interest defence is not at all a persuasive argument. If anything it surely strengthens the case for such a defence. As does Leveson’s reliance on the sentencing judge’s theoretical power to impose an absolute discharge if he thought that a journalist was breaking the law in the public interest.

Police and Criminal Evidence Act (“PACE”)

Regarding PACE, Leveson was in even less media-friendly mode. He recommends that the Home Office should consider “and, if necessary, consult” amending three key journalistic protections in PACE. First, that journalistic material should only be held in confidence (and attract the full PACE protections) if it is continuously held subject to an enforceable/lawful confidentiality undertaking (s11 PACE).  That requires very careful thought. At first blush it seems valid because it merely reflects the accepted principle that confidentiality can be destroyed e.g. by crime/fraud – there is no confidence in iniquity, as they say.

But what it fails to recognise is very serious ramifications of bringing forward any argument about whether the material is truly confidential.  If enacted, the police would be able to say that a search warrant rather than a production order was appropriate in a case where a journalist held material relating to a corruption investigation – even if that material might relate to a completely honest whistleblower – because there could be no confidence in material relation to corruption. Such a situation could arise even where it was accepted by the police that the journalist was not a suspect or implicated in criminality in any way.  Or the police could argue that a search warrant rather than a production order was appropriate in an Official Secrets Act case because the journalist could not have given a lawful undertaking to preserve the confidentiality of material which he was not entitled to possess or retain. Without wishing to be unduly alarmist, this might well put policemen in the pressroom – something Leveson was at pains to state he did not want to do.

Next he recommended consideration be given to defining journalism in s13 PACE.  That is notoriously difficult, especially given the increasingly porous divide between mainstream and other media.  He relied upon the narrow meaning given to journalism by the Supreme Court in the case about the BBC’s Balen report but, as is so often said by judges, ‘context is everything’. Journalism is a specialised carve-out from the Freedom of Information Act, and that is a very different situation from deciding whether the police need a search warrant or an inter partes production order in order to gain access to the editor’s office.

Finally, he recommended that consideration be given to repealing a key access condition in PACE – para 2(b) of Sch.1: “that ‘other methods’ of obtaining the material have failed or have not been tried because it appeared that they were bound to fail”.  It was suggested by the police that this was easy to defeat by newspapers’ stated willingness to provide material and (the implication) that this was a recipe for turning on the shredders.  But this elides two important points – the first is that where the journalist is himself a criminal suspect (c.f. Operations Weeting, Elveden and Tuleta) any stated willingness to provide material can typically be discounted.  That argument is frequently successfully deployed by the police against business crime suspects who are already aware of the existence of an investigation at the time of a raid. The police can often satisfy a court to grant a search warrant because whilst such a suspect might willingly provide some documents he would never provide all incriminating documents which a warrant might find. Secondly, although this is not widely appreciated, it remains an open question whether a warrant is lawful against a journalist who is a suspect, or whether a production order remains the appropriate vehicle for access. Leveson was perplexed about the different regimes for access granted under PACE as compared to those under anti-terrorism legislation. Whatever may be inferred about Parliament’s intent, the media was caught napping during the passage of the Terrorism Act and failed to lobby to the same extent as it had done during the passage of PACE.

Leveson accepted that he had received submissions only from the police on these issues but nevertheless felt confident enough to make far-reaching recommendations. Clearly media organisations will want to lobby hard to be heard by the Home Office in the first instance.

Media Ride Alongs

Finally, Leveson had this to say about the worrying practice of the media accompanying the police on raids and the increasing prevalence of naming suspects in the media pre-charge: “Taking the press on operations should be controlled more tightly both to avoid the perception of favouritism and the risk of violating the private rights of individuals. There is a need for current guidance in this area to be strengthened; for example, I think that it should be made clear that save in exceptional and clearly identified circumstances (for example, where there may be an immediate risk to the public), the names or identifying details of those who are arrested or suspected of a crime should not  be released to the press or the public”.

Whilst this is welcome, it surely does not go far enough.  Taking the press on raids leads to the immediate identification of the suspects in question, triggers a much greater privacy intrusion and there will generally be no public interest whatsoever for such a practice. In 1998 the Divisional Court held that it “would deplore a general practice by any police force of inviting the media to be present when investigative procedures are being undertaken”.  This was echoed 10 years later by the Home Affairs Select Committee ““… we do not think it is ever acceptable for officers to identify individual suspects to the media before charge, as this has the potential to damage the investigation, any subsequent trial and the reputation of suspects released without charge”. Although proceedings are active for the purposes of contempt from the moment of arrest, the Christopher Jefferies case graphically illustrates that is not adequate protection from the deleterious effects of a suspect being named in the media pre-charge without any genuine need for such a practice.

Alex Bailin QC is a barrister at Matrix Chambers