The Lord Chancellor’s proposals to outlaw payments by the media to witnesses, to jail journalists and to make newspapers pay millions of pounds if they cause trials to be abandoned have met with strong opposition from editors and the Press Complaints Commission.
They think self-regulation on payments has proved tough and effective; that there is no evidence to show trials have been prejudiced because of such payments; and, in the case of the Society of Editors, they believe legislation could be counter-productive. There is concern that local papers might have to give up covering trials because they could face bankruptcy if a mistake led a trial to collapse.
This week the PCC was making a ruling of its own on whether the Daily Mail, The Mail on Sunday, News of the World and the Sunday People had breached the Code of Practice by offering payments to young witnesses in the case of Canadian schoolteacher Amy Gehring, accused but acquitted of having sex with her pupils.
Industry speculation before the commission’s meeting was that the terms of the code, with regard to public interest and transparency and not making payments conditional on a guilty verdict , had clearly been met by the newspapers concerned and they would quite likely be found not in breach of the code.
It was the Gehring case, plus trials such as those of Rose West and Gary Glitter, which have prompted the Government to move on introducing a law which could see journalists jailed for up to two years or heavily fined. It claims offers of payment to witnesses in those cases have undermined public confidence in the judicial system because they call into question the motives of witnesses and the validity of their evidence.
Sun editor David Yelland thinks that, in the face of such a threat, newspapers should respond "as an industry" because the proposal affects all journalists. He is concerned that, unlike in the US, there is no protection for journalists written into the constitution.
"It is an unnecessary threat. There have been very few, if any, threats to the rule of law as a result of what newspapers have done," he said. "We don’t need more laws. There are more than enough out there to stop us crossing the line.
"Colin Myler lost his job as the result of the Sunday Mirror’s mistake [an article led to the collapse of the Leeds footballers’ trial] and even under current legislation he could have gone to jail. But we do have to watch the way we approach witnesses. It’s not on to offer huge amounts to witnesses."
A senior source at Associated Newspapers pointed out there was already a law preventing people from interfering with a witness. "We cannot see the need, since the law is not broken, to mend it again," he said.
"We regard the proposals as threatening and we can’t believe that if a trial is suspended because of a paper’s genuine mistake it would have to pick up all the costs. That could mean that local newspapers would cease in one of their prime duties – to report open justice. They could be facing a bill of maybe millions of pounds and it could bankrupt them. Their response to such an outrageous threat might be that they can’t afford to cover trials."
Acting PCC chairman Robert Pinker believes there is an argument to be made when legislative proposals impinge on press freedom and public interest.
"The rules contained in the Code of Practice about payments to witnesses in criminal trials are tough and clear." he said.
"It makes clear that any payments must be in the public interest, must not in any way influence the evidence of a witness and must be disclosed to prosecution and defence when a witness is cited to give evidence."
Self-regulation had worked effectively, he asserted. Since 1995, there had been only one breach of the code and only a handful of cases in 50 years.
The Society of Editors believes a new law on payments is unnecessary and could be counter productive.
Executive director Bob Satchwell said: "However much judges and Government ministers might find it distasteful, sometimes payments to witnesses have achieved results where otherwise there might have been no justice.
"The offer of rewards for information leading to a conviction has long been an effective aid to justice, usually with the active encouragement of the police. Does this mean rewards, part of justice since history began, are to be abandoned?"
He also said the media must be allowed to defend itself before being ordered to pay for aborted trials. "You cannot expect the media to pay for an over-reactive judge," he said.
Lord Irvine says media payments to witnesses are objectionable and "create a real risk of encouraging witnesses to exaggerate their evidence in court so as to make it more newsworthy or to withhold relevant evidence from the court in order to give newspapers exclusive coverage later on".
There will not be a blanket ban – payments can be made after a trial and the media will not be punished when it has made payments not knowing that criminal proceedings are imminent or if the person paid will be a witness.
By Jean Morgan