The law, the media and the release of information to the police

Robert Henderson

“Untransmitted video from August’s riots in London has been handed to police by the BBC, ITN and Sky News after Scotland Yard obtained court orders against the media organisations. “(http://www.bbc.co.uk/news/uk-15024354)

The media has responded with two arguments against the power of the courts to order them to release unbroadcast/unpublished  material. The first is that it places photographers and reporters at risk because they will be seen as agents of the police; the second  that it could endanger the anonymity of sources.

The endangerment of journalists argument holds no water. The media  routinely prints still photographs or broadcasts  video evidence which is  likely to lead to the identification of people committing crimes   Not only that but, as was the case following the recent UK riots, many newspapers   not only  print stills released by the police of  suspected criminals,  but urge
their readers to inform the police if they could identify any of those whose photographs were published.  To that  can be added the fact that  whether or not material is subsequently printed or broadcast  is irrelevant,  because any person engaged in behaviour they do not want recorded  has no way of knowing whether it will be used or not.

Often the media go beyond  simply recording events and  actively work to provide evidence of crimes which they then  pass on to the police, for example, the BBC’s  secret recording of a BNP meeting at which the BNP leader Nick Griffin and  BNP member Mark Collett made remarks which subsequently led to their arrest and trial (twice tried with an innocent verdict at the end) for inciting racial hatred . The BBC used this and other BNP-related material gained by subterfuge in a film The Secret Agent  in 2004v and then passed  at their own instigation the material to the police (http://news.bbc.co.uk/1/hi/magazine/3896213.stm).   This is a much more clear-cut case of  the media acting as police agents than handing over material to the police after a court order has forced them to do so.

It is also a  fact that journalists in Britain are rarely seriously assaulted as they  record committing crimes.  The worse journalists may expect to suffer is a few bruises and perhaps the loss of their camera through damage or theft. That suggests either those committing public crimes such as rioting and looting are too caught up in the moment to take note of  photographers or reporters or that the presence of people with cameras acts as a deterrent  in itself. The latter reason would have particular force where the camera is a video one and the user is clearly
identifiable as working for an organisation such as the BBC,  because many people, and especially the techno-freak  young, will think that the recorded material is being immediately transmitted to a remote location and consequently  smashing or stealing a camera will not help them to remain anonymous while  any assault is likely to be caught in its initial stages on camera.

Journalists being  attacked after the event is much rarer.  This is tacitly acknowledged by mainstream broadcasters and  newspapers  through  their willingness to surreptitiously engage in
investigations of crime.  The BBC was willing to sanction the Secret Agent investigation despite their routine depiction of the BNP as a party populated by ultra-violent  boot boys.  Either they do not believe their own  depiction of the BNP or they  judge that reprisals against journalists are unlikely.

The  evidence is clear: in Britain there is little danger of  journalists being attacked either at the time of witnessing and recording an event or afterwards even where they have instigated an investigation which has led to criminal charges.

The claim that the anonymity of journalistic  sources might be compromised  has some force generally, but in the context of video evidence of events such as the riots little traction because it is difficult to see how recording such scenes could raise the issue. I suppose a journalist might receive information about a riot  from someone or even be taken to the site of a proposed riot by a third party, but they would be unlikely to record or video such  an informant because nothing would be gained by doing so.  If a journalist  caught an informant on camera accidentally at an event like a riot it would mean nothing beyond the fact that an individual had been videoed. It would say nothing about whether he was the source a story.

But even generally the chances of video or photographic evidence identifying someone as a source is a long shot. It is possible to construct scenarios where it could happen,  but the probability of it actually happening is slight. Such scenarios would have to be something like this: a source appears on video or in a still photograph which allows them to be identified whilst at the same time identifying the subject(s) of an investigation. The journalist keeps it  because he wants the evidence  it provides relating to those being  investigated.  Alternatively, a journalist might record a source giving information and retain it as proof or as an aide memoire. But as any journalist should be aware that the law provides for the courts to order
them to release information to the police they would be culpable if they kept such material.

The power to seek  written or other evidence from journalists  comes from section 9 of the  1984 Police and Criminal Evidence Act (PACE – http://www.legislation.gov.uk/ukpga/1984/60/section/9). This places material gathered for journalistic purposes in a very privileged position because  a special procedure to force a journalist or media outlet to release material to the police has to be used to acquire the follwing information:

(c)journalistic material which a person holds in confidence and which consists—.

