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DPP guidelines on when a journalist can use the public interest defence should help cases stay out of court
In criminal law, there is no overriding ’public interest’ defence. Nor is there a definition of what constitutes the public interest. Thus, save for limited statutory exceptions (such as the Data Protection Act 1998), the primary forum for arguing public interest is not necessarily the courtroom.
But can public interest be raised outside the courtroom, and if so, when and how in the context of the Director of Public Prosecutions’ (DPP) interim guidelines?
On 18 April 2012, the DPP issued interim guidelines for prosecutors on assessing the public interest in cases affecting the media. This sets out the approach to be taken by prosecutors on whether to charge journalists with criminal offences that may be committed in the course of their work. The guidelines are non-exhaustive and open to consultation. The issue of public interest is central.
The DPP has proposed the following examples of conduct capable of serving the public interest: conduct capable of disclosing that a criminal offence has been committed, is being committed or is likely to be committed; conduct capable of disclosing that a person has failed, is failing or is likely to fail to comply with any legal obligation to which they are subject; conduct capable of disclosing that a miscarriage of justice has occurred, is occurring or is likely to occur; conduct capable of raising or contributing to an important matter of public debate; and conduct capable of disclosing that anything falling within any one of the above is being, or is likely to be, deliberately concealed.
There is no express reference to a journalist’s state of mind. Is there a basis in criminal law for advancing a journalist’s ’reasonable belief’ as relevant to the public interest?
In Terry v Persons Unknown Mr Justice Tugendhat was open to argument in civil proceedings that the reasonable belief of a journalist could be relevant to the Article 8/Article 10 balancing exercise. The guidance of the Press Complaints Commission refers to such a belief.
Any such belief must be ’responsible’ (see Jameel & Anor v Wall Street Journal Europe). In other words, in this context there should be reasoned objective grounds for such belief. This should be accompanied by an audit trail that shows the rigorous and structured responsibility with which such investigative journalism has been undertaken at journalist and editorial level (see the House of Lords Select Committee report on the future of investigative journalism).
In summary, as to the public interest, there should be presented to the police, before any decision as to prosecution, the case for the journalist. The ’hearing’ in this context is not in a courtroom; in reality it is the prosecutor sitting at his desk, reading all the evidence.
Thus the case for the journalist on public interest should be prepared thoroughly, including reference to any potentially relevant code of practice, case law as to public interest, and parallel analysis of those limited statutory provisions where public interest is expressly provided as a defence.