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Public consultation on the interim guidelines for assessing the public interest in cases affecting the media - Summary of Responses

Contents

Introduction

This is a summary of responses to the recent public consultation undertaken by the Crown Prosecution Service (CPS) on the interim guidelines for prosecutors on assessing the public interest in cases affecting the media.
  1. the background to the consultation;
  2. an overall summary of the responses;
  3. a summary of the responses to the specific questions; and
  4. conclusion.

Further copies of the summary of responses can be obtained by contacting:

Human Trafficking Consultation
CPS Policy Directorate
Rose Court
2 Southwark Bridge
London
SE1 9HS

They may also be obtained by email from: cpsconsultation@cps.gsi.gov.uk. Copies are also available on the CPS website.

Background

On 18 April 2012, the Director of Public Prosecutions (DPP) launched a consultation on the interim guidelines on assessing the public interest in cases affecting the media. This followed an undertaking given by the DPP to produce the Guidelines when giving evidence on 8 February 2012 to the inquiry being conducted by Lord Justice Leveson into the Culture, Practices and Ethics of the Press.

The guidelines have been produced to assist prosecutors assessing the public interest when making charging decisions on cases involving journalists and those who interact with journalists. In order to get a wide range of views on this important and sensitive issue, we consulted publicly on the guidelines, which we initially issued on an interim basis.

As part of the consultation, respondents were asked to answer five specific questions and to give any additional comments or views at the end of their responses. The consultation period closed on 10 July 2012. A small number of responses were received after this date and were given full consideration. All replies have been included in the summary of responses. A list of respondents can be found at Annex A of this document. We are very grateful to everyone who took the time to respond to the consultation.

Following the public consultation, and in light of the responses received, we have revised the guidelines and the interim guidelines have now been replaced by the final guidelines which come into effect on 13 September 2012. The changes include providing non-exhaustive examples of what is meant by the term "important matter of public debate" referred to in paragraph 31 (d) where we have provided serious impropriety, significant unethical conduct and significant incompetence as examples of an important matter of public debate. This was an issue of particular comment by many of the respondents to the consultation.

We have not made changes to the guidelines to reflect all of the responses we received. Some comments were based on a misunderstanding about the purpose of the guidelines. Although the guidelines are accessible to the public on the CPS website, they are primarily to provide guidance to prosecutors making prosecution decisions. Whether Parliament should legislate for a general public interest defence was raised by some respondents, but that is not a question for the CPS and we have not commented on it.

Summary of Responses

We received a total of 36 responses to the public consultation. They were as follows:

Table 1: Table of respondent type

Summary of Respondents

Category of Respondent Number Percentage of Total
Public Sector 5 13
Individuals or organisations working within or for the media 23 60
Academics 6 16
Legal profession 3 8
Victims' group 1 3
Total 38 100

Not every respondent gave specific answers to each individual question in the consultation. Table 2 below shows the total number of responses to each question and the percentage that represents the total number of respondents, irrespective of type.

Table 2: Table of responses to individual questions as a percentage of the total number of respondents

Responses to individual questions as a percentage of all respondents

Question Number of responses received Percentage of total number of respondents
1 28 78
2 (a) 22 61
2 (b) 23 64
2 (c) 21 58
2 (d) 23 64
2 (e) 20 56
3 16 44
4 (a) 22 61
4 (b) 21 58
4 (c) 19 53
4 (d) 29 81
4 (e) 20 56
4 (f) 21 58
4 (g) 21 58
4 (h) 22 61
4 (i) 20 56
5 17 47
6 15 42

Each individual response has been reviewed carefully by CPS Strategy and Policy Directorate. Not all respondents followed the specific questions posed in the consultation, but their views are reflected in the above tables and the detailed analysis of the responses that follow.

Responses to specific questions

QUESTION 1: Whether it is right to ask whether the public interest in the conduct in question outweighs the overall criminality

All but one who responded agreed that this was the correct question to ask.

Although they agreed with the general question, it should be noted that one respondent queried whether the guidance should further explain what is encompassed by the phrase "the conduct in question" and thought that the expression "the wrongdoing or alleged wrongdoing" offered a better construction. They were the only respondent to express this point, and we consider that "conduct in question" is a better, more accurate term for the question under consideration.

