A leading newspaper lawyer has called for the offence of Misconduct in Public Office to be scrapped in regard to journalists.
Head of editorial legal at Associated Newspapers Liz Hartley was speaking at a symposium organised by the Law Commission as part of a review of the controversial law.
In recent years the ancient common law offence has been used to arrest and/or charge 34 journalists. But of the 29 charged over payments to public officials, just one conviction at trial stands.
The rest were either acquitted by juries or had the case against them abandoned. One journalist admitted the offence.
According to the News Media Association Hartley said: "The ECHR and domestic Courts have recognised the vital importance of the role of the press as the eyes and ears of the public – the public watchdog.
"The conduct leading to prosecutions of journalists for this offence is concerned with the acquisition and dissemination of information, – their job -, what we expect them to do on our behalf. It is not, as for other convictions for this offence, the supply of prohibited substances to prisoners by prison staff, or sexual relations with vulnerable adults by police, or the death of a man through a police officer standing by and failing to intervene.
"Journalists are not above the law. There are several statutory offences in this context which of course apply to journalists, as well as to everyone else. The Bribery Act is at the forefront of everyone’s mind, and we are equally very alive to the Data Protection Act and Computer Misuse Act.
“However with the exception of the DPA, none of these acts provide for a public interest defence for journalists. This is a very real problem, both for the press, its legal advisers, whistleblowers and prosecutors. Such a defence was supported by Sir Keir Starmer in an interview in the Times last year.
"So, there are criminal offences which regulate the acquisition and publication of information. For these reasons, I would argue that this offence should not be continued even in an amended form for journalists.
“With all of its uncertainties and ambiguity, it is no longer fit for purpose. Most journalists would never have heard of this offence, and if they had tried to research it prior to the Chapman case in the Court of Appeal [in 2015] they would have been none the wiser regarding their potential exposure to prosecution.”
The government Law Commission is currently consulting on how the law should change.
In its consultation document it says: “The offence is widely considered to be ill-defined and has been subject to recent criticism by the government, the Court of Appeal, the press and legal academics.
“Statistics suggest that more people are being accused of misconduct in public office while fewer of those accusations lead to convictions. One possible reason is that the lack of clear definition of the offence renders it difficult to apply.”