Serving professional journalism since 1912

Magazine of the Chartered Institute of Journalists

Consultation from the Chartered Institute of Journalists to the Home Office’s proposals for legislation to counter State Threats (hostile state activity).

The Chartered Institute of Journalists is the world’s longest established professional association for journalists, and only such body with a Royal Charter. We represent staff and freelance journalists across all sectors of the media including local and national newspapers, periodicals, broadcasting and electronic publishing.

The Institute prides itself in being non-party political and expresses opinions only on matters that relate directly to our profession and industry, or to our members.

1.The Institute has consistently campaigned for and advised Parliament that there should be a statutory defence of public interest available to professional journalists and their sources in relation to the commission of criminal offences investigated in the context of the practice of journalism.

This would obviously exclude offences against the person.

2.The proposals put forward by the Home Office do not provide the protection needed in a democratic society to enable journalists acting in the public interest to publish information holding truth to power and providing scrutiny of abuse of power by government and private corporations and individuals.

Home Office report on proposed legislation to replace the Official Secrets Acts

3.Section 2 of the 1911 Official Secrets Act was repealed in 1989 because its use against civil servants and the journalists they were communicating to was discredited and brought government and the legal system into disrepute. 

The strict liability offence criminalising any communication of official information to a journalist with a maximum jail sentence of two years’ imprisonment criminalised freedom of expression that was necessary in a democratic society.

The draconian remedy operated as a Sword of Damocles causing grave injustice to many civil servants and in the end public and constitutional embarrassment to Parliament and the process of government when engaged with police enquiry and prosecution through the courts.

4.Sadly, executive government with the tacit connivance of Parliamentarians, but without proper democratic parliamentary approval through new legislation, adapted and conjured the medieval common law offence of misconduct in public office to be a substitute and more punitive resuscitation of Section 2 of the 1911 OSA. 

It did more damage to the public interest when engaged against civil servants and public officials and journalists from 2007 onwards.

It was wholly inappropriate to adapt an old common law offence carrying a maximum sentence of life imprisonment to criminalise journalist and source communications.

It was an example of creating a crime for which there had been no proper notice or warning- a clear breach of Article 7: no crime without law. 

The Institute believes its engagement against sources and journalists during the Metropolitan Police Operation Elveden Inquiry grossly breached Article 10 and English Common Law freedom of expression.

The damage to democracy in terrifying and disincentivising legitimate public interest communication between public officials and journalists has been incalculable and will last generations.

5. The Home Office and Law Commission have failed to separate and distinguish the threat of espionage, spying and subversion by hostile foreign powers from the problem of unjustifiable and non-public interest breaches of confidentiality by public officials to journalists.

The former is a threat to national security and should be treated as a criminal offence.

The latter should be dealt with as a civil wrong in law. 

The Institute believes that where disclosure by public officials to journalists can be proven on the balance of probabilities to damage the public interest, the limit of sanction should be constrained into the field of employment law with consequences of disciplinary sanctions in the workplace, dismissal and loss of pension rights.

The criminal law should only apply to public officials who acted with foreknowledge that their communications would damage clearly defined categories of national security on a clear and present danger threshold of understanding and proof.

6.The current proposals are authoritarian and will not command public confidence.

The offences envisaged if engaged with enquiry, prosecution and trials in the courts will generate gross injustice and will face defiance and opposition through the return of not guilty verdicts by juries.

This will delegitimize the rule of law. 

The reputation of the United Kingdom and its moral authority on human rights will be severely damaged overseas.

The Institute is currently daily campaigning for the release of Australian CGTN broadcaster Cheng Lei who has been detained and denied her freedom in China since August last year.

Up to 22nd July, 2021, Ms Cheng will have been denied liberty for 346 days.

She has been accused of ‘communicating state secrets overseas.’   This is how the Chinese Communist Party dominated authoritarian state defines the process of working as a professional journalist.

We continually campaign for the rights of individual journalists arbitrarily arrested, detained, prosecuted and jailed for communications and actions that are the everyday expectation and rights of any journalist professionally working in a dignified and stable democracy.

We say to those authoritarian states ‘Journalism should never be a crime.’  What the Home Office proposes in its consultation document and the Law Commission has encouraged with its previous recommendations is to achieve this terrible and unacceptable objective. 

Ministerial Foreword to Home Office recommendations for laws to counter state threat

CIoJ President Professor Tim Crook is a long-standing academic specialising in media law and has written several books on the subject.

He said: ‘These proposals for laws to counter state threats will succeed only in threatening democracy- the very opposite of what the government wants to achieve.’