An Inquiry into the Culture, Practices and Ethics of the Press
Section 55: Data Protection Act
Section 55: Data Protection Act
¶5.29 Section 55(1) makes it a criminal offence to knowingly or recklessly, without the consent of the data controller, (a) obtain or disclose personal data or the information contained in personal data, or (b) procure the disclosure to another person of the information contained in personal data, subject to specified defences in s55(2). This is considered above at 4.59.
1932¶Blagging offences – obtaining information by misleading or deceitful practices 5.30 There are a number of offences that potentially criminalise "blagging" or. in other words, the obtaining of information by using a pretence, false identity or false representations:
(a) s1 Fraud Act 2006 (fraud by false representation) and deception offences under the Theft Acts; (b) s1 Forgery and Counterfeiting Act 1981, Identity Cards Act 2006 (use of false documentation to prove identity); (c) s90 Police Act 1996 (impersonation of a police officer); (d) Official Secrets Act 1920 (unauthorised use of uniforms, falsification of reports, forgery, impersonation or the false use of documents to gain admission to a prohibited place within the meaning of the Official Secrets Act 1911); (e) s55 DPA (unlawfully obtaining personal data).
¶The Theft Acts 1968 and 1978 5.31 The Theft Acts 1968 and 1978 set out deception offences which criminalise conduct in which something was dishonestly obtained. For example, s15 of the Theft Act 1968 criminalised obtaining property by deception and s1 of the Theft Act 1978 criminalised obtaining services by deception. By s15(4) of the Theft Act 1968, "deception" means any deception (whether deliberate or reckless) by words or conduct as to fact or as to law, including a deception as to the present intentions of the person using the deception or any other person. The judicial definition of deception frequently cited is "to deceive is … to induce a man to believe that at thing is true which is false".461 5.32 These offences were repealed by the Fraud Act 2006 with effect from 15 January 2007. The old law is not, however, without relevance: it will continue to apply in so far as offences were committed or partly committed before that date.
¶Fraud Act 2006 5.33 The Fraud Act 2006 repealed the offences under the Theft Acts 1968 and 1978 and replaced them with a general offence of fraud as set out in s1 of the Act and an offence of obtaining services dishonesty, s11. It applies to offences committed after 15 January 2007. 5.34 Section 1(1) of the Act provides that a person is guilty of fraud if he or she is in breach of any of the sections listed in s1(2). There sections are:
(a) fraud by false representations, s2; (b) fraud by failing to disclose information, s3; (c) fraud by abuse of position, s4.
¶5.35 Breaches of ss2 – 4 are not stand-alone offences, but are variations of an offence of fraud under s1.
1933¶5.36 Section 2 concerns fraud by false representation. A person is in breach of s2 if they dishonestly make a false representation and intend by making that representation to i) make a gain for themselves or another, or ii) to cause loss to another or to expose another to a risk of loss.462 5.37 Section 3 concerns fraud by failing to disclose information. A person is in breach of s3 if they dishonestly fail to disclose to another person information which they are under a legal duty to disclose and intend, by failing to disclose the information i) to make gain for themselves or another, or ii) to cause loss to another or to expose another to a risk of loss.463
¶5.38 Section 4 concerns fraud by abuse of position. A person is in breach of s4 if they occupy a position in which they are expected to safeguard, or not to act against, the financial interests of another person, dishonestly abuse that position and intend, by means of the abuse of that position i) to make a gain for themselves or another, or ii) to cause loss to another or to expose another to a risk of loss.
¶5.39 The focus of these offences is the conduct and the intent of the defendant as opposed to the consequences of the conduct. Attempts to defraud that are unsuccessful, for example false representations made to obtain information that do not result in the obtaining of the information, may nevertheless still amount to fraud.
¶5.40 Dishonesty in fraud cases requires a two part test to be considered: firstly whether according to the ordinary standards of reasonable and honest people what was done was dishonest, and secondly whether the defendant must have realised that what they were doing was (by reference to the standards of reasonable and honest people) dishonest.464
¶5.41 The mens rea (i.e. mental) element common to all variants of the fraud offences is that the defendant must act either, with intent to secure a gain for themselves or another, or with intent to cause loss to another or expose another to a risk of loss. It is not necessary that the gain, loss or exposure to risk of loss actually occurs – the focus is on the mental state of the defendant. Gain and loss are defined in s5.
¶5.42 A person guilty of fraud is liable on summary conviction to imprisonment for a term not exceeding six months and/or a fine not exceeding the statutory maximum. A person convicted on indictment is liable to imprisonment for a term not exceeding 10 years or to a fine.465 The relevant sentencing guidelines for fraud offences are the SGC Guideline, Sentencing for Fraud – Statutory Offences.466
¶5.43 Section 11 concerns obtaining services dishonestly. A person is guilty of an offence under s11 if they obtain services for themselves or another, a) by a dishonest act and, (b) in breach of s11(2), namely services are made available on the basis that payment has been, is being, or will be made for or in respect of the services, they obtain them without any payment having been made for the services in full, and, when they obtain the services they knows that, i) they are being made available on that basis or, ii) they might be, but intend that payment will not be made, or will not be made in full.
1934¶5.44 A person guilty of an offence under s11 is liable on summary conviction to imprisonment for a term not exceeding 6 months and/or to a fine not exceeding the statutory maximum, or on conviction on indictment to imprisonment for a term not exceeding 5 years or to a fine, or to both.
¶Falsification, forgery and counterfeiting 5.45 Offences of falsification will often also amount to fraud within the meaning of the Fraud Act 2006, although dishonesty need not be proved in cases charges under the Forgery and Counterfeiting Act 1981.
¶5.46 The Forgery and Counterfeiting Act 1981 repealed a number of older statutory offences of forgery and abolished forgery at common law. Part 1 of the Act creates the following offences:467
(a) making a false instrument, s1; (b) copying a false instrument, s2; (c) using a false instrument, s3; (d) using a copy of a false instrument, s4; (e) having custody or control of specified kinds of false instrument, s5(1); and (f) making or having custody etc of machines paper etc for making false instruments of that kind, s5(3)..
¶5.47 These offences all require an "intention to induce" somebody to accept the instrument as genuine and "by reason of so accepting it to do or not to do some act to his own or any other person's prejudice".468 5.48 An instrument is only regarded as false if it purports to be something it is not, or it tells a lie about its own authorship, origins or history.
