Speech by CIoJ Vice President Tim Crook at the seminar on ‘Free speech vs misconduct in public office: Protecting Journalists and Whistleblower sources from prosecution’ hosted by his legal team at Garden Court Chambers 21st November 2017.
Former Belmarsh Prison officer Robert Norman contacted the Daily Mirror in 2006 to expose serious public interest issues of declining security, cutbacks, catastrophic decline of prison inmate and staff safety, and the failure to properly contain and manage convicted terrorists.
He did so in the belief he would receive protection of journalist source confidentiality set out in section 10 of the 1981 Contempt of Court Act, longstanding English common law, and robust declarations of its importance by the European Court of Human Rights in Strasbourg.
I need to define this legal right and protection with the words of Lord Justice ‘Tasker’ Watkins- a Court of Appeal judge whose rulings I had the privilege of reporting on many occasions.
In a case from 1981 called Verrall v Great Yarmouth Borough Council he observed that ‘much blood’ had to be ‘spilt over the centuries’ to achieve a freedom of speech right as a ‘fundamental freedom’ that England could pride itself on maintaining.’
It’s often quoted in set-piece lectures by senior judges.
What the judge said profoundly resonated with me and my family at the time. Tasker Watkins had won the Victoria Cross as an infantry officer fighting in the Battle of Normandy in 1944. My father, also a lawyer, had fought in that battle, lost many close friends and was evacuated in the wounded list in September 1944.
He was a humble solicitor, but echoed the importance of red lines and last resort bulwarks that protect us from abuse of power and tyranny.
Indeed, he often used to say that the most important safeguard in a democratic society is for journalists to ask unpopular questions and lawyers to defend unpopular causes.
That can’t be done without sources such as Robert Norman. Lawyers are left flapping and journalists droning in the wind without them.
His information and consultation had the potential to save lives. He was serving the interests of democracy.
This has been proved by the subsequent developing crisis of murders by inmates, widespread propagandising in prisons of terrorist ideology, growing suicides by inmates, repeated riots, catastrophic over-crowding, widespread drug-taking, and disastrous failures in security.
He did not ask for remuneration. But he was persuaded to accept compensation because he was a source who risked his employment through exposure.
In his case he carried the additional risk of violent attack and reprisal from inmates had his media whistle-blowing been revealed while he still worked in the prison system.
The custom and practice of competitive British media rewarding and providing material and financial support for confidential sources was historical and widely known. The popular tabloids advertised explicitly that they paid for important stories.
The novelist Charles Dickens paid Metropolitan police sources when he edited and founded magazines and newspapers in the 19th century.
Over a period of five years Mr Norman received an average of two thousand pounds a year in his role as a consultant informant on the failures of Britain’s prison system.
This was substantially less than the amount of money The Daily Telegraph paid a source for all the raw data on Parliamentary expenses- a story that was not about saving lives and public welfare, but the indulgences of politicians.
He received a little bit less than the amount the Sunday Times paid for documents to two sources in their investigation into Thalidomide. But that was 50 years ago. And £10,500 was worth a lot more then.
Robert Norman had a legitimate expectation under British law that his role as a confidential public interest source for journalism would be protected.
He only came forward on the understanding that he would be protected as far as possible by his journalist contact, Stephen Moyes, the publishing newspapers, the Daily Mirror and News of the World, and, indeed, the British legal system.
Under the Police and Criminal Evidence Act 1984 any attempt by the police or any other state body wishing to breach that confidentiality had to be tested by an independent hearing before a judge.
Article 10 freedom of expression rights and the time-honoured need to preserve protection of sources had to be a paramount consideration.
In my opinion, the protection of journalist sources is a legal duty and obligation by journalist, publisher and legal system.
These players are intertwined and cannot be distinguished.
Otherwise protection of journalist sources has no pragmatic effect.
The assertion of the principle is mere lip service.
It would be the same as Robert Mugabe and Vladimir Putin declaring their commitment to media freedom.
Mr Moyes always kept his side of this vital social and constitutional contract.
And Robert Norman’s protection could only be sustained if the publishers and the legal system also did their duty.
But they did not. Trinity Mirror betrayed him by voluntarily giving the Metropolitan Police all the evidence they needed to add him to Operation Elveden– a police inquiry into civil servant journalism sources in the wake of the Leveson Inquiry.
The legal system did not protect him when evidence of journalist and source contact at the News of the World came before a judge on the police production order application.
The Leveson Inquiry and its cheer-leaders condoned and encouraged the criminalisation of any contact between public officials and journalists.
Where there had been compensatory payments this was demonized and constructed as corruption.
The Metropolitan Police and Directors of Public Prosecutions used an obscure common law offence called ‘misconduct in public office’ to aggressively arrest, charge and prosecute journalists and their sources.
Millions of pounds were spent pursuing trials at the Old Bailey and other criminal courts.
34 journalists were arrested, or charged, but none were successfully convicted at trial.
32 of their sources were convicted of selling information to journalists and many of them were jailed including Robert Norman.
I think Operation Elveden reveals the police and United Kingdom state as abject hypocrites.
They deny public interest legitimacy for journalists rewarding and protecting their sources and at the same time spend tens of millions of pounds to criminal informants often participating and performing in serious and organised crime.
The legal system gives the state investigators’ informant system total protection and no reliable and transparent system of over-sight.
The amount of money spent by police and intelligence agencies for information is staggering.
Over the past 5 years UK police forces have paid informants £20 million.
If I were using the language of Operation Elveden, I could say the Metropolitan Police paid out 5.2 million pounds in bungs between 2011 and 2016.
The intelligence agencies most likely spend tens of millions of pounds more.
All done in the public interest no doubt. I repeat criminalising and demonising journalist payment to sources is abject hypocrisy.
What the state does for public interest and welfare to many people with far more doubtful characters than journalists meet as sources in everyday life also morally and legally legitimises a time-honoured journalism custom and practice.
He and his fellow sources had no idea that their whistle-blowing was a criminal offence, and their alleged wrongdoing had not been properly and clearly proscribed by law.
At worst, they thought they might lose their jobs and careers if found out. Their arrest, prosecution, and conviction were disproportionate.
There is a vital pressing social need for confidential journalist sources acting in the public interest to know that they will be protected by journalists, publishers and judiciary.
The Chartered Institute of Journalists recently added a new clause to its Code of Conduct declaring that ‘You should be able to compensate sources of any kind in proportion to the public interest value of their information and the risks they are undertaking.‘
This recognizes that any kind of source whether public official or private citizen sometimes needs financial protection, compensation, security and accommodation.
Would anybody seriously argue against the payment of £10,000 by a media organization to a source, even a public official, if such disclosure could have prevented the Grenfell Tower disaster that claimed 71 lives?
Operation Elveden cannot be said to have served any legitimate aim since it demolished and catastrophically undermined the democratic necessity of protecting journalist sources.
Its pursuit through the courts fundamentally damaged and undermined the role of media as watchdogs of society. It has utterly discouraged the free flow of information to journalists.
And it has created a massive chilling effect by choking off the confidence of public official sources to communicate to journalists particularly where their whistle-blowing could save lives and protect the wider welfare of the community.