The acquittal of four Sun journalists on Friday feels like a watershed in the struggle between journalists and the UK criminal justice system.
It underlines the fact that juries appear to be as confused as the defendants about why reporters are in the criminal dock at the Old Bailey for doing their job.
Before the current round of prosecutions a jury has never before been required to decide whether a journalist paying for a story can commit the offence of Conspiracy to Commit Misconduct in a Public Office.
The result of a hugely destructive and expensive experiment going back three years is that the charge does not work.
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Journalists aren’t in public office. While public officials selling stories may be motivated by greed, the journalists are driven by finding newsworthy stories and sharing them with the public.
In effect, they are being hit by the full crushing weight of the criminal justice system for doing their duty as they saw it.
Juries are being asked to become legislators – to write the law of the land. It is an impossible situation for them and most are saying that they do not think these defendants are criminals or that they don't know.
Looking at the trials that have taken place so far over payments by journalists to public officials there have been nine not-guilty verdicts, two guilty verdicts and seven individuals who face a retrial after the jury could not decide.
This is a train wreck that began with the decision by News Corp’s Management and Standards Committee to release emails to police in 2011 revealing payments made by its journalists to public officials.
We may never know why it committed the most colossal breach of source confidentiality in UK journalism history. It happened as the hacking scandal had just prompted the closure of the News of the World and the company’s surviving assets looked in danger.
Company lawyers said they wanted to “drain the swamp”. But perhaps it should be noted that scum generally rises to the surface.
Once in receipt of this evidence the police had a duty to pursue it. But this does not forgive the heavy-handed dawn raids and the toll taken on individuals and their families by the glacial pace of investigations.
It also does not explain the proportionality of devoting more resources to prosecuting journalists writing true stories about matters of public interest than are given to murder inquiries.
The CPS evidently believed that it had a realistic prospect of convictions when these cases began. But now it has to look at the evidence and reconsider.
From the top to the bottom of The Sun there does not seem to have been any realisation that paying a state employee for a story tip was against the law.
Remember there was not one word about it MacNae’s Essential Law for Journalists or in the Editors’ Code.
So it is understandable that entirely honest and law-abiding journalists acted in the way they did. They do not deserve the punishment that has been meted out to them.
Parliament has now legislated in this area and the Bribery Act 2010, rightly or wrongly, makes it an offence punishable by up to ten years in prison to pay someone for information which they are under a duty not to disclose under the terms of their employment.
If the CPS wants to prosecute journalists under this legislation, which came into force in July 2011, then it should do so. But for offences before that date it needs to stop using misconduct in a public office against journalists because it is not working.
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