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May 27, 2015

Elveden defence lawyer: A ‘more cautious press’ unable to uncover public sector wrongdoing would be a ‘real tragedy’

Mark Abbott, a criminal defence lawyer and partner at Blaser Mills law firm, acted as former Sun managing editor Graham Dudman's solicitor after he was arrested and charged under Operation Elveden

Imagine opening your door early in the morning to ten police officers who then raid your home (in front of your bewildered family), take away your passport, arrest you and put you on bail for the best part of three and a half years.

This wouldn’t be a surprise if you’d recently committed a crime.

But what if this happened just because you had done your job?

This was the situation in which my client Graham Dudman, the former managing editor of The Sun, found himself in January 2012.

He was one of more than 23 Sun journalists arrested as part of the Metropolitan Police’s Operation Elveden, which centred on allegations of inappropriate payments to officials and cost the public purse an eye-watering £20m (the widely reported estimate).

My client was eventually charged with four counts of conspiring to commit misconduct in public office for making and approving payments to officials in return for news stories.

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In January, Graham’s first trial at Kingston Crown Court ended with him cleared of two counts and the jury hung on his remaining two charges. The jury foreman had barely sat down before prosecuting counsel Oliver Glasgow got to his feet to tell the court the Crown was seeking a retrial.

Last month, the prosecution sang a very different tune as Graham was formally acquitted at the Old Bailey after a CPS review of all Operation Elveden cases concluded it was no longer in the public interest to continue his prosecution.

During a hearing lasting barely two minutes in Court Three, the Crown announced it was no longer offering any evidence against Graham and Judge Richard Marks QC formally entered two verdicts of not guilty.

Picture: Graham Dudman speaking outside the Old Bailey after charges against him were dropped

The vast amounts of public money and huge policing resources dedicated to bringing this case to trial raises considerable questions about how the case was conducted, how we expect the press to operate and whether, ultimately, this prosecution was in the public interest.

During a 30-year career in journalism starting in local papers, and before moving to the Daily Mail, Daily Express and The Sun, Graham had a record of breaking news. Many of his stories were the result of investigative journalism and, most importantly, were in the public interest. His investigation into security lapses at Heathrow after the Lockerbie tragedy triggered new safety rules at all UK airports.

Every story the police accused Graham of paying for or approving payment was true and in the public interest. They included the revelation that the police family liaison officer in the Holly Wells and Jessica Chapman murder case had been arrested for downloading indecent images of children (for which he was later jailed), and the suicide in prison of a convicted killer.

It isn’t a surprise to anyone that journalists have key contacts whom they get to know well and rely upon to help them build or corroborate a story. Relationship building is part and parcel of being in the profession.

Similarly, it is known that many investigative journalists pay some sources for information. What has been less clear is who, from a legal standpoint should and should not receive payment.

It is telling that until recently, the media law ‘bible’ Essential Law for Journalists did not cover the issue of payment, let alone what was or was not permissible under law. It was this lack of knowledge the law that formed a part of our defence.

The definition of who constitutes a public official, which has become clearer for everyone as a result of the Elveden cases, will be regarded as basic knowledge for all journalists in the future. Updated guidance in Essential Law for Journalists means there will now be no grey area for misunderstanding or interpretation.

One unusual aspect of this case was the considerable delay in bringing the case to trial. My client was on bail for 19 months before he was charged and endured a total of 1,176 days from his arrest to the CPS announcement they had abandoned his prosecution.

He effectively had to put his life on hold for the duration of his bail. In my view, the police need to be as decisive about whether or not to prosecute in cases like these as they would in any other criminal case.

The failure of this and other Operation Elveden prosecutions of journalists is perhaps symptomatic of the lack of a definitive legal definition of exactly what is the public interest.

What is clear is that the press will operate differently as a result of Operation Elveden. I would expect news organisations to update their internal training, policies and procedures around conduct and payment. I know that things now operate very differently at The Sun.

Some journalists may think twice about using certain individuals to help verify stories but it would be a real tragedy if, as a result of Operation Elveden, we saw a more cautious press unable to uncover stories of corruption or wrongdoing in our public institutions.

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