QUESTION 2: Views on the factors identified in the interim guidelines in deciding whether the public interest is served

For ease of reference, the factors set out in the interim guidelines are repeated:

(a) Conduct which is capable of disclosing that a criminal offence has been committed, is being committed, or is likely to be committed.

Of the 36 responses, 22 specifically addressed this factor. 21 indicated that they were supportive of its inclusion, and one respondent disagreed. However, two media organisations who responded suggested that the factor should be expanded to include serious impropriety. The factor has not been extended, but consideration of whether to incorporate the suggestion of "serious impropriety" elsewhere is discussed below.

One respondent pointed out that data relating to criminal convictions receives special protection under the Data Protection Act 1998 and therefore the disclosure of such information should be proportionate to the seriousness of the crime. We have not amended to take account of this point as we consider it is already covered within the factor above.

(b) Conduct which is capable of disclosing that a person has failed, is failing, or is likely to fail to comply with any legal obligation to which s/he is subject.

There were 23 responses in respect of this factor. 21 respondents agreed that the factor should be included without editing, with only one respondent (a media organisation) suggesting that it should be edited to remove the word "legal". One academic did not agree that the factor should be included. We consider that removing the word "legal" would extend this factor too widely.

(c) Conduct which is capable of disclosing that a miscarriage of justice has occurred, is occurring or is likely to occur.

There were 21 responses, all of which were supportive of the inclusion of this factor, and it therefore remains unchanged.

(d) Conduct which is capable of raising or contributing to an important matter of public debate.

We received 23 responses, 17 were generally in favour of the factor but six disagreed with its inclusion. However, even where respondents agreed with the inclusion of this factor, many had comments about what it should or should not cover and, as we anticipated, this factor generated the greatest difference of views. Some thought the factor should be more specific as to what it would be deemed to include. Others thought it should be widened, whilst some respondents considered that it should be narrowed.

A number of respondents asked that the word "important" be removed from "important matter of public debate". We have not done so as we consider that the inclusion of "important" provides a clear indication to prosecutors that the issue in question must be of some significance. Removal of "important" would also widen this factor too far.

In response to this question, and picked up in responses to other questions, there was concern expressed by many respondents about the need to provide examples of what is meant by "important matter of public debate". We have therefore decided to give the examples of serious impropriety, significant incompetence, and significant unethical conduct. However, it is very important to stress that these examples are far from exhaustive, and "important matter of public debate" is not restricted to just these examples. Each case will be determined on its own individual facts and merits.

e) Conduct which is capable of disclosing that anything falling within any one of the above is being, or is likely to be, deliberately concealed.

There were 20 responses; all but two were supportive of this factor's inclusion as currently drafted. Two media organisations suggested revising the factor by removing the word "deliberately". We have carefully considered this point and removed the word "deliberately" as we concluded this word did not add anything more to this factor.

QUESTION 3: Whether there are any other factors which should be considered when deciding whether or not the public interest is served.

There were 16 responses and they suggested a number of additional factors.

Nine of the 16 responses suggested that the journalist's subjective belief at the time they undertook the activity was important. We have considered this point, and we have therefore revised paragraph 33(h) so that when prosecutors consider the motivation of the suspect, they are asked to take account of the information available to the suspect at the time.

Another nine suggested that compliance with a regulatory code should be a relevant factor for consideration. We gave this issue careful consideration, but we decided not to include it in the guidelines. There are a number of different codes and the codes themselves do not apply to all those who may be subject to the guidelines. In addition, the CPS does not have any influence over the contents of the different codes and what is expected in terms of compliance.

Many of the other suggestions made by respondents were in some way linked with "important matter of public debate". For example, the disclosure of unethical conduct and incompetence affecting the public were suggested by four respondents. Another three respondents suggested including the disclosure of serious impropriety. Six respondents suggested that the disclosure that the public is being seriously misled on an issue of public policy, or other matters of general public importance, should also be considered. A further two suggested the disclosure of injustice, hypocrisy and information which would assist people to make a decision of public importance.

As explained above, we have addressed this through providing non-exhaustive examples of "important matter of public debate" in giving the examples of serious impropriety, significant incompetence and unethical conduct in paragraph 31(d) of the guidelines.

