The phone goes. Someone is ringing to offer the news desk of the Sun a very big story indeed.So writes Kelvin Mackenzie, former Editor of The Sun, in the Huffington Post this week: 'How Catching Jimmy Savile Would Have Meant Breaking the Law'. It didn't take long for other ex-News International executives to rally in support
Let's imagine this time the call came in the summer of 2007 shortly after the Crown Prosecution Service (CPS) had decided the evidence collected by Surrey Police (true) was not strong enough to charge Jimmy Savile with the sexual abuse of four young girls.
The voice on the end of the line says he's a legal clerk/Crown Prosecution solicitor/police officer outraged at the decision of the CPS not to prosecute.
They make a stunning offer; I will hand over the CPS file so your journalists can study the evidence and make your own inquiries. But there's a catch - they insist "this is dangerous for me, so if you publish anything I want £1,000 in cash.
Kelvin Mackenzie on Sun arrests and the threat to Press freedom. Put aside any red top prejudice and have a long think. huffingtonpost.co.uk/kelvin-mackenz…
— Neville Thurlbeck (@nthurlbeck) November 8, 2012
Tabloid veteran Kelvin Mackenzie hits out atarrests of 21 Sun Reporters under little-known law no-one had heard of huffingtonpost.co.uk/kelvin-mackenz…Nice 'moral maze' scenario, Kelvin - one we should definitely think about - and look a tad more closely at your journalistic dealings with an imaginary Surrey policeman.
— Neil Wallis (@neilwallis1) November 8, 2012
Mackenzie protests at how ridiculous it is to think your average newsdesk journalist might have been aware of the relevant laws governing their trade. Sounding more like Harry Enfield's Kevin than Kelvin ("It's so unfaaaaair..."), he simply fails to see that perhaps a senior Editor could (nay, should) have ensured appropriate training. And in Kelvin's World, it would be unrealistic to expect that highly motivated, Press Complaints Code-aware newshounds would have the skills in research, investigative techniques, or curiosity necessary to find out what legal constraints they should abide by.
Ah, but it's that word 'constraints' that peeves you so - isn't it Kelvin.
His ire is particularly, but not exclusively, aimed at the 1906 Prevention of Corruption Act. And - even more outrageous - the 1906 act has no public interest defence! Fortunately, that hypothetical Surrey policeman would be well aware of the Prevention of Corruption Act to save Kelvin and his newshounds from their blissful state of ignorance.
1906?! So old, so obscure. Who knew...?!
But that's why newspapers employ top flight lawyers. If in doubt, journalists can double-check with these in-house legal specialists. Why, they even have to undertake annual Continuing Professional Development (CPD) training so that they keep up to date. Their essential role in advising and protecting against reckless journalism is exemplified by Times legal eagle Alistair Brett's evidence to the Leveson Inquiry
"Mr Foster wanted to know if he had already broken the law and if there was a public interest defence on which he could rely... "There's a Computer Misuse Act?! So recent, so new-fangled. Who knew?!
"... I knew there was a public interest defence under section 55 of the DPA. I told Mr Foster that he might have a public interest defence under the section... by accessing someone’s computer as I did not think it was a RIPA (Regulation of Investigatory Powers Act) situation...."
"Q: Had you heard of the Computer Misuse Act?
A: I hadn't at that stage."
(later) ".... I realised that Mr Foster’s accessing of NightJack’s computer was far more serious than I initially thought as there was no public interest defence to Section 1 of the Computer Misuse Act."
Never mind, at least another News International title had some legal expertise on hand to keep it out of trouble. Tom Crone's evidence to Leveson (pp 36-39) showed how News of the World was on top of its game and well advised by him:
Q. The question you were posed related to the legality of paying public servants, including police constables, for information either in cash or in kind.... on such occasions, can you assist us, please, as to what your advice was?Well, that's clear then. And here's hoping that somebody at News Int is up to speed with the 1906 Prevention of Corruption Act provisions for CORPORATE level charges, the Bribery Act 2010 and even, say, the U.S. Foreign Corrupt Practices Act. (Telegraph)
A. Consistently that it would be a criminal offence to pay someone in public office for information which they shouldn't have been passing out.
Q. Was that advice ever put in writing?
A. Not that I'm aware of, no.
It's not fair - there's just too much law to keep up with isn't there, Kelvin.
Who knows, there may even be laws which are supportive of others - whistleblowers or those pressured to become conduits for illegal payments. Or to prevent newspapers gaining future leverage over public officials compromised by accepting payment, or who have private indiscretions they don't want exposed. I don't know - and clearly you are no legal expert either.
But, Kelvin, you say you know exactly what the newsdesk would have done when that hypothetical Surrey policeman phoned in asking for "a few bob":
The news editor/editor would have agreed to the bargain in a shot. And, with the newspaper bar set a good deal lower than the judicial one, reporters would have used that leaked information to go back to the victims, heard their harrowing story, weighed the evidence and, I am sure, decided to adopt the old adage; publish and be damned.Oh, Kelvin, Kelvin, Kelvin - where do we start?
- Use illegally leaked information to locate and harass victims?
- Hear their harrowing stories - under pressure from hacks to tell all?
- Consider offering them money too? Thereby scuppering prosecutions by paying potential witnesses?
- Weigh the evidence? Who made you the best judge?
- Mightn't this have compromised any subsequent investigation whilst Savile was alive?
- Even if your hypothetical leak happened after Savile's death, would it not prejudice other investigations into Savile's enablers and colluders? Such as current Savile investigation, Operation Yewtree?
- And what about the effect on Savile's vulnerable victims? Brave enough to come forward, safe in the knowledge they could trust the police not to leak intimate details of their ordeals to the red tops?
Or do you know something the rest of us don't?
You really ought to think through the implications of your imaginary scenario, Kelvin. Hypothetically, your Surrey policeman could have been arrested for leaking that Savile information for "a few bob". In absolute horror, we would now be waiting to see Operation Yewtree in slow motion collision with Operation Elvedon - with fallout more spectacular than the Large Hadron Collider cranked up to maximum.
Consider that scenario, Neville and Neil. Think it through, Kelvin. Because THAT would be, in your words, "A very big story indeed".
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