Journalists should not be taken to court for paying public officials for information if the leaks are in the public interest, a former director of public prosecutions has said.
Ken Macdonald QC said “not enough weight” had been attached to the public-interest defence in the recent attempts to convict journalists as part of Operation Elveden, the £20m investigation into journalists and their sources that began three years ago.
His comments came after the current DPP, Alison Saunders, announced she was abandoning future prosecutions of Andy Coulson and eight other journalists who were facing trial over leaks from public officials.
Lord Macdonald told BBC Radio 4’s Today programme: “I think we have to give the highest regard to the importance of freedom of expression and the free exchange of ideas, and I think it is simply obvious that there are circumstances in which it can be in the public interest for journalists to pay for information. Not for tittle tattle, or gossip or scandal. But we can all imagine cases where if the price of information coming into the public domain is the payment of a public official by a journalist then that’s an appropriate thing for the journalist to do.”
Macdonald, who was the DPP from 2003-08, added: “It looks as though in the charging decisions that were made in the past in the Elveden cases, not enough weight was attached to the public interest in free expression and the freedom of the press, and that was an error I think the DPP has tried to correct by dumping these cases.”
The Crown Prosecution Service will now offer no evidence in the cases of nine journalists, who include Coulson, the former editor of the News of the World, and Clive Goodman, the paper’s former royal editor, who were awaiting trial.
The prosecution will continue of a further three Sun journalists: Chris Pharo, head of news, and district reporter Jamie Pyatt who both face a retrial after a jury failed to reach a verdict earlier this year, and Anthony France, the paper’s crime correspondent.
The decision to drop the cases came after a review forced on the CPS by an appeal court ruling last month that questioned prosecutors’ use of the charge of conspiracy to commit misconduct in public office – an ancient common-law offence – to pursue the journalists.
The new CPS guidelines state that where journalists are involved with corrupt police officers, there would be a “high public interest” in prosecuting. But for journalists who deal with other types of officials, such as prison guards, the harm to the public interest in corrupt payments may be “finely balanced” against the lack of harm caused by the resulting stories. In these circumstances, the prosecution of journalists “may not always be in the public interest”.
The high-profile Elveden inquiry began after widespread phone hacking was revealed at the News of the World. News International, the owner of the Sun and the News of the World, gave the police documents relating to its staff, including 300m emails. From this information, detectives were given details of journalists and their sources and began a series of raids.
The journalists arrested were left on bail in some cases for two or more years. The vast majority were cleared, with only two convictions out of 29 charged.
Among those acquitted were the former Sun editor Rebekah Brooks, the deputy editor Geoff Webster, the royal editor Duncan Larcombe, the executive editor Fergus Shanahan and the chief reporter John Kay.
Kay successfully argued that the leaks, which included revelations about shortages of equipment for British soldiers in Iraq and Afghanistan, and bullying at Deepcut barracks, where four soldiers took their own lives, were in the public interest.