QUESTION 4: Views on the factors identified as relevant in assessing the criminality

(a) The impact on the victim(s) of the conduct in questions, including the consequences for the victim(s)

There were 22 responses, 19 were in favour and three respondents were against its inclusion. One media organisation objected because they did not understand who could be considered a victim.

Another media organisation suggested replacing the factor with "whether the conduct was undertaken without regard for the foreseeable impact on and consequences for the victim".

A third media organisation suggested that the word "victim" be substituted for the word "target" because they may be more "sinner than sinned against". A broadcaster suggested that the word "legitimate" should precede "consequences", to account for consequences such as those which arose in relation to the MPs expenses story. This factor has not been changed. We consider it should be left to the discretion of prosecutors to consider whether the impact on the victim and its consequences are relevant to the assessment and if so, what weight to give to those factors.

(b) Whether the victim was under 18 or in a vulnerable position

There were 21 responses, 20 were in favour and one respondent was against. The objection was based on the same principle as the objection to (a) above, that is, they did not think that the victim was identifiable as such. One respondent pointed out that under the Data Protection Act 1998, there may be special consideration for the personal data of those under 18. This factor has been retained without amendment.

(c) The overall loss and damage caused by the conduct in question

There were 19 responses, 16 were in favour and three respondents were against. The objection raised by one respondent was the same as raised in (a) and (b) above whilst the other two respondents did not explain their objections.

One respondent stated that it should be the impact of the wrongdoing which is relevant rather than the impact of the investigation as a whole.

The factor already references that it is the "loss or damage caused by the conduct in question". The factor has therefore been retained without amendment.

(d) Whether the conduct was repeated or likely to continue

There were 29 responses, 25 were generally in favour and four respondents were against. Three of those four did not explain their objections, whilst one respondent pointed out that repeated conduct may not always be an aggravating factor as difficult investigations are likely to encounter obstacles and that as a result there may be a public interest in being persistent. Many of the responses generally in favour of this factor, however, also made suggestions about how it relates to common media practice.

We have therefore amended this factor so that it now reads "Whether the conduct was part of a repeated or routine pattern of behaviour or likely to continue".

(e) Whether there was any element of corruption in the conduct in question

There were 20 responses, 17 in favour and three were against. One respondent commented that as corruption is itself criminal conduct it should be assessed in its own right and that to consider it as an aggravating factor would be circular. We do not agree with this argument, and therefore, we have not amended this factor.

(f) Whether the conduct in question included the use of threats, harassment or intimidation

There were 21 responses and all were in favour. The factor has not been changed.

(g) The impact on any course of justice, for example whether a criminal investigation or proceedings may have been put in jeopardy

There were 21 responses, all of which agreed the factor should be included.

However, one respondent was concerned that the deliberate should be distinguished from the accidental. They stated that consideration should be given to the circumstances where someone may have accidentally endangered an investigation which they may not have known about. Another respondent stated that this should only be a factor where the conduct itself amounts to a contempt of court under the Contempt of Court Act 1981.

We consider that this matter should be left to the prosecutor when considering the facts and merits of the individual case.

(h) The motivation of the suspect insofar as it can be ascertained (examples might range from malice or financial gain at one extreme to a belief that the conduct would be in the public interest at the other)

There were 22 responses, 20 were in favour and two were against. One of whom made the point that most people approaching journalists with a story have several motives, some "noble" and others less so, and they queried how this supports the assessment of overall criminality.

We recognise this argument but consider that prosecutors will be capable of assessing various motives when considering such cases. This is something which prosecutors already do when making prosecution decisions. We have however added text concerning the information available to the suspect at the time, as set out above.

(i) Whether the public interest in question could equally well have been served by some lawful means

There were 20 responses, 18 were in favour and two disagreed. However, a number of media organisations asked whether this factor should be qualified. Some expressed concern that "lawful means" may sometimes be too slow. It was suggested that prosecutors should consider whether there was a need for urgency in the publication, having regard to the amount of time the same information may be released following a Freedom of Information Act request.

We have therefore amended this factor by adding wording to indicate clearly that the particular circumstances must be taken into account, so as to address this point.

QUESTION 5: Any other factors identified as relevant in assessing the overall criminality

An additional nine factors potentially relevant in assessing the overall criminality were suggested by a total of 17 respondents.

