The guidelines will be relevant when prosecutors are considering whether to charge journalists – or those who interact with journalists – with criminal offences that may have been committed in the course of their work.
Keir Starmer, the Director of Public Prosecutions, explained: “The public consultation on the guidelines has been a very useful exercise. The purpose of the guidelines is to strike the right balance between the important public interest in a free press and the need to prosecute serious wrongdoing. That’s not an easy exercise, but I’m pleased that the overwhelming majority of responses supported the approach taken in the guidelines, in particular the requirement that prosecutors consider whether the public interest served by the journalistic conduct in question outweighs the overall criminality before bringing criminal proceedings.”
The DPP continued: “These guidelines will ensure a consistent approach by prosecutors while, at the same time, providing transparency as to the approach the Crown Prosecution Service (CPS) will take when considering these important and often finely balanced cases.”
Starmer went on to say: “During the consultation period I have held meetings with the Press Complaints Commission, Ofcom and the Information Commissioner’s Office in an attempt to build consensus around the guidelines. I’m pleased to report that Lord Hunt, Ed Richards and Christopher Graham all support the guidelines.”
Changes to the guidelines
Changes to the guidelines incorporated following extensive feedback include:
- Asking prosecutors to consider what information was available to the journalist at the start of their investigation in relation to the motivation of the suspect
- More detail about what might be considered as an “important matter of public debate” with examples of ‘serious impropriety’, ‘significant unethical conduct’ and ‘significant incompetence’
- Additional detail on the section about privacy
Responses and feedback from the public consultation came from representatives of both the media and victims, and from legal and academic experts.
Starmer added: “A number of respondents suggested that more detail about what was meant by “an important matter of public debate” should be included in the guidelines and we have now added three specific examples, namely serious impropriety, significant unethical conduct and significant incompetence. However, I would like to emphasise that these are only examples. Each case must be considered on its individual facts and merits.”
Considering the evidence
As in all cases, prosecutors must consider whether or not there is sufficient evidence for a realistic prospect of conviction, and if so, then whether it’s in the public interest to prosecute. That will require prosecutors to consider any defences that may be advanced.
If there is sufficient evidence for a realistic prospect of conviction, prosecutors are asked to consider the critical question of whether the public interest served by the conduct in question outweighs the overall criminality. If the answer is: ‘Yes’, it’s less likely that a prosecution will be required.
This is a three stage process:
- assessing the public interest served by the conduct in question
- assessing the overall criminality, and then…
- weighing these two considerations
In looking at the first stage, prosecutors are asked to consider factors, including conduct which is capable of:
(a) disclosing that a criminal offence has been committed, is being committed or is likely to be committed
(b) disclosing that a person has failed, is failing, or is likely to fail to comply with any legal obligation to which s/he is subject
(c) disclosing that a miscarriage of justice has occurred, is occurring or is likely to occur
(d) raising or contributing to an important matter of public debate – there is no exhaustive definition of an important matter of public debate, but examples include public debate about serious impropriety, significant unethical conduct and significant incompetence (which affects the public)
(e) disclosing that anything falling within any one of the above is being, or is likely to be concealed
When assessing the overall criminality in the second stage, non-exhaustive factors likely to be relevant are as follows:
(a) The impact on the victim(s) of the conduct in question, including the consequences for the victim(s)
(b) Whether the victim was under 18 or in a vulnerable position
(c) The overall loss and damage caused by the conduct in question
(d) Whether the conduct was part of a repeated or routine pattern of behaviour or likely to continue
(e) Whether there was any element of corruption in the conduct in question
(f) Whether the conduct in question included the use of threats, harassment or intimidation
(g) The impact on any course of justice, for example whether a criminal investigation or proceedings may have been put in jeopardy
(h) The motivation of the suspect insofar as it can be ascertained (examples might range from malice or financial gain at one extreme to a belief that the conduct would be in the public interest at the other, taking into account the information available to the suspect at the time)
(i) Whether the public interest in question could equally well have been served by some lawful means having regard to all the circumstances in the particular case.
Each case to be considered on its own merits
Weighing the public interest served by the conduct against the overall criminality is not an arithmetical exercise of adding up factors on each side, but rather prosecutors are asked to consider each case on its own facts.
The Rt Hon Lord Hunt of Wirral has said the following: “Guidance from the Crown Prosecution Service in assessing the public interest in cases affecting the media is most welcome. I very much hope this will help to generate a greater understanding and appreciation of the public interest, and also of the need to take it into account in editorial decision-making.”
Christopher Graham of the Information Commissioner’s Office commented: “The Commissioner welcomes the guidelines and considers that they will help to ensure a consistent approach in assessing the public interest in cases affecting the media.”
Guidance on social media cases
ACPO has responded to the DPP’s announcement regarding guidance to prosecutors on social media cases.
ACPO lead for communications, chief constable Andy Trotter, said: “ACPO welcomes the intention to issue guidance to police and prosecutors and we look forward to participating in the consultation process. Many offensive comments are made every day on social media, and guidance will assist the police to focus on the most serious matters.”
Trotter added: “There’s not only the matter of principle to be addressed but also the practicality of dealing with thousands of potential offences.”