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    Friday, 2 April 2010

    Bad Smell all round? the murky world of cheque-book journalism

    Its been much reported in the last few days that the police officer who had been charged with assaulting a woman at the G20 protests last April has been acquitted. A primary witness - Nicola Fisher, the woman who suffered the beating - refused attend the court to provide evidence. She was said to be depressed and concerned that the defence would focus on her lifestyle and background.

    One aspect of the 'background' that would certainly have been picked up by the defence was the fact that Ms Fisher had sought representation by Max Clifford and had reportedly received a very substantial sum in return for an exclusive interview with a national newspaper. On April 16 last year, the Sun carried a spoiler decrying the fact (perhaps they lost out in the bidding) that she had received a reported £50k. They complained that she had turned "a serious inquiry into a circus" by "touting her story to make a pot of gold". Sure enough, the next day the Daily Star carried an exclusive interview with the woman under the headline 'THUG COP GOT HIS KICKS FROM HITTING A GIRL'. It has since been reported that Fisher received 'only' £26k. By the time the interview was published, the police officer had been suspended and on any viewing of the evidence it must have been obvious that criminal proceedings might well ensue.

    The importance of all this does not rest in interrogation of the motives of the unfortunate Ms Fisher. Rather, it resides in the fact that the episode suggests that at least one, perhaps more than one, national newspaper remains perfectly willing to pay prospective witnesses in criminal proceedings.

    The payment of witnesses poses particular risks to the administration of justice. The fear is that they may result in miscarriages of justice, whether to the benefit or detriment of the accused person. This outcome might arise by different means. On one hand, an agreement may directly influence the testimony offered to the court by way of omission or embellishment of evidence by the witness involved. On the other hand, a jury that becomes aware of an agreement may discount the evidence provided should it feel that the relationship with the media party has undermined the credibility of the witness. A third possibility is that witnesses, having been paid in advance of proceedings decide that they cannot face giving evidence because of the vitriol that might come their way.

    Despite many instances giving rise to concerns, the policy response to this potential detriment to the administration of justice has been limited. It is a widely-held view that while existing rules on contempt might apply to the behaviour, this will be only in the most unusual of circumstances. Nevertheless, no alternative legal solution has been forthcoming. Instead, despite undertaking repeated consultation exercises and promising legislation, the Government has sought to rely upon regulatory options offered by the Press Complaints Commission (and to lesser extent by Ofcom and the BBC Trust).

    The weakness of the law in discouraging witness payments was brought sharply into focus in 1996 by the controversy surrounding the trial and subsequent appeal of the serial murderer Rosemary West. It was discovered that as many as nineteen witnesses had negotiated arrangements with the media. Following her conviction, one of the grounds of appeal relied upon by West was that the possible tainting of evidence offered by a number of witnesses left the guilty verdict unsafe. The appalling vision was that of the possible exculpation of the perpetrator of the most heinous crimes as a direct result of media behaviour. Ultimately, the Court of Appeal concluded in the West case that the offers and actual payments to witnesses that had been identified did not undermine the verdicts. It suggested, however, that in some circumstances the payment or promise of payment to witnesses could put justice at risk.

    Between 1996 and 2003, there were various select committee interventions and governmental consultations and promises. The law was not revised however. Instead, the Government chose to rely upon "tougher media self-regulation". Baroness Scotland explained that the Government’s aim was to change and create a culture that would permeate across the newspaper sector, and that the PCC was best placed to effect such change. Having "hear[d] very clearly" from the Commission that it was willing "to discharge [its] duty" and "to change [its] rules and... code of conduct to reflect the sort of proper balance that we thought needed to be there", the Government was content to forego legislation [Culture, Media and Sport Committee [2002-03] Fifth Report: Privacy and Media Intrusion. HC 458-II, Q767]. She maintained, however, that should the Commission fail "to stamp it out both culturally and particularly so we have no more cases of this sort, then... we would have had to legislate" [Q763]. Presumably, the valency of this threat is a continuing one.

    Clause 15 of the PCC Code deals with this area of concern. Paragraph (i) installs an absolute rule of non-payment where proceedings are 'active' (as per the Contempt of Court Act 1981). Paragraph (ii) installs a presumptive rule of non-payment that applies where criminal proceedings are "likely and forseeable". Paragraph (iii) requires disclosure of any payment made before proceedings become active. Paragraphs (ii) and (iii) are subject to the free-standing public interest clause in the Code. In the case described above, it would seem that rules (ii) and (iii) applied but that no breach of the Code had occurred as the public interest clause could probably be invoked (although when might it not be given that we are talking about criminal events?), and the prosecution and defence were well aware of the fact that payment had been made. For its part, the PCC has always been remarkably sanguine (complacent?) about this issue, tending to cite the four or five very high profile instances as though they have been the only occurences of concern in decades.

    It can be reasonably suggested however, that a miscarriage of justice has occurred in this case, and that the payment made to the witness had some bearing on that outcome. This is only one instance, and its not a hugely significant crime (although the involvement of the police does ratchet it up somewhat). Nevertheless, it does seem fair to query whether the wished-for change in the culture of Fleet Street on payments to witnesses has in fact materialised, and in those circumstances whether the Government should look again at the appropriateness of self-regulation in this context.

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