A journalist's subjective belief at the time they undertook the activity was suggested, this time by 11 of those who responded. This has been addressed elsewhere.

Three respondents suggested the fact the information was likely to come into the public domain in any event should be a relevant factor. This factor has not been adopted as the issues raised can be taken in to account as part of the consideration of 33(c) where appropriate.

The measures taken by a journalist to ensure external oversight of his/her actions by editors, the fact the wrongdoing was trivial, a breach of an established policy of an employer, the fact the conduct was part of a corporate strategy, the fact the conduct was part of a pattern of behaviour which includes the undue intrusion and consideration of the balance of power between the victim and the journalist were suggested by four respondents. These factors have not been adopted as we consider that many of them are sufficiently addressed by the other factors set out in paragraph 33 of the guidelines.

QUESTION 6: Any other views

There were a range of different suggestions made by respondents.

For example, the suggestions included the need to take account of the "chilling effect" that prosecution could have on journalism was suggested by two respondents. A further two respondents suggested that the guidance explicitly state that the CPS will seek representations from the journalist before making the charging decision particularly where there has been "no comment" made in the police interview. Two other respondents suggested the guidelines make it clear that the lack of publication does not automatically mean there is no public interest in a story.

In light of the comments made, and reflecting further on the guidelines, we have also made the following changes to the guidelines:

  • Removed "rare" from paragraph 11 to reflect that this is now not in the draft Code for Crown Prosecutors currently out for consultation;
  • Inserted "credible" in paragraph 19 to reflect the draft Code for Crown Prosecutors subject to consultation;
  • Inserted a reference to the common law for modes of "secondary participation in crime" in paragraphs 22 and 24;
  • Updated references to the public interest stage in view of the new draft Code for Crown Prosecutors currently subject to consultation;
  • Made it clearer when Article 8 of the European Convention on Human Rights (ECHR) is engaged in paragraph 35 in respect of invasions of privacy;
  • Extended the case law quote in paragraph 38 to include its reference to the "potentially chilling effect" of the unwarranted curtailing of press freedoms;
  • Added "proper" in paragraph 39 so prosecutors should give "proper weight" to the public interest in protecting journalists' sources;
  • Inserted additional criminal offences in Annex A of the guidelines.

Conclusion

The CPS is grateful to all those who responded to the consultation and for the time that they have invested in doing so. We have carefully considered all the responses received, and have taken them into account when considering whether to revise the interim guidelines. The changes are now reflected in the final version of the guidelines.

Consultation criteria

The six consultation criteria are as follows:

  • Consult widely throughout the process, allowing a minimum of 12 weeks for written consultation at least once during the development of the policy.
  • Be clear about what your proposals are, who may be affected, what questions are being asked and the time scale for responses.
  • Ensure that your consultation is clear, concise and widely accessible.
  • Give feedback regarding the responses received and how the consultation process influenced the policy.
  • Monitor your department's effectiveness at consultation, including the use of a designated consultation co-ordinator.
  • Ensure your consultation follows better regulation and best practice, including carrying out a Regulatory Impact Assessment if appropriate.

These criteria must be reproduced within all consultation documents.

Annex A

Response to consultation

Academics

Tim Luckhurst and Lesley Phippen, University of Kent
Dr Rob Mawby, University of Leicester
Dr Lawrence McNamara, University of Reading
Maire Messenger-Davies, University of Ulster
Professor Gavin Phillipson, University of Durham
Professor Clive Walker, University of Leeds

Media

Associated Newspapers
BBC
Campaign for Press and Broadcasting Freedom
Chartered Institute of Journalists
Evening Standard/ Independent Print Ltd
The Independent
Index
Press Association
Greg Callus
Guardian News and Media Limited
David Hoffman
Independent Television News Ltd
The Media Lawyers Association
National Union of Journalists
News International Group Limited
Newspaper Society
Press Complaints Commission
Sky News
Society of Editors
Telegraph Media Group Ltd
The Sunday Times
The Times
Trinity Mirror PLC

Legal profession

Criminal Bar Association
London Criminal Courts Solicitors Association
Simons Muirhead & Burton

Public sector

CPS London Executive Office
CPS East Midlands Community Involvement Panel
Gill Riley – CPS Community Involvement Panel
Information Commissioner's Office
West Yorkshire Police

Victim group

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