Chequebook Journalism: Is Press Self Regulation Working?

By Julia Schöpflin and Julian Darrall

Self regulation by the press is again under scrutiny, in particular the ability to regulate chequebook journalism the practice of paying for stories, information and photographs when the recipients of those payments are criminals and witnesses in criminal trials. We look at how things stand at present.

The Daily Mirror's payment of a six figure sum to Tony Martin, the Norfolk farmer who was recently released from prison after serving two thirds of his five year manslaughter sentence for shooting a teenage burglar, has re opened the debate on whether self regulation by the press is working. The Press Complaints Commission ("PCC")has decided of its own volition to examine whether the paper breached the PCC's Code of Practice. Since this was announced, the PCC has apparently received dozens of calls from members of the public in support of the Mirror .

This comes in the wake of the leaking of the PCC's draft judgment clearing the News of the World for paying £10,000 to the key witness that led to the collapse of the trial of five men accused of plotting to kidnap Victoria Beckham.

Clause 17 of the PCC Code prohibits payments to convicted or confessed criminals (or their associates)for stories, pictures or information "except where the material ought to be published in the public interest and payment is necessary for this to be done".

This is not intended to stop all those who have ever been convicted of a crime from being paid for their story in every circumstance. The PCC recognises that it is for Parliament to establish a legal regime that defines the extent to which criminals may or may not cash in on their crimes and that it would be unrealistic to insist that all convicted people should be barred forever from writing about their crimes, particularly since the law recognises that offenders can be rehabilitated and convictions spent. Further, preventing criminals profiting from their crimes must be balanced against the importance of freedom of expression and the public's right to know.

So what is in the "public interest"? The Code includes:

• detecting or exposing crime or a serious misdemeanour;

• protecting public health and safety;

• preventing the public from being misled by some statement or action of an individual or organisation.

The Code recognises the importance of there being a public interest in freedom of expression itself but, if "public interest" is invoked, the PCC will require a full explanation by the editor demonstrating how the public interest was served.

An article that brings new information to light for instance, - by highlighting possible miscarriages of justice may serve the public interest. Thus payments by The Sun to convicted train robber Ronnie Biggs and some of his associates did not breach the ban on paying criminals. The PCC accepted that the result of newspaper's action the return to justice of a wanted criminal who had been at large for over three decades was in the public interest. The PCC considered that to do otherwise would have been to condone the continued presence abroad of a wanted criminal.

Was the publication of Tony Martin's story in the public interest? Clearly so, says Piers Morgan, the Mirror's editor. Martin's conviction sparked a national debate over the extent of a householder's right to use force to protect his home. His supporters agree.

But was the payment necessary to secure publication? Detractors question whether it was necessary for the Mirror to make this payment to secure the story for themselves - in other words, they say it was nothing more than a cynical ploy to increase circulation.

In previous decisions, the PCC has recognised the reality that newspapers publish in a "fiercely competitive environment" and thus need to secure exclusivity. However, paying for a story when another newspaper has obtained the information without payment may lead or contribute to a complaint being upheld, as the Daily Telegraph found to its cost after it paid for Victoria Aitken's account of her father's perjury conviction.

Articles adjudged to glorify the crimes of those who profit from the sale of their stories tend to be censured. A recent (though disputed)example of this is the PCC's finding that The Guardian had breached Clause 17 by paying prisoner John Williams £720 (the newspaper's standard journalistic fee)for an article about fellow inmate, Jeffrey Archer, and his treatment at Hollesley Bay prison. The newspaper argued that the circumstances in which Lord Archer had been held in prison had attracted considerable publicity with allegations of preferential treatment and that Williams's article made available to the public new information that was at odds with Archer's book about life in prison, which had also been serialised in the press (but for which he was not paid).Nevertheless, the PCC was of the view that Williams had been paid for an "opportunistic article based on the notoriety of Jeffrey Archer", with whom Williams had come into contact "only because of [his ] own crime and subsequent punishment". The PCC concluded that not to find a breach of Clause 17 in such circumstances would have set an unwelcome precedent.

The PCC's adjudication opened up a rift with The Guardian, which was concerned that censure of the Williams article would compromise its ability to continue to pay prisoner Erwin James for his regular columns about prison life. The Guardian hinted that it would consider pulling out of the PCC if it was prevented from paying standard journalistic fees to James. The editors of all five broadsheets wrote to the PCC to ask for a review of what they considered to be the ambiguities of Clause 17.In a letter dated 29 July 2003 to The Guardian's editor, the PCC's director advised that the PCC had found no grounds to commence any investigation into the Erwin James columns and that the commentaries by a prisoner on prison conditions were different from the subject matter of the John Williams article.

