Elveden prosecutions erred by treating journalists and their sources the same

http://www.theguardian.com/media/2015/apr/17/operation-elveden-journalists-prosecutions-dropped

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Lifting the threat of prosecution from the shoulders of nine journalists who had been accused of paying public officials for leaked information is not likely to give the director of public prosecutions a particularly good press.

Reporters are more likely to blame Alison Saunders for charging their colleagues in the first place. Nevertheless, the decision not to proceed against reporters arrested as part of Operation Elveden strikes an important blow for press freedom.

Related: Operation Elveden: Andy Coulson and eight other cases dropped by DPP

In reality, the decision was forced on the DPP by a ruling from the court of appeal a week before Easter. In quashing the convictions of a prison officer and a reporter who had paid the officer for information, the court made it clear that journalists and their sources were not to be regarded as equally culpable. However, the DPP deserves credit for reviewing all the pending cases promptly and terminating prosecutions that do not meet new guidelines laid down in the appeal court’s ruling.

In looking for charges to bring against public servants accused of selling information to journalists, the DPP had settled on the ancient offence of misconduct in public office. This is a crime under judge-made common law and therefore not as clearly defined as offences created by parliament.

Journalists do not hold public office themselves, of course. But those who allegedly paid for information were charged with conspiring with their sources to commit misconduct in public office or aiding and abetting sources to do so.

The lord chief justice, Lord Thomas, sitting with two other judges, decided on 26 March that juries should consider the harm done to the public interest in deciding whether misconduct was sufficiently serious to amount to a criminal offence.

Related: CPS reviews policy of prosecuting journalists over leaks by public officials

The appeal judges explained how they had developed the law:

The jury must, in our view, judge the misconduct by considering objectively whether the provision of the information by the office holder in deliberate breach of his duty had the effect of harming the public interest. If it did not, then although there may have been a breach or indeed an abuse of trust by the office holder vis-a-vis his employers or commanding officer, there was no abuse of the public’s trust in the office holder as the misconduct had not had the effect of harming the public interest. No criminal offence would have been committed.

Crucially, the press and their sources were to be judged by different standards:

Those employed by the state in public office will generally be in breach of the duty owed by them to their employers or commanding officers by providing unauthorised information to the press. However, information is sometimes provided by such persons in breach of that duty where the provider of that information may benefit the public interest rather than harm it.

What the DPP has now done is to look at pending cases in the light of the new test laid down by the court of appeal. In some cases, Saunders has decided that publication has not caused sufficient harm to the public interest – either because the information is trivial or because it can be regarded as justified whistleblowing.

In other cases, she is proceeding with cases against public officials – some have already pleaded guilty – while dropping charges against reporters. Some prosecutions of journalists are going ahead. Another factor taken into account by Saunders was that some of the sources had allegedly approached newspapers, rather than the other way round. So these were not cases in which reporters were seeking out sources and looking to corrupt them.

The DPP also recognised that reporters were unlikely to know whether paying money to sources would bring them within the ambit of misconduct in public office. That said, the DPP is not offering reporters a blank cheque for the future. Saunders has reminded the press that, in respect of payments made from July 2011, she can bring charges under the Bribery Act 2010.

In a bribery case, the person who pays a bribe and the person who accepts it may be regarded as equally corrupt. Where prosecutors went wrong in the newspaper cases was to treat reporters and their sources as equally culpable. A source who discloses information may be in breach of an employment contract. The journalist who buys it may simply be doing his or her job.