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February 11, 2013

The legal case for protecting April Casburn

The idea that a police detective rings up a journalist in a fit of pique while shopping to complain about force politics and should end up in prison for 15 months is beyond belief.

I declare an interest in that I worked alongside the journalist who took the call, Tim Wood, in crime reporting for many years and so I’m biased in sympathising with his position.

The Met Police, DPP, judge and jury at the Old Bailey did their duty according to the law in relation to DCI April Casburn’s trial for misconduct in public office. I have no criticism to make of any of them.

But just as the rule of law protected The Guardian, Observer and reporter Martin Bright in their dealings with ex-MI5 officer David Shayler in 2001, the time-honoured doctrine of protection of journalists’ sources should have shielded DCI Casburn from the disaster awaiting her.

I have known calls and approaches like hers in my career in journalism. They are preliminary contacts for the purposes of journalism. Motives and emotions are often mixed. It is not unknown for the source to have second thoughts and stand you up. Sometimes you protect the sources from themselves and do not even use the information provided.

Her trial quite rightly forensically examined whether she was asking for money.

But the fact she was primarily complaining about the diversion of police resources from counter-terrorism to phone-hacking was an acute public interest issue and meant her call to the NoW was for the purposes of journalism under section 11(3) of the Police and Criminal Evidence Act 1984.

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This means the email Tim Wood wrote at the News of the World was protected confidential material despite also being evidence of motivation for crime. There should have been a production order hearing before a judge. Tim Wood’s privacy rights under Article 8 and freedom of expression rights under Article 10 of the Human Rights Act and the European Convention should have been represented.

British legal case law, common law and Strasbourg precedents from Goodwin 1996, Interbrew 2009, Autoweek 2010, to Telegraaf Media in 2012, make this clear. Protection of journalistic sources is one of the basic conditions for press freedom and the conduct of the source can never be decisive in determining whether a disclosure order ought to be made.

The miner’s son and Victoria Cross holder Lord Justice Tasker Watkins talked in 1981 of “the fundamental freedom which this country has prided itself on maintaining, and for which much blood has been spilt over the centuries, namely freedom of speech”. That means the state must not use the law to deter sources from contacting journalists, nor punish journalists and their sources for talking to each other.

But the continuing demonisation of popular tabloid journalism as a result of the hacking scandal means that at the moment there is no political, social or cultural sympathy for the principle in this context.

I fear if DCI Casburn had rung up the News of the World to talk about Mickey Mouse she would have been convicted of having verbal intercourse with the devil and metaphorically incinerated like the persecuted witches of early 17th century England.

The Leveson Report recommends ending journalists’ protection of sources privilege when sources come with suspicion of criminal iniquity.

The surrendering of the email that identified April Casburn sends a terrible message to anyone thinking of contacting a journalist about anything, and contributes to the firestorm of prejudice and hatred against a profession that is supposed to be a watchdog of democracy.

I fear there are few fire-brakes on the horizon and the conflagration will claim many more victims.l

Tim Crook is a senior lecturer in communications at Goldsmiths, University of London

MORE:

April Casburn family says her jailing will scare off whistleblowers

The Seven-minute phone call that led to 15 months in jail for Met detective

Comment: Why News Corp risks undermining our most basic principle

 

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