Paying witnesses for their stories has been a longstanding press practice but in a number of high profile cases including the trials of Hindley and Brady, Jeremy Thorpe and Rosemary West there has been controversy over the risk that witnesses' evidence might have been affected by the payments they received.

The most recent case to cause controversy was the collapse of the trial of five men accused of plotting to kidnap Victoria Beckham and her two sons. The defendants were charged and spent seven months in jail as a result of a "sting" operation by the News of the World and Florim Gashi, a Kosovan parking attendant with a conviction for dishonesty. The trial collapsed when it came to light that the News of the World had paid Gashi £10,000.The CPS considered his evidence unreliable.

The trial judge, Simon Smith J, decided to refer the matter to the Attorney General "to consider the temptations to which money being offered in return for stories, in particular about celebrities, give rise to and the way in which newspaper investigations may have a detrimental effect on the ultimate court proceedings".

Recognising that the Beckham case raised a number of significant issues at a time when press self regulation was under scrutiny, the PCC initiated its own investigation, and according to the leaked draft judgment, cleared the News of the World .Under the Code that was applicable at the time, payment to a witness was permitted if it was in the public interest and there was an over riding need to make or offer the payment. The PCC is understood to have accepted the News of the World's arguments that Gashi was not a witness at the time of the payment and that the story was in the public interest. Although Gashi's dishonesty conviction also raises a Clause 17 issue, the newspaper is believed to have contended successfully that Gashi was not paid for the crime for which he was convicted.

The PCC considered the News of the World's payment to Gashi on the same day that it adjudged The Guardian to be in breach of Clause 17 for paying a fee to John Williams. Media reports compared the News of the World decision unfavourably with the decision to censure The Guardian .

The PCC's exoneration of the News of the World also apparently surprised the Attorney General. It seems he had expected to be asked for his views before the PCC reached a final decision. He has since asked the PCC to delay the release of the full adjudication pending completion of his own conclusions, including the question of whether there had been contempt of court.

In spring 2002,the Lord Chancellor's Department ("LCD")published a consultation paper reflecting its concern that payments by the media to witnesses in criminal trials might affect the course of justice. The LCD proposed the introduction of legislation to make it a criminal offence to make or to receive a payment to a witness or a potential witness in a criminal trial. This was prompted in part by the case of Amy Gehring, a teacher accused (and later acquitted)of having sex with under age boys. In that case, the press bought up the stories of three of the schoolboy witnesses after they had given evidence.

In response to the consultation paper, the PCC argued that concerns about witness payments should be addressed through stricter self regulation, rather than legislation. The LCD backed down but warned that the Government would remain ready to legislate should the revised rules be breached. In March 2003,the PCC amended its Code of Practice to deal with the concern about witness payments. Clause 16 of the PCC Code now provides that:

• no payments can be made or offered to a witness or any person who may reasonably be expected to be called as a witness in any case once proceedings are "active" as defined by the Contempt of Court Act 1981 (generally, after arrest).

• where proceedings are not yet active but are likely and foreseeable, payments must not be made or offered to any person who may reasonably be expected to be called as a witness, unless the information concerned ought to be published in the public interest and there is an over riding need to make or promise payment for this to be done. In no circumstances should such payment be conditional upon the outcome of a trial.

• any payment or offer of payment made to a person later cited to give evidence in proceedings must be disclosed to the prosecution and defence.

How the PCC deals with the payments to Tony Martin and Florim Gashi could have longer term implications for self regulation by the press.

As a result of the Mirror's publication of Tony Martin's story, the Home Office has indicated that it is reviewing how criminal and civil laws can be used to prevent offenders profiting from their crimes.

However, the PCC may be able to find some comfort from the recent House of Commons Media Select Committee report, which supported the principle of self regulation, albeit with stronger sanctions including the power to levy fines on errant publications (like regulators of broadcasters).

It will be interesting to see the PCC ’s published decision on the News of the World. It will look extremely odd if it now "convicts" the paper. But if the PCC exonerates it whilst the Attorney General prosecutes for contempt, it will seem toothless and self serving. It can only stand by its own original convictions and hope that the differences between the broadsheets and tabloids over inconsistent applications of Clause 17 blow over. If the PCC has to mobilise to preserve self regulation without penalties, it cannot afford internal dissension.