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DPP launches public consultation on cases affecting the media

18/04/2012

Keir Starmer QC, the Director of Public Prosecutions (DPP), has today published interim guidelines on the approach prosecutors should take when assessing the public interest in cases affecting the media.

The guidelines are likely to be relevant when prosecutors are considering whether to charge journalists - or those who interact with journalists - with criminal offences that may have been committed in the course of their work as journalists. The publication also marks the start of a public consultation. 

Mr Starmer said: "Freedom of expression and the public right to know about important matters of public debate are an essential foundation of our society but there are limits for those who cross the line into criminality.

"These guidelines will assist prosecutors in striking the right balance between those interests in cases affecting the media.

"Journalists, and those who work with them, are not afforded special status under the criminal law, but the public interest served by their actions is a relevant factor in deciding whether they should be prosecuted in an individual case.

"Under the guidelines, prosecutors are required to assess whether the public interest served by the conduct in question outweighs the overall criminality before commencing a prosecution. If so, a prosecution is less likely."

The interim guidelines do not change the law, but broadly reflect the approach currently taken by prosecutors.

Mr Starmer continued: "These guidelines will ensure consistency but will also provide openness and transparency to the public on what victims can expect, and to the media on the approach that prosecutors will take when considering such cases.

"This is an issue of great public concern and I want to give everyone who is interested a chance to give their views on what prosecutors will consider."

Code for Crown Prosecutors

The Code for Crown Prosecutors, used by the CPS in all cases, asks lawyers to consider first whether there is sufficient evidence for a realistic prospect of conviction, and if so, then whether it is in the public interest to bring a prosecution. Throughout the whole process, prosecutors should consider that the right to freedom of expression is laid down in law, but that it is not absolute.

Considering the evidence

When considering the sufficiency of evidence, prosecutors must take into account any identified defence available and how it is likely to affect the prospects of conviction. In the absence of an identified defence or clear guidance from the courts on the proper interpretation of the criminal offences under consideration, prosecutors should put the relevant facts and matters before the court for its determination.

Does the public interest served by the conduct in question outweigh the overall criminality?

In considering whether a prosecution is in the public interest, prosecutors are asked to consider whether the public interest served by the conduct in question outweighs the overall criminality.  If the answer is yes, it is less likely that a prosecution will be required. 

It is a three stage process: firstly, assessing the public interest served by the conduct in question; secondly, assessing the overall criminality; and thirdly, weighing these two considerations.

In looking at the first stage, the following factors, which are not exhaustive, are identified as relevant in deciding whether the public interest could be served by the conduct:

  • Conduct which is capable of disclosing that a criminal offence has been committed, is being committed, or is likely to be committed.
  • 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 they are subject.
  • Conduct which is capable of disclosing that a miscarriage of justice has occurred, is occurring, or is likely to occur.
  • Conduct which is capable of raising or contributing to an important matter of public debate.
  • Conduct which is capable of disclosing that anything falling within any one of the above is being, or is likely to be, deliberately concealed. 

When assessing the overall criminality in the second stage, non-exhaustive factors likely to be relevant to the assessment have been identified as:

  • The impact on the victims of the conduct in question, including the consequences for the victims,
  • Whether the victim was under 18 or in a vulnerable position,
  • The overall loss and damage caused by the conduct in question,
  • Whether the conduct was repeated or likely to continue,
  • Whether there was any element of corruption in the conduct in question,
  • Whether the conduct in question included the use of threats, harassment or intimidation,
  • The impact on any course of justice, for example whether a criminal investigation or proceedings may have been put in jeopardy,
  • The motivation of the suspect in so far 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), and
  • Whether the public interest in question could equally well have been served by some lawful means. 

In deciding whether the public interest served by the conduct in question outweighs the overall criminality the third stage - prosecutors are reminded that it is not an arithmetical exercise, and it is not a matter of adding up factors on each side. Each case is considered on its own facts and on its own merits and it is possible that a single factor in one direction may outweigh several factors in the other.

Consultation

These guidelines have immediate effect. The interim consultation period opens today and closes on 10 July 2012. After that point responses to the consultation will be considered and final guidelines will be issued.

The DPP will publish his final guidelines later in the year, including a summary of the responses submitted.  Any cases that have fallen to be considered during the period in which the interim policy has been in place will be further reviewed in the light of the final policy.

A list of FAQs has also been compiled for this consultation exercise.

Ends

Notes to Editors

  1. It is important to distinguish between the public interest served by freedom of expression and the right to receive and impart information; and the separate question of whether a prosecution is in the public interest, which is the second stage of the Code for Crown Prosecutors as followed by prosecutors.
  2. The DPP undertook to produce this policy 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.
  3. All cases covered by these interim guidelines must be referred to the Special Crime & Counter Terrorism Division in CPS HQ and notified to the Principal Legal Advisor to the DPP.
  4. No journalist is above the law and no immunity can be given from prosecution.
  5. This does not cover any journalist's coverage of court proceedings, or conduct outside of their work.