Swinging in the breeze

6 March 2002 – The door to the last chance saloon is swinging in the breeze; under proposals published by the Lord Chancellor’s office, journalists and editors who agree to pay witnesses in criminal trials for their stories will be guilty of a criminal offence which could be punishable by imprisonment. Witnesses and potential witnesses who agree to take money would also commit a crime.

The prospective penalties are stiff. Publishers, editors and reporters could face up to two years in jail or an unlimited fine in the crown courts, or one year and £2,500 in the magistrates’ courts.

Where media activities cause a criminal trial to collapse, as in the case of Leeds United footballers Lee Bowyer and Jonathan Woodgate last April, publishers could face millions of pounds in legal costs. That particular incident, brought about after a story was published in a Sunday newspaper, is thought to have cost the taxpayer £8 million.

Lord Irvine’s move, which appears to toughen the sanctions already available under the 1981 Contempt of Court Act, will doubtless concentrate the minds of editors everywhere, particular those of the tabloids. As he rightly says, echoing the view PressWise expressed to a select Committee hearing on the subject: “Payments create a real risk of encouraging witnesses to exaggerate their evidence in court so as to make it more newsworthy, or to withhold relevant evidence from the court in order to give newspapers exclusive coverage later on.”

This has been a long time coming. PressWise has long inveighed against the practice of chequebook journalism, especially after the Rosemary West murder trial in 1995 and the sexual assault trial of Garry Glitter. It was a warning from PressWise in advance of the West trial that persuaded Lord Wakeham to issue a reminder to editors about the risks of affecting a fair trial.

Now the scales appear to have been tipped by the allegations of witness payments in the Amy Gehring trial, and by last week’s development in the Damilola Taylor murder trial when the evidence of a key witness was rejected after the suggestion that she had been influenced by the offer of a £50,000 reward from the Daily Mail.

The proposed legislation will represent a brutal snub to the Press Complaints Commission, whose Code of Practice contains the following provision:

16. Payment for articles

(i) Payment or offers of payment for stories or information, must not be made directly or through agents to witnesses or potential witnesses in current criminal proceedings except where the material concerned ought to be published in the public interest and there is an overriding need to make or promise to make a payment for this to be done. Journalists must take every possible step to ensure that no financial dealings have influence on the evidence that those witnesses may give. (An editor authorising such a payment must be prepared to demonstrate that there is a legitimate public interest at stake involving matters that the public has a right to know. The payment or, where accepted, the offer of payment to any witness who is actually cited to give evidence must be disclosed to the prosecution and the defence and the witness should be advised of this).

(ii) Payment or offers of payment for stories, pictures or information, must not be made directly or through agents to convicted or confessed criminals or their associates – who may include family, friends and colleagues – except when the material concerned ought to be published in the public interest and payment is necessary for this to be done.

This new clause was introduced with a flourish on the day that the PCC faced a grilling from the then National Heritage Select committee about payments to witnesses. It got them off the hook then, but Lord Irvine is now saying, in effect, that this element of self-regulation, backed by no effective sanctions whatever, has proved ineffective. And he is right. It is significant that his statement makes no mention of a “public interest defence”, though it remains to be seen what appears in the Bill.

When editors complain that this is an encroachment on cherished press freedom, they should note that anyone who seeks to interfere with due process of law is committing an offence making them liable to fines and imprisonment. What special justification does a commercial enterprise have to wave a chequebook and influence witnesses or jurors?

Journalists are staunch in their investigation of miscarriages of justice – they must be equally staunch in their opposition to anything that might give rise to such miscarriages.

This should be a wake-up call to the Press Complaints Commission under the new (if temporary) leadership of Professor Robert Pinker. Will it at long last assume meaningful powers to ensure compliance with the Code of Practice, or will it wait for Lord Irvine’s next move?

For a full statement of PressWise’s view on chequebook journalism, click here.

Bill Norris
Associate Director

(Bulletin No 60)

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