(i)of documents; or.

(ii)of records other than documents..

(2)A person holds material other than journalistic material in confidence for the purposes of this section if he holds it subject—.

(a)to an express or implied undertaking to hold it in confidence ; or.

(b)to a restriction on disclosure or an obligation of secrecy contained in any enactment, including an enactment contained in an Act
passed after this Act..

(3)A person holds journalistic material in confidence for the purposes of this section if—.

(a)he holds it subject to such an undertaking, restriction or obligation; and.

(b)it has been continuously held (by one or more persons) subject to such an undertaking, restriction or obligation since it was first acquired or created for the purposes of journalism. (http://www.legislation.gov.uk/ukpga/1984/60/section/13)

That means the special procedure would have to be used to acquire virtually anything  held by a journalist or media organisation.  That is a heavy bar to the police routinely using such a power. To that obstacle can be added the fact that obtaining a court order using this special procedure  is a far more onerous process than is required  to obtain information from someone who is not a journalist – see http://www.legislation.gov.uk/ukpga/1984/60/schedule/1/enacted).

The Official Secrets Act  (OSA)

The  Metropolitan Police (Met)  recently attempted to  use the OSA to force the Guardian newspaper to reveal the source of information given to the paper about the hacking of the
phones of the murdered school Milly Dowler and her family  (http://www.guardian.co.uk/media/2011/sep/19/phone-hacking-met-police-consult).  The attempt was dropped after a public outcry,   but it is important to understand what the Met were trying to do because there was a good deal of confusion in the media about what the  OSA is and how it could be used for such a purpose.

The OSA does not provide powers to require the media to name sources as such. What the abortive attempt to use the Act was about was whether  the Guardian reporter  Amelia Hill had incited the source to break the OSA by giving her the material.  Given all the circumstances the source may well have been a police officer,  so  the Met had a particular interest in knowing
the source’s identity. But even if the question of incitement did not arise, Hill could have committed an offence under the OSA.   If her source was  a police officer or any other public servant  she would have committed an offence.

It is not widely understood that the OSA applies to everyone not merely those who have signed it.  For example, it is illegal for someone who has not signed the Act to receive information knowing or suspecting that it is given in breach of  the OSA and the recipient would be   liable to the same punishment  as the supplier of the material if they did not inform the police. (Someone would not commit an offence if they were offered information but refused it, provided they made the refusal without knowing what the information was. In that instance there would be no legal obligation to inform the police) .

Every public servant will have  signed the OSA and all journalists should know this. Hence, they should be suspicious of any information  received from a public servant  because it carries with it a high probability of being the breach of the OSA.   If  a police officer supplies  information to a journalist it is almost certain that it will be in breach of the OSA.

Whether  the OSA should exist in its present or any other form is a matter of debate –  personally I would like to see  abolished   – but while it exists journalists are subject to it and it is important that they understand what this implies for them and to accept the restrictions it places on what they may or may not do in respect of receiving information.

Paying for information

If  money is paid to a public servant  for information that is confidential, whether or not it is covered by the OSA,  this creates a separate criminal offence which has often  been dealt with through Misconduct in Public Office charges although other applicable  laws such as the Prevention of Corruption Act 1916 are still on the Statute Book. (http://web.mac.com/rmbscarb/iWeb/rmbconsulting/Misconduct%20in%20Public%20Office.html).  It is possible that the Bribery Act 2010 (http://www.legislation.gov.uk/ukpga/2010/23/contents) could be used, although that is as yet untested in this area (http://www.guardian.co.uk/law/2011/jul/15/bribery-act-phone-hacking-investigation).

Bribing anonymous public servants, especially those involved with the law, is the point where the journalist indubitably crosses the line between seeking to promote the  public interest
to engaging in a straightforward crime.  It can be argued with some force that to breach the OSA for strong public interest reasons can be justified in some instances, or at least that it is very powerful mitigation, but bribing a public servant is simple criminality.

If the journalist is allowed to claim an absolute privilege to withhold the names of sources or other information relating to such bribery, they are in effect granted  the right to commit a serious crime, a crime which is corrosive of the rule of law because a corrupt public official has been rewarded and left in place to sell other information.