¶Offences relating to identity documents 5.49 The Identity Cards Act 2006 was repealed on 21 January 2011 by the Identity Documents Act 2010, although the offences created by s25 of the 2006 Act were re-enacted with consequential amendments in ss4,5 Submissions 36 Press freedom within the rule of law and the role of statute 65 Political news management 1155 Chapter 4: The Conservative revival and the coalition 1164 Communications Act 2003 1278 Chapter 6: media policy: The BSkyB bid 1299 pp1-14, lines 4-17, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-Afternoon- Hearing-15-May-2012.pdf para 664, Ibid p6, para 3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Dr-Neil-Manson.pdf p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Professor-Christopher- Megone.pdf Guardian website based on ABC figure http://www.guardian.co.uk/media/table/2011/oct/14/abcs-national- newspapers http://www.newscorp.com/investor/annual_reports.html http://www.sky.com/products/tv-packs/extra-channels/ p2-3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Professor-Christopher- Megone.pdf O'Malley, T and C Soley, Regulating the Press, pp51-56 p28, para 27, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Stephen-Abell.pdf pp77-78, lines 15-3, DCI Middleton, ibid p4, para 3.5, ibid p32, para 83, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Andy- Hayman1.pdf http://www.levesoninquiry.org.uk/evidence/?witness=dac-sue-akers Communications Act 2003 1278 Chapter 6: Media policy: The BSkyB bid 1299 see for instance Flood v Times Newspapers 2012 UKSC 11 pp7-8, lines 25-2, Rhodri Davies QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of- Afternoon-Hearing-24-July-2012.pdf Part E Chapter 4 p2, para 6, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Sally-Bob-Dowler. pdf pp33-34, lines 19-5, Charlotte Church, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of- Afternoon-Hearing-28-November-20111.pdf; p11, para30, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Charlotte-Church.pdf p4, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Richard-Peppiatt.pdf HMIC Without Fear or Favour: A review of police relationships http://www.hmic.gov.uk/media/a-review-of-police- relationships-20111213.pdf p14, lines 8-9, Lord Condon, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of-Morning- Hearing-6-March-20122.pdf p34, lines 9-14, Brian Paddick, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/lev270212pm.pdf Part G Chapter 3 p39, lines 20-23, Francis Aldhouse, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Morning-Hearing-5-December-2011.pdf p10, para 4.14, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Alexander- Owens1.pdf pp22-24, paras 6.1-6.7, ibid p66, lines 5-9, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Afternoon-Hearing-9-December-2011.pdf Part H, Chapter 5, para 2.57 p39, lines 3-4, Tony Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-Morning- Hearing-28-May-2012.pdf The Sun, 11 April 1992; see p16, ibid p21, para 60, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-David- Cameron-MP.pdf p7, ibid p2, lines 4-13, Lord Justice Leveson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of- Afternoon-Hearing-23-April-2012.pdf p3, lines 2-12, ibid p52, lines 6-13, Viscount Rothermere, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Morning-Hearing-10-May-2012.pdf pp65-68, lines 7-2, Claire Enders, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of- Afternoon-Hearing-17-July-2012.pdf Part E, Chapter 4 p37, lines 12-24, Paul Ashford, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Afternoon-Hearing-12-January-2012.pdf; pp73-77, lines 25-2, Richard Desmond, http://www.levesoninquiry.org.uk/ wp-content/uploads/2012/01/Transcript-of-Afternoon-Hearing-12-January-2012.pdf Part J, Chapters 2 and 3 p67, lines 1-12, Lord Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Afternoon- Hearing-31-January-2012.pdf K p2, para 4, ibid p102, lines 1-9, Ed Richards and Colette Bowe, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/ Transcript-of-Morning-Hearing-12-July-2012.pdf p52, lines 17-24, Professor John Horgan, ibid p13, para 1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Lord-Black-of- Brentwood1.pdf Part K, Chapter 7, para 4.20; it would be particularly worthwhile to give consideration to the evidence that was provided to the Inquiry both in witness statements and orally, but specifically deployed on 16 July 2012 Part K, Chapter 7, para 4.10 1803 L Signed and proclaimed by the Presidents of the European Parliament, the Council and the Commission at the European Council meeting in Nice on 7 December 2000 and 6 of the 2010 Act. 5.50 Section 4 provides that it is an offence for a person with an improper intention to have in their possession or under their control an identity document that is false and that they know or believe to be false, an identity document that was improperly obtained and that they know or believe to have been improperly obtained, or an identity document that relates to someone else.469
1935¶5.51 Section 5 provides that it is an offence for a person with the prohibited intention to make or have in their possession or under their control, any apparatus which, to their knowledge, is or has specially been designed or adopted for the making of false identity documents or any article or material which, to the person's knowledge, is or has been specially designed or adapted to be used in the making of such documents.470 5.52 Section 6 provides that it is an offence for a person, without reasonable excuse, to have in their possession or under their control, (a) an identity document that is false, (b) an identity document that was improperly obtained, (c) an identity document that relates to someone else, (d) any apparatus which, to the person's knowledge, is or has been specially designed or adopted for the making of false identity documents, or (e) any article or material which, to the person's knowledge, is or has been specially designed or adapted to be used in the making of such documents.
¶Impersonation of a police officer 5.53 It is an offence contrary to the Police Act 1996 s90(2) for someone who is not a police officer to wear any article of police uniform, which includes distinctive badges, marks and documents where it gives that person an appearance so resembling a member of a police force that is calculated to deceive, s90 Police Act 1996.
¶5.54 The offence is punishable on summary conviction with a fine not exceeding level 3.
¶Gaining access to a prohibited place 5.55 Section 1 of the Official Secrets Act 1920 creates an offence where a person, for the purpose of gaining admission or of assisting any other person to gain admission to a prohibited place, or for any other purpose prejudicial to the safety or interests of the State:471
1936(a) uses or wears without lawful authority, any naval, military, air-force, police or other official uniform, or any uniform so nearly resembling the same as to be calculated to deceive, or falsely represents themselves to be a person who is or has been entitled to use or wear any uniform; (b) orally or in writing in any declaration or application, or in any document signed by them or on their behalf, knowingly makes or connives at the making of any false statement or any omission; (c) tampers with any passport or naval, military, air-force, police or other official pass, permit, certificate, licence, or other document of a similar character, or has in their possession any forged, altered or irregular official document; (d) personates or falsely represents themselves to be a person holding, or in the employment of a person holding office under His/Her Majesty or to be a person to whom an official document or secret official code word or pass word has been duly issued or communicated, or with intent to obtain any official document, secret official code word or pass word, for themselves of another, knowingly makes any false statement;
(e) uses or has in their possession or control, without the authority of the Government Department or the authority concerned, any die, seal, stamp of or belonging to, or used made or provided by any Government Department, or by any diplomatic, naval, military or air force authority or any die, seal or stamp so nearly resembling any such die, seal or stamp as to be calculated to deceive or any counterfeits of such die, seal or stamp.
¶s55 DPA – unlawful obtaining of personal data 5.56 Section 55 of the Data Protection Act may also cover blagging offences where conduct amounts to a person knowingly or recklessly without the consent of the data controller, (a) obtaining or disclosing personal data or the information contained in personal data, or (b) procuring the disclosure to another person of the information contained in personal data. This offence is dealt with above at paragraph 4.59.
¶Making payments to public officials in order to obtain information 5.57 Making payments to public officials in order to obtain information may amount to an offence under the Bribery Act 2010 (if committed after 1 July 2011), the common law of bribery, or under the Prevention of Corruption Acts 1889 and 1916 (in relation to acts prior to July 2011), and may give rise to misconduct in public office on the part of public officers.
¶5.58 Prior to the implementation of the Bribery Act 2010, statute and common law laid down offences in relation to bribery. The principal legislation dealing with corruption was contained in the Public Bodies Corruption Practices Act 1889 and the Prevention of Corruption Act 1906, which were supplemented by the Prevention of Corruption Act 1916. The 1889 Act concerned corruption in public bodies and local government and criminalised the giving or receipt of money, gifts of other consideration in relation to a person in the employment of the Crown, any government department or public body.472 "Corruptly" for the purposes of the 1889 Act referred to purposefully doing any act which the law forbids as tending to corrupt and would likely include improper gifts, payments or other inducements offered to a councillor or other officers or employees of a public authority.473 It was no defence for the recipient to prove that their acceptance of a corrupt gift failed to influence them in the performance of his duties.474
¶5.59 The 1906 Act is concerned with the corruption of agents, whether agents of public bodies or otherwise.475 Section 1 sets out that it is an offence if any agent corruptly accepts or obtains, agrees to accept or attempts to obtain from any person, for themselves or any other person, any gift or consideration as an inducement for doing or forbearing to do any act in relation to their principal's affairs or business.
