Nick Cohen has many qualities as a polemical writer and orator and is a fierce defender of free expression. We have fought many battles on the same side, not least blasphemy abolition, against an over-broad religious hatred law, and libel reform, but he is wrong about Leveson and about the Hacked Off campaign for a free and accountable press.
In an article in the Observer on Sunday 25th January entitled “Rupert Murdoch and the police treat journalists like terrorists” he combines some good points about the hypocritical attitude of the Murdoch press with some bad points about Leveson. He suggests that the prosecution of Sun journalists for paying public officials was, somehow, encouraged by Leveson and is part of a general attack on journalists’ sources.
He is wrong on both points.
There was nothing in the Leveson Inquiry that affected the prosecution decisions of the CPS when it came, to what is alleged to be, large-scale corrupt payments to public officials to help tabloids get “exclusives”. Operation Elveden was well underway by the time Leveson reported, and the Leveson Inquiry steered well clear of dabbling in the specifics of cases under current investigation.
The accused are being prosecuted under a criminal law which existed for decades before Leveson. This is because, strangely enough, bribing police officers or conspiring with corrupt cops, to do corrupt things, has never been considered a good thing by the authorities or by the public. Or even by Sun readers.
In fact Leveson’s recommendations would increase journalists’ protection. Leveson proposed a “first amendment style” statutory protection for the press (recommendation 33). In their pique, this was rejected by the press industry. It was never backed by Nick Cohen either.
Leveson proposed costs protection (even in cases they lose) for news publishers who belong to a self-regulator certified as independent and effective. This would reduce the “chill” of libel claims against investigative journalists that they currently face from their targets. It would actually protect tabloid-style stories about celebrities from well-funded claimants. But the press industry are rejecting that too.
Hacked Off has argued for explicit statutory public interest defences in criminal laws that affect journalists. When our amendment to do just that was debated in the House of Lords last year, Nick Cohen was silent.
The article also contains a number of factual inaccuracies.
First Nick Cohen suggests that Sun journalists have been prosecuted for paying public servants for stories, some of which “were clearly in the public interest”. Well, there is already what amounts to an effective public interest defence in the offence that the Sun, News of the World, Daily Star and Mirror journalists are facing. If the public official had “reasonable excuse or justification” to conduct himself as he did, then the offence is not made out.
If all the stories cited in the trials to date were public interest block-busters like the ones that Nick Cohen (inaccurately) described then the charges would have been thrown out by the judge after “half-time” submissions of “no case to answer” – which were made in all cases; or the jury would have acquitted. In fact in one of the trials due to be heard again, it wasalleged in court that The Sun paid a policeman to supply the name and address of a rape victim.
Second, he says that “prosecutors have yet to convict a Sun reporter”. In fact, one Sun journalist has been convicted in these trials – Nick Parker – in respect of illegally trawling the contents of a mobile phone which was stolen. And a former News of the World journalist has been convicted of corrupt payments to public officials – in the case of a prison officer selling salacious stories on one of the Bulger killers. Another former News of the World journalist has pleaded guilty to conspiracy under the same law.
Third, Nick Cohen (rightly) defends the protection of journalistic sources but in the course of doing so gets his facts wrong. He says that the police agreed “to try to stand up a desperate defence of that proved liar Chris Huhne by seizing all the confidential phone records of the Mail on Sunday newsdesk”. I agree that there should be judicial oversight before journalistic phone records can be seized. Moreover, as the Serious Crime Bill progressed through Parliament, it was aHacked Off-drafted amendment that was debated, which sought to do just that. But in the Mail on Sunday case I suspect any judge would have granted the police permission to get the records to establish, not the guilt of Huhne as Cohen claims, but whether a judge (Constance Briscoe) had lied in a witness statement and had therefore perverted the course of justice. They did, she had and she was jailed.
Nick Cohen declared “Honourable reporters go to prison to protect their sources” and attacks Rupert Murdoch as the villain while suggesting all other newspaper executives are his victims. But in the Huhne case, the party who was guilty of “shopping sources” was the Sunday Times – and not Rupert Murdoch. Nick Cohen did at the time rightly criticise the journalist and editor at the Sunday Times, neither with whom went anywhere the remotest possibility of prison before handing over Vicky Pryce as their source. It is a pity that he omits to mention that now it does not fit into his MI5/Murdoch conspiracy theory.
And in a recent acquittal of a Sun Reporter for trawling through a stolen mobile phone for salacious stories, it emerged in court that when the mobile was reported as stolen, the Sun immediately shopped their “tipster” to the police without even being asked!
Finally, Nick Cohen and I can, perhaps, agree on this. The bulwark for journalistic source protection in this country is Article 10 the European Convention on Human Rights, brought into English law by the Human Rights Act 1998. When newspaper editors campaign for the repeal of that Act, they should be exposed as the hypocrites they are when they talk about the importance of maintaining source protection.
Evan Harris is the Associated Director of Hacked Off
This post originally appeared on the Hacked Off blog and is reproduced with permission and thanks
“He suggests that the prosecution of Sun journalists for paying public officials was, somehow, encouraged by Leveson and is part of a general attack on journalists’ sources.”
Actually he doesn’t do this. He doesn’t make any explicit link between the Leveson report and the on-going attack on journalists by the establishment. He mentions the inquiry as part of the context in which journalism has existed over the past four years.
I know I shouldn’t be shocked that you don’t think there is a general attack on journalists and their sources, but I am. This attack is wide-ranging and includes the corporate-level, official guidance to public sector workers – most notably police officers – that they should not speak to journalists without permission, the use of RIPA on journalists on an industrial scale to discourage sources from coming forward, the increase in police harassment of photographers in public places, the David Miranda case, the mooted attempts to denude the FOI Act, and, yes, the prosecutions of Sun journalists and their sources. When senior police officers who speak to journalists are arrested and suspended even though there is no allegation that they received any payment, then what are we to think?
Remember that so far 64 journalists have been arrested or charged. Sixty-four. What other industry has ever had such a large proportion of its members wrung through the Criminal Justice System, over such a long period of time?
How can you deny that people in senior positions have used the outcry over journalists’ misbehaviour as a cover for their attempts to shield themselves from scrutiny? Public officials in almost every arena of public life are keen to avoid scrutiny, hence the existence of quangos, consultants and public inquiries to obfuscate and frustrate attempts to see what they are doing. Why should they not take up such a golden opportunity to make it harder for people to discover what they are up to, and discourage others from looking in the first place or speaking up when they find something hidden?
One other thing – you blame the press industry for ‘rejecting’ ‘a “first amendment style” statutory protection for the press’. I don’t recall any journalist doing so, I don’t recall any press umbrella organisation doing so. If you mean that it was rejected because those people rejected the Leveson report in general, then your point is tendentious. And even if it were the case that your betes noires of the national press had done so, what does it matter anyway, when such a piece of legislation would affect thousands of other journalists on magazines, websites, local newspapers and in broadcast media? The crucial point is that no MP, no political party has made any attempt to get such a protection onto the statute books and they are the ones who actually hold the levers of power. You seem to blame journalists for not passing legislation.