The onus on the citizen to inform the police of crime

There is no general requirement in English law for someone to report a crime, although under the Terrorism Act 2000 section 19 there is a requirement to inform the authorities of any suspicion or belief that someone has committed or will commit a terrorist crime  under  the Act. (http://www.legislation.gov.uk/ukpga/2000/11/section/19).  However,  there is no clear line  between simply failing to report a crime or a suspicion of a crime  and  being an accessory before or after the fact. For example, if  you see  an escaped criminal whom you know personally  in the street and  fail to inform the police you would commit no crime. But if the person came to your house and you allowed them to hide up there without telling the police,
you would commit an offence.  The same would apply to journalists who  received unsolicited material which breached the OSA  from a source whom they knew which they then retained without informing the police).

But if there is no general legal obligation to report a crime there is a moral one. The problem with the media claiming an absolute bar to either having to provide material to the police which has not been published or being forced to disclose a source is that  if enforced the most serious crimes could be known to journalists but go unpunished because the media refuses to disclose information to the police.  Would any journalist think it reasonable to withhold material which identified a murderer? If the answer is no, then Pandora’s Box is opened because if it is deemed reasonable to breach the journalist omerta in that instance why not where a rape is involved? And if  it is reasonable to provide the police with material relating to rape why not any other serious crime?

If it is accepted that all serious crimes should involve journalists informing the police of any information they have about  such crimes, how is a serious crime defined? For example, is the line drawn at GBH leaving ABH assaults outside the definition?  Or would it be defined by the penalty prescribed by law, for example, all offences carrying a potential sentence of 5 years or more.  Whatever definition  was adopted it would be very messy with many gross anomalies arising from the disproportion of sentences between offences and the fallibility of the CPS in keeping a consistency of charge for similar offences, for example, it is often a toss up  between Grievous Bodily Harm (GBH)  and  Actual Bodily Harm (ABH)   when an assault causing physical harm is considered.

What is certain is that the crimes committed during the 2011 riots – burglary, theft, arson and incitement to riot would fall into the serious crimes category.

Journalists cannot be above the law

If there were was s an absolute bar on journalists being legally forced to disclose sources and material pertinent to the solving of crime,  journalists would  be in a position which was dangerously privileged. They would not only be able to freely  obstruct police in the investigation of a crime which they had no part in, they would have the opportunity  to use the power to cover up crimes in which they were active players.

There is also the difficult question of who would be protected by the designation “journalist” if an absolute privilege existed.    Would it cover the freelance photographer without an NUJ card, the blogger “citizen journalist”, the person who writes for small political journals?   The answer is almost certainly no.   That would put the mainstream journalist in an even more privileged position. (This is what happens already when it comes to such law as section 9 of  PACE).

There are obvious dangers for press freedom  in the police or the courts seeking sources and other information, but there are pretty strong legal and customary barriers to these being routinely demanded by the authorities.   If the OSA was abolished much of the problem would vanish because journalists would commit no crime if they solicited or received what is now OSA protected material.

The vast majority of OSA crimes could be dealt with under the existing laws relating to confidentiality which apply to all corporations, large and small, public and private, and those working for them. The proportionate punishment in most instances would be dismissal and possibly loss of pension rights and banning from any other public employment.     It might seem that some stronger law would  be needed to deal with military secrets,  but in peacetime at least there is a strong argument that the public knowing what is  Britain’s defence capability is the best way of ensuring that it is adequate.

Outside of OSA protected material, it is worth pointing out that media outlets will not infrequently be involved in civil actions where the question of disclosing sources and information will be tested.  The courts provide a certain protection to journalists  but it is far from absolute.  Refusal in a civil action to identify  sources can and does place journalists in the position where they have to choose between being sentenced or contempt and revealing the information.  It is also probably a prime driver of media outlets settling out of court  as this will prevent
a journalist being placed in such an invidious  position.

If official secrecy needs to be pierced so does that of the media which routinely suppresses stories which do not suit its purposes.  Two prime examples are the failure of the mainstream
media to publicise the attempted suicide of Blair’s daughter  Kathryn (https://livinginamadhouse.wordpress.com/2010/10/02/the-blair-daughters-attempted-suicide-and-the-publics-right-to-know/) nd the Blairs’ failed attempt to prosecute me in 1997 and their subsequent  use of Special Branch and MI5 to harass me (https://livinginamadhouse.wordpress.com/2010/10/26/when-tony-and-cherie-blair-tried-to-have-me-jailed/).