¶5.60 Bribery and corruption committed abroad was criminalised by the Anti-Terrorism, Crime and Security Act 2001, s109. Further, prior to the implementation of the Bribery Act 2010, it was an offence at common law to bribe the holder of a public officer, or for an office holder to accept such a bribe.476
1937¶5.61 The Bribery Act 2010 was brought into force on 1 July 2011 and sets out a consolidated scheme for bribery offences in the UK and abroad. Section 17 and Schedule 2 abolish the common law offences of bribery but leave intact the common law offence of misconduct in public office. New offences are created by ss1, 2,6 Engagement with the public: the website 37 Chapter 3: Further issues of law 38 The protection of sources and other legal privileges of the press 68 Chapter 3: Competing public interests 69 http://www.levesoninquiry.org.uk/people/assessors/lord-david-currie/ This obligation of confidence is owed by the Inquiry team to any recipient of the letter and by that recipient to me, as Chairman of the Inquiry: see para. 14(1) of the Inquiry Rules 2006 Great Britain, Royal Commission on the Press: 1961-1962: Report (Cmnd 1811) p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Dr-Rowan-Cruft.pdf p32, lines 16-21, Professor John Tasioulas, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/ Transcript-of-Morning-Hearing-16-July-2012.pdf Claire Enders, Competitive Pressures on the Press, Seminar 6 October 2011, http://www.levesoninquiry.org.uk/wp- content/uploads/2012/07/Claire-Enders-Competitive-pressures-on-the-press.pdf ibid http://downloads.bbc.co.uk/bbctrust/assets/files/pdf/about/how_we_govern/charter.pdf p3, lines 4-10, Robin Foster http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of- Afternoon-Hearing-17-July-2012.pdf Political and Economic Planning, Report on the British Press http://www.pcc.org.uk/index.html p9, para 8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-T-ACC-Russell- Middleton.pdf Information Commissioner's Office, What Price Privacy?, p15, para 5.1 p33, para 89, ibid p2, para 6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Fourth-Witness-Statement-of-DAC-Sue- Akers.pdf http://www.levesoninquiry.org.uk/hearing/2011-11-14am/ http://www.levesoninquiry.org.uk/hearing/2011-11- p53, lines 23-24, Michael Gove, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Afternoon-Hearing-29-May-2012.pdf p28, lines 22-25, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of- Morning-Hearing-25-April-2012.pdf p3, para 10, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Sally-Bob- Dowler.pdf pp14-17, lines 17-3, Charlotte Church http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of- Afternoon-Hearing-28-November-20111.pdf p5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Michelle-Stanistreet.pdf http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Report-by-Elizabeth-Filkin.pdf pp4-5, paras 11-13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Lord- Condon.pdf p35, lines 10-12, Brian Paddick, ibid pp25-26, lines 12-11, Neil Wallis, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of- Afternoon-Hearing-2-April-2012.pdf p75, line 13, Richard Thomas, ibid, emphasis added. Mr Thomas suggested, however, that s55 of the DPA which founded the prosecution powers was most likely to be the most relevant provision of the regime to the terms of reference: p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/First-Witness-Statement-of-Richard- Thomas-CBE.pdf pp41-42, lines 25-3, Francis Aldhouse, ibid pp11-12, paras 4.18-4.19, Alexander Owens, ibid pp6-16, para 3.3-3.26, ibid p2, para 7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Second-Witness-Statement-of-John- Witherow.pdf Part H, Chapter 5, para 2.64 p36, lines 4-24, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of- Morning-Hearing-25-April-2012.pdf p53, lines 18-19, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of- Morning-Hearing-25-April-2012.pdf pp4-5, lines 16-2, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Morning-Hearing-14-June-2012.pdf pp7-8, ibid pp58-59, Lord Justice Leveson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Morning-Hearing-10-May-2012.pdf; p5, lines 5-11, Lord Justice Leveson, http://www.levesoninquiry.org.uk/wp- content/uploads/2012/05/Transcript-of-Afternoon-Hearing-15-May-2012.pdf pp87-88, lines 6-2, ibid p52, lines 14-21, ibid pp3-4, lines 19-3, Robin Foster, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of- Afternoon-Hearing-17-July-2012.pdf Home Office Large Major Enquiry System p46, lines 20-21, Lionel Barber, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- J Morning-Hearing-10-January-2012.pdf pp8-9, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Professor-Roy-Greenslade-of- City-University.pdf p14, lines 13-14, Lord Black, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of-Morning- Hearing-1-February-2012.pdf p10, lines 10-22, Lord Black, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of-Morning- K Hearing-9-July-2012.pdf p3, para 6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Media-Regulation- Round-Table.pdf p53, lines 9-22, Professor John Horgan, ibid Part K, Chapter 2 Part K, Chapter 3, para 5.14 Part K, Chapter 7, para 4.16 See for example: Application 22954/93, Ahmed v United Kingdom (1998) 29 EHRR1 at para 70, and Application 11800/85, Ezelin v France (1991) 14 EHRR 362 at paras 37 and 51 and 7 of the Bribery Act 2010. The Act does not have retrospective effect, and acts undertaken prior to the commencement date will be charged under the old law.
¶5.62 The key offences in the Act are ss1 (bribery of another person) and 2 (being bribed). The offences apply equally to the public and private sector.
¶5.63 Section 1 of the Act provides that a person is guilty of an offence in one of two cases. The first case is where a person offers, promises or gives a financial or other advantage to another person and the person intends the advantage to, i) induce a person to perform improperly a relevant function or activity or ii) to reward a person for the improper performance of such a function or activity.477 The second case is where a person offers, promises or gives a financial or other advantage to another person, and knows or believes that the acceptance of the advantage would itself constitute the improper performance of a relevant function or activity.
¶5.64 In relation to the first case it does not matter whether the person to whom the advantage is offered, promised or given, is the same person as the person who is to perform, or has performed, the function or activity concerned, s1(4). In the first and second cases, it does not matter whether the advantage is offered, promised or given by the person directly or through a third party: s1(5). It is not a requirement of either of these offences that the bribe or advantage is actually accepted.
¶5.65 Section 2 provides that a person is guilty of an offence if one of a further three cases applies.
