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April 20, 2015updated 23 Apr 2015 1:20pm

The Met Police, CPS and News Corp’s MSC have taken a wrecking ball to tabloid journalism

By Dominic Ponsford

Since it launched in June 2011 Operation Elveden has taken a wrecking ball to tabloid journalism as we once knew it.

An arbitrary decision was taken somewhere that payments for stories to any public employee, not just policemen, was against the law. At a stroke, a generation of journalists were criminalised.

From what we have heard at a succession of trials no-one at The Sun, from the most senior and experienced journalist to the most junior straight out of their training, had any idea this was the case.

The CPS finally reversed this decision on Friday, indicating that it would now require "a long-term relationship with a corrupt police officer by making payments" for a journalist to be prosecuted.

If only the police and CPS had sought legal guidance in advance of the tabloid witch-hunt, so much damage could have been avoided.

But in the wake of the hacking scandal and the Leveson Inquiry, the political pressure was too great. There was public outrage over the behaviour of News UK and something had to be done.

As has been said before, the police and CPS should hang their heads in shame for not being able to step back and take an objective look at the evidence and the alleged wrongs committed before deciding on a proportional course of action.

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With some 34 journalists arrested and/or charged (and just one conviction) the strain on honest journalists – left in legal limbo for nearly four years in some cases – as well as their partners and children has been immense.

Some careers may never recover. Three or four years is a long time to spend out of modern journalism.

Some have already been financially ruined, such as the former News of the World journalist  – whose defence was not supported by News UK so who instead had to rely on the generosity of colleagues just to meet her legal aid contribution (the £11,000 target was reached in just three days).

National newspaper journalists are resilient characters. Those who return to the frontline will do so carrying a wealth of priceless insight into the criminal justice system. They all still have a huge amount to offer and I wish them well.

The wider cost to society is of the stories that will no longer be told. Some public officials will only take the risk of leaking confidential information if they feel they are going to be financially rewarded for doing so. They would of course be mad do so now.

So the next time a killer gets special treatment in prison, a fox attacks children in a primary school or there is an unreported suicide in prison custody we may not hear about it.

Payment or no payment, we can expect an extreme reluctance for whistleblowers in the public sector to talk to journalists in future.

Numerous police officers who sought no money for information which was released on matters of clear public interest have been prosecuted and sacked – not least the Plebgate leakers.

The sources themselves have of course paid the heaviest price. Some 28 have been prosecuted, and 21 convicted, according to the CPS. Many have received prison terms.

Some have been treated abominably. The first Elveden convict, detective chief inspector April Casburn, was jailed for 15 months in 2013 after calling the News of the World with a story about anti-terrorism resources were being used to investigate phone-hacking.

No story appeared. She was paid nothing. Because a journalist said he believed she wanted money in an email to colleagues it was enough to throw her on the scrapheap. She has lost much of her police pension and now works in a shoe repair shop.

The villains of the piece

The Met Police has not emerged well out of all this. The zeal with which it conducted initial inquiries (the heavy-handed dawn raids in front of distressed families). The unnecessary strain and upset caused by the glacial pace of investigations. The lack of common sense which led to so many unnecessary arrests, and long delays before dropping charges which had been brought in error. The eagerness with which officers have sat through whole trials apparently keen to see journalists convicted (rather than, as you might expect, moving on to work on other cases). It all leaves a sour taste for many journalists.

The Crown Prosecution Service takes a bigger share of the blame. The CPS pursued cases were the information divulged was “tittle tattle” and where no serious harm had been done. With more serious stories they failed to take into account the public interest – both in the information divulged and the wider overriding importance of freedom of expression and press freedom.

Both the Met Police and CPS and pursued Elveden with seeming disregard for normal notions of proportionality. The biggest investigation in British criminal history was conducted against alleged white collar criminals, mostly with no previous records and with no apparently victims (aside from the reputation of, say, HM Prison Service). More money has been spent pursuing journalists who paid tips in order to write true stories about matters of public interest than would normally be spent trying to solve a murder.

The other villain of the piece is of course News Corp, which betrayed its own journalists and their sources by giving their confidential emails to the police. The company not only did not put up a fight when it came to protecting sources, it volunteered the information.

Operation Elveden began in June 2011 when News International (now News UK) released information implicating certain News of the World employees in paying police officers for information.

At the time the company was facing increasing claims of a cover-up over phone-hacking, so released this information about related matters (presumably the allegations that Andy Coulson and Clive Goodman paid a police contact for royal telephone directories).

The company's co-operation with police snowballed after The Guardian front page of 5 July 2011 revealing that the News of the World hacked the phone messages of Milly Dowler.

Within a week the News of the World was no more and News International was facing a fight for survival.

As Sir Brian Leveson put it, “containment was no longer an option” – parent company News Corp had to “grab the nettle”.

It set up the Management and Standards Committee led by Lord Grabiner QC who reported to News Corp’s top lawyer in New York – first Joel Klein and then Gerson Zweifach. News Corp executives Will Lewis and Simon Greenberg also worked on the MSC full-time. It had full independence and apparently full authority to "drain the swamp" as one News Corp lawyer reportedly put it.

And it set about passing on information which would see some 22 Sun journalists arrested and many more of their sources.

The MSC may have been motivated by fear of a corporate prosecution in the US, under the Foreign Corrupt Practices Act (News Corp is incorporated in the US).

Nigel Rumfitt QC defending Sun head of News Chris Pharo at Kingston Crown Court last year said he believed the MSC was “engaged in a wholesale cover-up for more senior people at the company at the expense of the more junior”. The theory goes that perhaps tying up prosecutors with so many foot  soldiers would stave off a corporate prosecution.

In evidence to Leveson, deputy assistant commissioner of the Met Police Sue Akers said: “The MSC’s role and remit is important to Operation Elveden as current legislation would make it difficult, if not impossible, for police to access material of the type it is seeking without that assistance.”

She also said: "We've got a co-operative working relationship with them, and they are the people who have passed us information upon which we've made arrests, as well as supplying information to us when we've made requests.”

News Corp should have fought tooth and nail to protect the identity of its sources arguing that democracy and society will be poorer in the long run if this sacred principle is ignored. In the panic following the closure of the News of the World, News Corp's MSC may have seen its role as cutting off a limb in order to save the patient – but it has been at the expense of long-term damage to its journalistic reputation.

The future

The UK newspaper industry (and News UK in particular) needs to find a way to reassert the sanctity of the journalist-source relationship.

Individual journalists must play their part by ensuring that sensitive public sector sources are never contacted via work emails, or via traceable mobiles (unless the source are themselves calling from a phone-box or non-traceable mobile). Ideally we should acquaint ourselves with encryption software, or better still meet face to face. Even if News International had resisted police bids to view work emails, it might have been forced to hand over the information anyway under the Police and Criminal Evidence Act.

Any non-corrupt government should want to encourage public sector whistleblowers. So whoever forms the next government should take up the excellent suggestion from the Lib Dems to create a new public interest defence for the Bribery Act.

Journalists who believe they are acting in the public interest, and can show they could not get the information any other way, should have nothing to fear from paying public officials for stories.

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