On the same day that Damian Green’s arrest made front page headlines, the newspapers were reporting the acquittal of one of their own – journalist Sally Murrer.
Quoted in some articles that drew parallels between Green’s arrest and her own prosecution, Sally was in a unique position to comment and sympathise with the MP, having herself been charged with ‘aiding and abetting misconduct in a public office’ until the case against her collapsed after a ruling by Mr Justice Southwell at Kingston Crown Court on the eve of trial.
The Murrer case, centring on freedom of expression, has been a cause célèbre in journalists’ circles in the same way that Green’s arrest has outraged many as an attack on parliamentary privilege. Following her acquittal, I described Murrer’s prosecution as a lurch towards a police state.
The arrest of the shadow minister shows that the Murrer case was not unique and revealed a worrying anti-democratic streak in the criminal investigation of breaches of confidence.
Murrer is a journalist for the Milton Keynes Citizen, a small regional paper. Since May last year she has been embroiled in a massive investigation brought by Thames Valley Police, under which she faced three charges of illegally receiving crime stories from her co-defendant, a policeman. She was accused of encouraging him to leak intelligence to her. In fact, these pieces of so-called confidential police intelligence were run-of-the-mill, local paper stories.
The police entirely disregarded the safeguards enshrined in law for journalists’ protection. She was bugged by police under a warrant that made no mention of her status as a journalist (the recordings of her conversations with her co-defendant formed the crux of the Crown’s case), arrested, strip-searched, left in a cell overnight, vigorously interviewed and told that she could be facing life in jail. Like Green, she had a swarm of officers raid her home and her newspaper’s office.
The case against her collapsed just before trial, following a defence application and a ruling from the judge that the police’s covert recording of evidence was obtained in breach of her rights as a journalist under the European Convention on Human Rights (ECHR) and was inadmissible.
A vital aspect of Article 10 of the ECHR – the right to freedom of expression – is to protect journalists against undue interference by the state. In accordance with a number of recent Strasbourg rulings, Southwell J acknowledged that Murrer was entitled to the Article 10 protection afforded to journalists, notwithstanding that she was accused of acting illegally in obtaining the information. He agreed that the covert recording had violated her Article 10 rights and that the police had failed to establish the necessary social need for this interference. Having concluded that there was a violation, the judge went on to exclude the evidence, using Section 78 of the Police and Criminal Evidence Act as his vehicle. As the prosecution put it, the ruling was “terminating”, as no covert recording evidence meant no case. Murrer walked free.
But the real issue to come out of both cases is that the police had no compunction in making the arrests and conducting searches in the first place, and in the process trampling over the rights of those who play such vital roles in our society. While the smart money is on the investigation against Green going no further, should he find himself in court we can expect a strong case to be put not only about freedom of expression, but the inalienable right of MPs to operate free from Stasi-like intrusion.
Louis Charalambous represented Sally Murrer.