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The lack of justice for journalists' sources is a catastrophe for democracy
Ten long years ago, Robert Norman was getting on with his demanding job as a prison officer at the high security Belmarsh Prison in London. Then in 2006 he became an undercover whistle-blower, revealing hidden details of the growing crisis in Britain’s prison system. The first story published by his journalist contact, Stephen Moyes of the Daily Mirror, reported that the prison he worked in was out of control, with officers having to battle Islamic gangs.
He was not paid for the information. But over the next five years, for intel which led to further stories, he received £10,684. He was later arrested, charged and jailed for 20 months, as one of the “successful prosecutions” of Operation Elveden, the Metropolitan Police investigation into alleged payments to police and public officials by journalists.
Yet all of the warnings Norman provided about the rapid decline of security and conditions in UK jails have come to pass. We now see widespread reports of riots, prison break-outs, allegations of vulnerable inmates being “brainwashed” by Islamic extremists, prisoners confined to cells 23 hours a day, staff shortages, and the highest ever number of prisoner suicides.
So it would seem that Norman was providing the public with information of acute and urgent concern.
Tragically, however, Norman and many other public officials have been betrayed by the publishers of their stories.
Operation Elveden secured 32 successful prosecutions of public officials whose lives have been devastated by exposure, unemployment, destitution and public humiliation. Norman is the only source to appeal his conviction, and although he was unsuccessful, his Court of Appeal ruling in October revealed how willingly Trinity Mirror and News International voluntarily gave him up to the Metropolitan Police. He is still fighting on. His lawyers have put in an appeal to the UK Supreme Court.
What he has gone through has been catastrophic and tragic for him and his family.
Meanwhile the Met Police have proudly boasted about the achievements of Elveden with a snazzy mediagraphic and an assertion that “these were not whistle-blowers, but people working in some of the most trusted positions in the police, prisons and healthcare, who were only seeking to profit”.
I do not agree. Far from being a successful police operation, Elveden has been the most disastrous blow to the democratic role of journalism in modern British history.
Elveden investigated 434 “leaks of information” because British news publishers surrendered over 20,000 emails and 12,000 documents starting in 2011 that were critical to journalist source confidentiality.
News International (now News UK, publishers of The Sun, The Times and the former News of the World) and Trinity Mirror (Daily Mirror, The People) were panicked into volunteering all this material because they feared corporate corruption charges.
This has not just produced a chilling effect. It has created an Arctic climate in which no potential source can have any confidence at all in news publishers protecting their anonymity.
International law, the United Nations Human Rights Committee, the European Court of Human Rights, and British case law unanimously declare the protection of journalist sources to be a vital element of the role of the media as watchdogs of democracy.
Worse still, the legal system has failed to protect the Elveden sources. Directors of Public Prosecutions gave the green light to deny them the legal protection of acting in the public interest.
Judges threw them to the mercy of juries who had been conditioned by the hullabaloo of the Leveson Inquiry that being a public official sneak and taking money for information was corrupt.
Media victim pressure groups, politicians, and senior figures in journalism have all been silent and willing bystanders to this catastrophe.
Whistle blowing at risk
There has been plenty of protest about the journalists put on trial, many of whose legal costs were covered by embarrassed employers who had hung them out to dry.
And most of the journalists, including Moyes, had their charges dropped, were acquitted, or had their convictions quashed by the Court of Appeal.
The treatment of the journalists was appalling. The dawn raids and the immoral use of police bail was disproportionate, and oppressive. But the journalists’ sources have suffered much worse. They have criminal records, have lost their liberty and careers, and the extent of their disillusionment must be incalculable.
The situation also leaves the ability of journalism to secure sources of information for public interest stories in tatters. The crime of misconduct in public office snares any public official for leaking any information whether they are paid or not.
The 2010 Bribery Act makes it a crime for journalists to pay employees either in the public or private sectors for any information concerning their work.
But journalists had always paid for information, including from police officers, since the time of Charles Dickens and his newspaper Daily News in 1846. The British parliamentary expenses scandal exposed by the Daily Telegraph was prised open by the payment of around £150,000 to a source.
Communication and content creation in publication is lawful commerce – a democratic and legitimate process of exchange that is absolutely central to the freedom of expression. The marketplace of ideas and information is what drives and defines the relationship of journalistic payment to source – not corruption or bribery.
Real corruption is a police officer being paid to avoid making an arrest, or a prison officer smuggling contraband to a prisoner. Criminalising compensation to sources for revealing truth to power makes casualties of democracy, public welfare and the public interest.
Tim Crook is chair of the Professional Practices Board of the Chartered Institute of Journalists .