¶5.66 The third case is where the person requests, agrees to receive or accepts a financial or other advantage intending that, in consequence, a relevant function or activity should be performed improperly by themselves or another. The fourth case is where a person requests, agrees to receive or accepts a financial or other advantage, and the request, agreement or acceptance itself constitutes the improper performance by a person of a relevant function or activity. The fifth case is where a person requests, agrees to receive or accepts a financial or other advantage as a reward for the improper performance, whether by themselves or another, of a relevant function or activity. The sixth case is where, in anticipation of, or in consequence of a person requesting, agreeing to receive or accepting a financial or other advantage, a relevant function or activity is performed improperly by the person or another at the person's request or with the person's assent or acquiescence.478
¶5.67 The Director of the Serious Fraud Office and the DPP published joint guidance on 30 March 2011 on the approach to prosecutorial decision-making in respect of offences under ss1,2,6 Engagement with the public: the website 37 Chapter 3: Further issues of law 38 The protection of sources and other legal privileges of the press 68 Chapter 3: Competing public interests 69 http://www.levesoninquiry.org.uk/people/assessors/lord-david-currie/ This obligation of confidence is owed by the Inquiry team to any recipient of the letter and by that recipient to me, as Chairman of the Inquiry: see para. 14(1) of the Inquiry Rules 2006 Great Britain, Royal Commission on the Press: 1961-1962: Report (Cmnd 1811) p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Dr-Rowan-Cruft.pdf p32, lines 16-21, Professor John Tasioulas, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/ Transcript-of-Morning-Hearing-16-July-2012.pdf Claire Enders, Competitive Pressures on the Press, Seminar 6 October 2011, http://www.levesoninquiry.org.uk/wp- content/uploads/2012/07/Claire-Enders-Competitive-pressures-on-the-press.pdf ibid http://downloads.bbc.co.uk/bbctrust/assets/files/pdf/about/how_we_govern/charter.pdf p3, lines 4-10, Robin Foster http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of- Afternoon-Hearing-17-July-2012.pdf Political and Economic Planning, Report on the British Press http://www.pcc.org.uk/index.html p9, para 8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-T-ACC-Russell- Middleton.pdf Information Commissioner's Office, What Price Privacy?, p15, para 5.1 p33, para 89, ibid p2, para 6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Fourth-Witness-Statement-of-DAC-Sue- Akers.pdf http://www.levesoninquiry.org.uk/hearing/2011-11-14am/ http://www.levesoninquiry.org.uk/hearing/2011-11- p53, lines 23-24, Michael Gove, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Afternoon-Hearing-29-May-2012.pdf p28, lines 22-25, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of- Morning-Hearing-25-April-2012.pdf p3, para 10, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Sally-Bob- Dowler.pdf pp14-17, lines 17-3, Charlotte Church http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of- Afternoon-Hearing-28-November-20111.pdf p5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Michelle-Stanistreet.pdf http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Report-by-Elizabeth-Filkin.pdf pp4-5, paras 11-13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Lord- Condon.pdf p35, lines 10-12, Brian Paddick, ibid pp25-26, lines 12-11, Neil Wallis, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of- Afternoon-Hearing-2-April-2012.pdf p75, line 13, Richard Thomas, ibid, emphasis added. Mr Thomas suggested, however, that s55 of the DPA which founded the prosecution powers was most likely to be the most relevant provision of the regime to the terms of reference: p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/First-Witness-Statement-of-Richard- Thomas-CBE.pdf pp41-42, lines 25-3, Francis Aldhouse, ibid pp11-12, paras 4.18-4.19, Alexander Owens, ibid pp6-16, para 3.3-3.26, ibid p2, para 7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Second-Witness-Statement-of-John- Witherow.pdf Part H, Chapter 5, para 2.64 p36, lines 4-24, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of- Morning-Hearing-25-April-2012.pdf p53, lines 18-19, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of- Morning-Hearing-25-April-2012.pdf pp4-5, lines 16-2, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Morning-Hearing-14-June-2012.pdf pp7-8, ibid pp58-59, Lord Justice Leveson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Morning-Hearing-10-May-2012.pdf; p5, lines 5-11, Lord Justice Leveson, http://www.levesoninquiry.org.uk/wp- content/uploads/2012/05/Transcript-of-Afternoon-Hearing-15-May-2012.pdf pp87-88, lines 6-2, ibid p52, lines 14-21, ibid pp3-4, lines 19-3, Robin Foster, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of- Afternoon-Hearing-17-July-2012.pdf Home Office Large Major Enquiry System p46, lines 20-21, Lionel Barber, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- J Morning-Hearing-10-January-2012.pdf pp8-9, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Professor-Roy-Greenslade-of- City-University.pdf p14, lines 13-14, Lord Black, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of-Morning- Hearing-1-February-2012.pdf p10, lines 10-22, Lord Black, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of-Morning- K Hearing-9-July-2012.pdf p3, para 6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Media-Regulation- Round-Table.pdf p53, lines 9-22, Professor John Horgan, ibid Part K, Chapter 2 Part K, Chapter 3, para 5.14 Part K, Chapter 7, para 4.16 See for example: Application 22954/93, Ahmed v United Kingdom (1998) 29 EHRR1 at para 70, and Application 11800/85, Ezelin v France (1991) 14 EHRR 362 at paras 37 and 51 and 7 of the Act.
1938¶Misconduct in public office 5.68 The common law offence of misconduct in public office remains an offence and has not been extinguished by the Bribery Act 2010. The offence was explained by the Court of Appeal in A-G Ref (No 3 of 2003), which held that the offence of misfeasance in public office is committed by a public officer acting as such who wilfully neglects to perform his or her duty and/or wilfully misconducts themselves to such a degree as to amount to an abuse of the public's trust in the office holder, without reasonable excuse or justification. Wilful in this context involves "deliberately doing something which is wrong, knowing it to be wrong or with reckless indifference as to whether it is wrong or not".479 As to the requirement that the neglect of duty or the misconduct must amount to an abuse of the public's trust in the office holder, the court said that threshold is a high one and a mistake, even a serious one, will not suffice.480
¶5.69 In respect of cases involving police officers, the Court of Appeal reviewed the authorities on sentencing in A-G Ref (No 30 of 2010) (R v Bohannan), and concluded that the authorities illustrated four important principles: punishment and deterrence were always important because police officers must be deterred from misconduct and the public must see that condign punishment will be imposed on police officers who betray the trust in them, an incentive, money or otherwise, increases the seriousness of the offence, misconduct that assists organised criminals to keep ahead of law enforcement agencies increases the gravity of offences, misconduct that impact on police operations moves an offence into a different category of gravity.481 5.70 The offence can involve an improper act or omission, but the misconduct must be wilful and the offender must be a public officer acting as such.482 Public officers include magistrates, judges, registrars, council officials, ministers, civil servants and police officers. 5.71 For example in A-G's Ref (No 1 of 2007), a police officer was convicted of misconduct in public office for misusing the Police National Computer in order to supply confidential information to a known criminal.483 5.72 The principal legislation dealing with corruption prior to the Bribery Act 2010 was the Public Bodies Corrupt Practices Act 1889, the Prevention of Corruption Act 1906, and the Prevention of Corruption Act 1916.
¶Handling stolen goods 5.73 Section 22 of the Theft Act 1968 sets out that a person handles stolen goods if (otherwise than in the course of the stealing) know or believing them to be stolen goods they dishonestly receive the goods, or dishonestly undertake or assist in their retention, removal, disposal or realisation by or for the benefit of another person or if they arrange to do so. Section 34(2) (b) defines "goods" as including money and every other description of property except land, and includes things severed from the land by stealing. 5.74 Dishonesty in this context bears the same meaning as fraud or deception in the case of Ghosh. For a charge of handling stolen goods to be made out, it must be proved that the defendant knew the goods were stole. or correctly believed they were and this state of mind must correspond with the time when the handling takes place.
1939¶Restrictions on content of publications Official Secrets Act 1989 5.75 Section 1 of the Official Secrets Act 1989 contains an offence relating to the disclosure of information and material by a person who is or has been a member of the security and intelligence services or has been notified they are subject to the OSA 1989. Section 2 creates the offence of damaging disclosure of defence information, s3 relates to damaging disclosure of material relating to international relations or other confidential information, documents or articles which were obtained from a State other than the UK or an international organisation, and s4 creates an offence of disclosure of information relevant to criminal investigations.484
¶5.76 The House of Lords in R v Shayler held that ss1,3 Visits 9 Chapter 2: the approach 10 Challenging the evidence 31 The nature and standard of proof 43 Chapter 4: the Report 49 Timing and content 50 PARt B: the PRess And the PuBlIC InteRest 53 Chapter 1: Introduction 55 Chapter 2: the freedom of the press and democracy 56 The importance of a free press: free communication 61 Personal autonomy and civil liberties 73 Prime Minister Blair: 1997-2007 1143 Prime Minister Cameron: 2010-present 1209 Human Rights Act 1998 1262 In particular, in relation to the knowledge and understanding (a) in 2002 of Surrey Police as to the interception of the mobile phone of Milly Dowler and (b) in 2008 of Cleveland Police in relation to e mail hacking of John Darwin who had faked his own death in a canoe 'The Freedom of the Press'-proposed preface to 'Animal Farm', publication of which was delayed until the end of the war to avoid causing offence to the Soviet Union pp361-363, ibid p3, ibid ibid http://www.newscorp.com/investor.html http://stakeholders.ofcom.org.uk/binaries/research/cmr/cmr11/UK_Doc_Section_1.pdf Communications Act 2003 s375 (1)(2C)(a) http://www.legislation.gov.uk/ukpga/2003/21/section/375 ibid, p4 p16, lines 12-18, Alexander Owens, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of- Afternoon-Hearing-30-November-2011.pdf p42, para 83, ibid pp2-3, para 5, ibid para 46, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Application-of-Rule-13-of-the-Inquiry- Rules-2006.pdf Transcript of the proceedings before Gross J on 26 January 2007, p70E This submission has not been published on the Inquiry website, but was shared with the Core Participants to the Inquiry pp4-5, lines 17-12, Charlotte Church, ibid p34, lines 16-25, James Hipwell, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Morning-Hearing-21-December-20111.pdf p4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Commissioner-Bernard- Hogan-Howe1.pdf pp12-13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Jeff-Edwards.pdf p15, para 3.1.3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Report-by-Elizabeth-Filkin.pdf pp4-5, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Alexander-Owens1. pdf pp32-33, lines 4-22, Alexander Owens, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript- of-Morning-Hearing-5-December-2011.pdf p26, para 6.10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Christopher- Graham.pdf http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Fourth-Witness-Statement-of-Richard-Thomas-CBE. pdf; http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Sixth-Witness-Statement-of-Richard-Thomas.pdf Part H, Chapter 5, para 2.62 p6, lines 15-16, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of- Morning-Hearing-25-April-2012.pdf p22, lines 7-14, Jack Straw, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-Morning- Hearing-16-May-2012.pdf p4, lines 6-12, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Morning-Hearing-14-June-2012.pdf p6, ibid http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm110713/debtext/110713-0003. htm#11071379000002 p9, lines 20-25, ibid pp1-2, para 4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/10/Submission-from-Professor-Steven- Barnett-on-plurality.pdf p9, line 8, Ian Hislop, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Morning- Hearing-18-January-2012.pdf p4, para 18, and p18, para 85, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement- of-Nick-Clegg-MP2.pdf; pp10-11, lines 15-24, Nick Clegg MP, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/06/Transcript-of-Morning-Hearing-13-June-2012.pdf p14, para 42, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Lord-Hunt-of-Wirral. pdf p36, lines 9-20, Lord Black, ibid p3, para 7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Lord-Black-of-Brentwood1.pdf p15, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Submission-by-Campaign-for-Press-and- Broadcasting-Freedom1.pdf p51, lines 11-15, Professor John Horgan, ibid K Part F, Chapter 6 Part K, Chapter 7, para 4.28 K Part K, Chapter 7, para 4.8 In McCartan Turkington Breen v Times Newspapers Ltd [2001] 1 AC 277, Lord Steyn noted that even before the coming into force of the HRA 1988, "the principle of freedom of expression [had] attained the status of a constitutional right with high attendant normative force", with reference made to Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 207G-H and 4 do not entitle a defendant prosecuted under those provisions to be acquitted if they show that it was, or that they believed that it was, in the public or national interest to make the disclosure in question or if the jury concluded that it might have been, or the defendant might have believed it to have been in the public or national interest to make the disclosure in question.485 Lord Bingham held that:486
"It is in my opinion plain, giving sections 1(1)(a) and 4(1) and 3(a) their natural and ordinary meaning and reading them in the context of the OSA 1989 as a whole, that a defendant prosecuted under these sections is not entitled to be acquitted if he shows that it was or that he believed that it was in the public or national interest to make the disclosure in question or if the jury conclude that it may have been or that the defendant may have believed it to be in the public or national interest to make the disclosure in question. The sections impose no obligation on the prosecution to prove that the disclosure was not in the public interest and give the defendant no opportunity to show that the disclosure was in the public interest or that he thought it was. The sections leave no room for doubt, and if they did the 1988 white paper quoted above, which is a legitimate aid to construction, makes the intention of Parliament clear beyond argument."
¶5.77 Of particular relevance to journalists is s5, which sets out offences relating to disclosure of information resulting from unauthorised disclosures. Section 5(2) provides that a person will be guilty of an offence where the person into whose possession the information, document or article has come, discloses it without lawful authority, knowing or having reasonable cause to believe that it is a protected disclosure under the provisions of the OSA, and the material has come into their possession either directly or indirectly by reason of disclosure by a crown servant or government contractors without lawful authority, or disclosed in breach of confidence.487 Section 5(2) applies to any information, document, or other article which is protected against disclosure by ss1-4. An offence is not committed under s5(2) unless the disclosure is damaging and the person makes it knowing or having reasonable cause to believe that it would be damaging, s5(3).
1940¶5.78 Further, it is an offence contrary to s5(6) of the Official Secrets Act 1989 for a person to disclose any information, document or other article which they know or have reasonable cause to believe to have come into their possession as a result of a contravention of s1 of the Official Secrets Act 1911.
¶Contempt of court 5.79 The law of criminal contempt of court is found in both the common law and the Contempt of Court Act 1981. In broad terms, criminal contempt can take one of two forms, contempt in the face of the court (for example a refusal to give evidence), or indirect contempt (for example publication of an article on a forthcoming trial). The law of contempt is based on the principle that the courts cannot and will not permit interference with the due administration of justice.488
¶5.80 At common law, contempt of court is an act or omission calculated to interfere with the due administration of justice: Att- Gen v Times Newspapers Ltd [1992] 1 AC 191. Examples of contempt of relevance include as follows.
¶5.81 It is contempt to publish material that is so defamatory of a judge or a court as to be likely to interfere with the due administration of justice by seriously lowering the authority of the judge or the court: R v Gray.489 It is only in exceptional cases that this jurisdiction will be exercised and this species of contempt was described as virtually obsolescent by Lord Diplock in Secretary of State for Defence v Guardian Newspapers Ltd.490 The offence will be made out where the publication is intentional, the article is calculated to undermine the authority of the court and the defence of fair criticism in good faith is inapplicable, see Ahnee v DPP.491 It has been acknowledged that restrictions on the freedom of expression will be necessary in some circumstances in order to maintain the authority and impartiality of the judiciary within the meaning of Article 10(2) of the ECHR: see Munby J in Att-Gen v Harris.492
¶5.82 It is also an offence to publish matter calculated to prejudice a fair trial. To establish the offence of contempt at common law it must be established that a) the publication of the material created a real risk of prejudice to the due administration of justice, and b) that the material was published with the specific intention of causing such a risk.493
¶5.83 The question is whether the publication created a substantial risk that the court of justice would be substantially impeded or prejudiced. The court must assess the risk of prejudice by looking at the prejudice from the date of publication. It is no defence that no prejudice was in fact caused, for example because there was no possibility that jurors saw the publication.
¶5.84 Contempt of court in this context may include publishing material which may prejudice a jury against an accused, publishing the photograph of a person charged with an offence where it is reasonably clear that the identity of the accused has arisen or may arise, by revealing matters which might be inadmissible in evidence and which may influence jurors or by sensational and misleading coverage of a trial.494
1941¶5.85 There is no common law power to make an order postponing the publication of a report of proceedings conducted in open court. This power is conferred by statute in some instances, for example the Contempt of Court Act 1981, the Children and Young Persons Act 1933, and the Administration of Justice Act 1960, s12.
¶Contempt of Court Act 1981 5.86 The Act has a twofold purpose – to remove liability for technical but venial contempt and to clarify the balance between a fair trial and a free press.495 The Act restricts limited liability for contempt under the "strict liability rules", deems specific conduct to be contempt of court and makes provision for penalties for contempt.
¶5.87 The strict liability rule imposed by the Act in s1, i.e. that conduct can be treated as contempt of court without requiring intent to interfere with the course of justice, applies to publications which create a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced, where the proceedings in question are active at the time of publication.496
¶5.88 The application of the strict liability rule to publications was considered by the Court of Appeal in Att-Gen v News Group Newspapers Ltd, which noted that there was a need to balance the public interest in general discussion being permitted and to ask whether the proceedings sought to be protected were sufficiently proximate to the apprehended publication to require protection.497 In Re Lonrho plc the House of Lords explained that the question whether a particular publication, in relation to particular legal proceedings which are active, creates a substantial risk that the course of justice will be impeded or prejudiced by a publication must depend primarily on whether the publication will bring influence to bear which is likely to divert the proceedings in some way from the course which they would otherwise have followed.498
¶5.89 The risk that has to be assessed is that which was created by the publication of the allegedly offending matter at the time when it was published. The Court should look at each publication separately as at the date of publication and consider the likelihood that it would be read by a potential juror, the likely impact of the article on an ordinary reader at the time of the publication and its residual impact on a notional juror at the time of the trial.
¶5.90 Section 2(2) sets out two separate risks, impede and prejudice.499 Impede means to slow down, delay, hinder or obstruct. Prejudice is to say or do that which is detrimental or injurious to the interest of that thing or person.500
1942¶5.91 In Her Majesty's Attorney General v MGN Ltd and another, the Divisional Court heard proceedings for contempt brought against the publishers of the Daily Mirror and The Sun newspapers in respect of articles published relating to Mr Christopher Jefferies. Mr Jefferies was arrested on suspicion of the murder of Joanne Yates in December 2011 and subsequently released from police bail without charge. Another man was subsequently charged with the murder of Miss Yates. The Divisional Court considered whether the newspapers were guilty of contempt on the basis that the criminal proceedings in which Mr Jefferies was involved at the date of publication were at serious risk of being prejudiced and/or impeded. The Divisional Court noted that the vilification of a suspect under arrest readily falls within the protective ambit of s2(2), as such publication may discourage witnesses from coming forward to provide information helpful to the suspect, and that in this case the impact of the articles on any potential defence witnesses would have been extremely damaging to Mr Jefferies. The impugned articles were held to have created substantial risks to the course of justice and to constitute contempt under the strict liability rule. The Daily Mirror was subsequently fined £50,000 and The Sun £18,000.501
¶5.92 More recently, in Her Majesty's Attorney General v Associated Newspapers Ltd and MGN Ltd the Divisional Court determined that the publication of material withheld from the jury in relation to the activities of Levi Bellfield but published after the jury had convicted him of kidnap and murder of Milly Dowler but while it was continuing to deliberate in relation to an outstanding charge of attempted kidnapping of another girl created "a separate and distinct risk of serious prejudice" which was substantial and over and above that which had been the consequence of television broadcasts.502
¶5.93 Sections 3 and 5 set out defences in respect of innocent publication/distribution and fair and accurate reports of proceedings respectively. Section 3 provides that a publisher is not guilty of contempt of court under the strict liability standard if, at the time of publication, having taken all reasonable care, they do not know and have no reason to suspect that relevant proceedings are active; and that a distributor of the publication is not guilty of the offence if, at the time of distribution, having taken all reasonable care, they do not know that it contains such matter and have no reason to suspect that it is likely to do so. Section 4 provides that a person is not guilty of contempt of court under strict liability in respect of a fair and accurate report of legal proceedings held in public, published contemporaneously and made in good faith. Section 5 provides that a publication made as or as part of a discussion in good faith of public affairs or other matters of general public interest is not to be treated as a contempt of court under the strict liability rule if the risk of impediment or prejudice to particular legal proceedings is merely incidental to the discussion.
¶5.94 Section 6(a) preserves any defences available at common law; for example fair and accurate report of proceedings of a public body, R v Payne and Cooper.503 Section 6(b) clarifies that no one can be found guilty of contempt who would not have been found guilty under the common law prior to the 1981 Act.
1943¶5.95 Any proceedings for contempt of court under the 1981 Act require the consent of the Attorney General, or for the proceedings to be instituted on the motion of a court having jurisdiction to deal with it.
¶5.96 Pursuant to s4(2) of the Act, the court has the power to order that the publication of any report of proceedings or any part of the proceedings be postponed for a period the court thinks necessary where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings or in other proceedings pending or imminent. The court has a discretion to hear representations from the press regarding the making of an order under s4(2), although it has been held that it would generally be right to hear from the press who represent the public interest in publicity which the court has to take into account in performing the necessary balancing exercise.504 The relevant practice direction is Practice Direction (Criminal Proceedings: Consolidation). Para I.3 notes that when considering whether to make an order under s4(2) it is likely that the court will wish to hear from representatives of the press.505
¶5.97 All orders made under s4(2) must include: a) the precise scope of the order, b) the time at which it shall cease to have effect, and c) the specific purpose for which it was made.506
¶5.98 In ex parte MGN Ltd Lord Judge CJ summarised the principles as follows. The first question is whether the reporting would give rise to a not insubstantial risk of prejudice to the administration of justice. The second question is whether an order made under s4(2) would eliminate that risk. If not, there would be no necessity to impose such a ban. If the order would achieve the objective of eliminating the risk the court has to consider whether the risk could satisfactorily be overcome by less restrictive measures. Third, even if there is no way of eliminating the perceived risk of prejudice, it does not follow that an order necessarily had to be made – the court's approach should be that unless it is necessary to impose an order it is necessary not to impose one and it if is necessary to impose an order at all it must go no further than necessary. A section 4(2) order should be a last resort.507 5.99 Section 4(2) is designed to enable the court to postpone the reporting of proceedings where the publication during the course of proceedings would prejudice those proceedings. The need for postponement cannot extend beyond the proceedings.508 5.100 The interplay between Article 8 (respect of private and family life) and Article 10 (freedom of expression) in this context was analysed by the House of Lords in Re A (a child) (identification: restriction on publication).509 Lord Steyn emphasised that full contemporaneous reporting of criminal trials in progress promotes public confidence in the administration of justice and promotes the values of the rule of law. The Court of Appeal in Re Trinity Mirror plc stated that it was:510
1944"impossible to over-emphasise the importance to be attached to the ability of the media to report criminal trials … this represents the embodiment of the principle of open justice in a free country. An important aspect of the public interest in the administration of criminal justice is that the identity of those convicted and sentenced for criminal offences should not be concealed".
¶5.101 The Supreme Court in Re Guardian News and Media stated that the press and law reporters should ordinarily be permitted to name litigants or parties to proceedings before the courts, although some exceptions had been created by statute. In other cases where anonymity might be necessary, the court had to balance Articles 8 and 10.511 5.102 Deliberate breach of reporting restrictions imposed under the Contempt of Court Act 1981 may constitute contempt of court, irrespective of whether there is any real risk of prejudice.512 Further contempt of court may be committed in certain circumstances where information relating to proceedings before a court sitting in private is published, s12 of Administration of Justice Act 1960. 5.103 Section 11 of the Contempt of Court Act 1981 provides that in any case where a court allows a name or other matter to be withheld from the public in proceedings before the court, the court may give directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary for the purpose for which it was withheld. The power to grant anonymity is that derived from the common law. A court can only exercise its powers under s11 to give directions prohibiting the publication of a name in connection with court proceedings if the court first legitimately exercised its power to receive evidence of information without it being disclosed to the public.513
¶5.104 Examples of where anonymity has been granted include where there is potential embarrassment arising out of a medical condition or because a witness fears violence or reprisals.514 However financial damage or damage to reputation which results from the commencement of court proceedings concerning a person's business is unlikely to amount to special circumstances entitling the court to restrict press reporting.515 5.105 Particular reporting restrictions to protect anonymity for certain categories of defendant are set out in statute. For example, s39 of the Children and Young Persons Act 1933 (CYPA) provides that a Crown Court or a Magistrates' Court may make an order protecting a juvenile's anonymity. This can be contrasted with the youth court, where reporting restrictions to protect the juvenile's identity apply automatically (see s49 CYPA). Alleged victims in a case involving one of the sexual offences set out in s2 of the Sexual Offences (amendment) Act 1992 are entitled to anonymity from the point when the allegation has been made. Nothing may be published that is likely to lead members of public to identity the alleged victim, and this continues for lifetime of the complainant. Section 3 permits a court to lift the restriction in certain circumstances, for example where publicity is required by the accused so witnesses come forward and the conduct of the defence is likely to be seriously prejudiced if the direction not given, or where the trial judge is satisfied that the imposition of the prohibition imposes a substantial and unreasonable restriction on the reporting of the proceedings and it is in the public interest to relax the restriction.516 Section 46 of the Youth Justice and Criminal Evidence Act 1999 allowsr a party to make an application for the court to give reporting directions in relation to a witness order than the accused if the direction is likely to improve the quality of the evidence of the witness or their co-operation in the case preparation of any party to the proceedings.
1945¶Offences involving writing, speech or publication 5.106 The common law offences of publishing an obscene libel, defamatory libel and sedition and seditious libel were abolished by s73 of the Coroners and Justice Act 2009 and the old "speech crimes" have now been replaced by other offences, including those under the Protection from Harassment Act 1997 and the Public Order Act 1986. Other offences relating to writing, speech or publication are now set out in the Obscene Publications Act 1959.
¶Obscene Publications Act 1959 5.107 It is an offence under s2(1) of the Obscene Publications Act 1959 for any person, whether for gain or not, to publish an obscene article, or for any person to have an obscene article for publication for gain (whether gain to themselves or gain to another). 5.108 Pursuant to s1(2) a person shall be deemed to have an article for publication for gain if with a view to such publication they has the article in their ownership, possession or control. Article is defined in s1(2) as:
"any description of article containing or embodying matter to be read or look at or both, any sound record, and any film or other record of a picture or pictures".
¶5.109 An article may be a single item, for example a novel, which must be considered in its totality. It may also comprise a number of items, for example a magazine. In the latter case each item must be judged individually and it is sufficient if the effect of any one of the items, taken as a whole, is to tend to deprave and corrupt. The point was analysed in Anderson [1972] 1 QB 304 where it was held that a novelist who writes a complete novel and who cannot cut out particular passages without destroying the theme of the novel is entitled to have his work judged as a whole, but a magazine publisher who has a far wider discretion as to what is inserted is to be judged on an item by item basis.
¶5.110 Publication is defined in s1 of the Act as including where a person (a) distributes, circulates, sells, lets on hire, gives, or lends it, or who offers it for sale or for letting for hire or (b) in the case of an article containing or embodying matter to be looked at or a record, shows, plays or projects it, or, where the matter is data stored electronically, transmits that data.
¶5.111 Obscenity is defined in s1 of the Act as follows:
"if its effect or (where the article comprises two or more distinct items), the effect of any one of its items is, if taken as a whole, such as to tend to deprive and corrupt persons who are likely, having regard to all the relevant circumstances, to read, see or hear the matter contained or embodied in it."
¶5.112 The definition of obscenity goes further than shocking or immoral suggestions, but must constitute a serious menace.517
¶5.113 It is a defence under s2(5) to a charge of publishing, for the accused to prove that they have not examined the article in respect of which they are charged and have no reasonable cause to suspect that it was such that their publication of it would make them liable to be convicted of an offence under s2. This provides a limited defence for defendants who acted as innocent disseminators of material.518 Where the accused is charged with having publication for gain pursuant to s1(3)(a) of the Obscene Publications Act 1964 (which is a separate offence) the law provides a similar defence, namely that the person had no reasonable cause to suspect that it was such that having it would make them liable.
1946¶5.114 Section 4 sets out a defence of public good, namely where the publication of the article is justified as being for the public good on the ground that it is in the interests of science, literature, art or learning, or of other objects of general concern. Whilst the publishers' intentions, namely whether the publication was intended to educate or corrupt, are not relevant to the offence itself (which looks simply at the effect of the publication), they will be relevant to a public good defence.
¶5.115 The maximum penalty on indictment is five years' imprisonment, a fine, or both; or six months' imprisonment or a fine not exceeding the statutory maximum or both summarily.
¶The Children and Young Persons (Harmful Publications) Act 1955 5.116 The publication of material harmful to children and young persons is rendered an offence pursuant to s2 of the Children and Young Persons (Harmful Publications) Act 1955 and this applies to any book, magazine or other like work which is of a kind likely to fall into the hands of children or young persons and consists wholly or mainly of stories told in picture portraying the commission of crime, acts of violence or cruelty or incidents of a repulsive or horrible nature in such a way that the work as a whole would tend to corrupt a child or young person into whose hands it might fall.
¶5.117 The Protection of Children Act 1978 and the Criminal Justice Act 1988 also establish offences relating to the making, possession, publication and distribution of indecent images of children.
¶Protection from Harassment Act 1997 5.118 Section 2 of the Protection from Harassment Act 1997 creates an offence when a person pursues a course of conduct which amounts to harassment of another and which they know or ought to know amounts to harassment of the other. Harassment is an arrestable offence, so that the police can apprehend a person whom they have reasonable grounds to believe has committed it. The victim can also bring civil proceedings, including applying for an injunction restraining a person from acting in a manner which constitutes harassment. If the victim considers that the harasser has engaged in conduct prohibited by the injunction, a power of arrest may be attached to the injunction, breach of which without reasonable excuse is a criminal offence.519
¶5.119 Harassment is defined in s7 as including alarming the person or causing the person distress. A course of conduct must require conduct on a least two occasions, either in relation to one person or one occasion each in relation to two or more persons. It has been held that publication of press article is in law capable of amounting to harassment: Thomas v News Group Newspapers Ltd.520 It was common ground before the court in that case that there must be some exceptional circumstances which justify sanctions and the restriction on the freedom of expression before publications are capable of amounting to harassment.
¶5.120 In the context of a civil claim for harassment pursuant to the PHA 1997, the courts have interpreted Thomas in the following way. For the court to comply with s3 HRA, it must hold that a course of conduct in the form of journalistic speech is reasonable under PHA s1(3)(c) unless, in the particular circumstances of the case, the course of conduct is so unreasonable that it is necessary (in the sense of a pressing social need) and proportionate to prohibit or sanction the speech in pursuit of one of the aims listed in Art 10(2), including, in particular, the protection of the rights of others under Art 8.521
1947¶5.121 It is not only publication itself but news gathering activities which may be caught by s2. For example, the attention and investigations of unwelcome reporters and photographers may amount to distress and constitute harassment under the Act.
¶5.122 The powers in the PHA 1997 were increased by the Criminal Justice and Police Act 2001 and the Serious Organised Crime and Police Act 2005. Section 42 of the 2001 Act gives the police powers to give directions to stop harassment of a person in their home, for example where there is a scrum of reporters and film crew outside a person's home. Such directions can be to go away, and to stay away for up to three months. It is an offence to act outside a person's home in a way which will cause harassment, alarm or distress to a resident or neighbour, for the purpose of persuading a person to do something they are not under any obligation to do, or to do something which they are not entitled or required to do (see s42A). SOCA added a new offence to the PHA 1997, involving harassment by two or more persons which is intended to persuade the victim either to do something which they are not obliged to do, or not to do something they are entitled to do, s1(1A).
¶Public Order Act 1986 5.123 Section 4A, inserted into the Public Order Act 1986 in 1994, provides that:
"A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he... (b) displays any writing, ... which is threatening, abusive or insulting, thereby causing that or another person harassment, alarm or distress".
¶5.124 In contrast to the PHA, the Public Order Act requires intent to cause harassment, alarm or distress. It has been held that where a person posts an image of another on a website that is available to the public, the fact that the subject is unaware of it until shown it by a third party does not break the chain of causation, and it would also be immaterial that if at the time the harassment, alarm or distress was caused the mage was no longer displayed on the website.522 5.125 Section 5 provides for a similar type of offence but does not require intent to cause harassment, alarm or distress. This section prohibits the display of:
"any writing, sign or other visible representation which is threatening, abusive or insulting, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby".
¶5.126 The relationship between s5 and Article 10 of the ECHR was summarised as follows: i) the starting point is the right to freedom of expression, iii) that right must extend beyond protecting people who hold popular, mainstream views so that minority views can be freely expressed even if distasteful or offensive to some, and iii) the restrictions in Art 10(2) need to be narrowly construed and the justification for invoking the criminal law is the threat to public order.523 It is a defence pursuant to s5(3)(c) for the defendant to prove that his conduct was reasonable. 5.127 Section 18 creates an offence of using words or behaviour or displaying written material intending to stir up racial hatred. It provides that a person who uses threatening, abusive or insulting words or behaviour or displays any written material which is threatening, abusive or insulting is guilty of an offence if he intends thereby to stir up racial hatred or having regard to all the circumstances racial hatred is likely to be stirred up.524 5.128 Section 19 creates an offence of publishing or distributing written material stirring up racial hatred. This section provides that a person who publishes or distributes written material which is threatening, abusive or insulting is guilty of an offence if, (a) they intend thereby to stir up racial hatred, or (b) having regard to all the circumstances racial hatred is likely to be stirred up. References to publication or distribution of written material are to its publication or distribution to the public or a section of the public. It must be shown that the material was generally accessible to all or available to all, or placed before or offered to the public. 5.129 Part 3A of the Act contains provisions about offences involving the stirring up of hatred against persons on racial grounds, or hatred on grounds of sexual orientation. The thrust of the offence contained in s29B is to criminalise the use of threatening words or behaviour or display of written material where the defendant intended thereby to stir up religious hatred or hatred on the grounds of sexual orientation. Section 29C provides that a person who publishes or distributes written material which is threatening is guilty of an offence is they intend thereby to stir up religious hatred or hatred on the grounds of sexual orientation.
1948¶5.130 There are provisions for the protection of freedom of expression (as required by the Strasbourg cases cited below), including s29JA. This provides that:
"… the discussion or criticism of sexual conduct or practices or the urging of persons to refrain from or modify such conduct or practices shall not be taken of itself to be threatening or intended to stir up hatred".
¶Communications Act 2003 5.131 Section 127(1) of the Act creates an offence when a person sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character, or causes any such message or matter to be so sent. Section 127(2) creates an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, a person sends by means of a public electronic communications network, a message that they know to be false, causes such a message to be sent, or persistently makes use of a public electronic communications network. 5.132 This section has been recently considered by the Divisional Court in hearing an appeal against the conviction of Mr Paul Chambers for sending a public electronic message that was grossly offensive or of an indecent, obscene or menacing character contrary to s127(1)(a) and (3) of the Communications Act 2003. Mr Chambers, upon hearing that an airport he was due to travel from was closed due to adverse weather conditions, posted a message on twitter to the effect that the airport had a week to resolve the issue or he would be "blowing the airport sky high!!" Mr Chambers was convicted on the basis that the content of the message was of a menacing character. The Divisional Court concluded that a tweet was a message sent by an electronic communications service and thus falls within s127(1) of the Act, however, on an objective assessment, the decision of the Crown Court that the tweet constituted or include a message of a menacing character was not open to it. The Court held that a message which does not create fear or apprehension in those to whom it is communicated, or who may reasonably be expected to see it, falls outside the Act for the simple reasons that the message lacks menace. The Court considered, obiter, the mental element of the offence and held that the offender must have intended the message to be of a menacing character or be aware of, or recognise the risk, at the time of sending the message that it may create fear or apprehension in any reasonable member of the public who reads or sees it. If the sender intended the message as a joke, it is unlikely that mental element of the offence would be established.
1949¶Conspiracy and secondary liability 5.133 In relation to each of the offences identified above there is also potential conspiracy liability contrary to s1 of the Criminal Law Act 1977 and potential secondary liability (see s8 of the Accessories and Abettors Act 1861) or encouraging or assisting an offence (ss44-46 of the Serious Crime Act 2007).
- Criminal procedure Police powers of investigation in relation to journalists 6.1 As a general rule, in the event that the police seek to make inquiries as part of a police investigation a journalist is in the same position as any other member of the public in that they are under no general duty to provide assistance. In exceptional circumstances, the police have the power to insist on answers being provided to questions in the context of suspected breaches of s1 of the Official Secrets Act 1911.525 Further, investigators and inspectors appointed under the Financial Services and Markets Act 2000 to investigate specific allegations in relation to a range of regulatory offences have powers to compel answers from interviewees the production of information and documents.526
¶6.2 Police powers of investigation, including powers of entry and search of premises, are contained primarily in the Police and Criminal Evidence Act 1984 (PACE). A general power to search any premises occupied or controlled by a person who is under arrest for an indictable offence can be exercised if a police officer has reasonable grounds for suspecting that the premises contain relevant evidence.527 Once at the premises, a police officer has the power to seize anything which they have reasonable grounds for believing they would be authorised to search and seize, where it is not reasonably practicable to determine at the time whether they do have such authorisation.528 However, these powers are only available once a person is under arrest and are not available at a preliminary stage of an investigation. Further, if a police officer seizes anything which appears to be excluded material or special procedure material (as defined below), this must be returned as soon as reasonably practicable unless it cannot be separated from other property it is lawful to retain.529
¶6.3 By statute, journalists occupy a privileged position in relation to material in their possession; it is more difficult for the police to obtain this material which is hedged with greater legal protection. In practice, therefore, the police mostly rely on the specific provisions in PACE in order to obtain journalistic material, although the statutory powers of search and seizure are modified in relation to material held by journalists in circumstances where the information sought falls within the definition of "excluded material" or "special procedure material".
1950¶6.4 Journalistic material for the purposes of PACE is defined as material acquired or created for the purposes of journalism, but only if it is in the possession of a person who acquired it or created it for that purpose, and a person will be deemed to have acquired it for that purpose if it was given to them with the intention that it be used for that purpose.530 The purposes of journalism are not defined in the Act, although the Supreme Court has recently considered the phrase "purpose of journalism" in the context of the Freedom of Information Act in Sugar v British Broadcasting Corporation and the majority held that the phrase should be narrowly construed to mean where an immediate object of holding the information is to use it for the purpose of journalism.531 This requires a direct link between the holding of the information and achievement of its journalistic purposes. The wider 'dominant purpose' test was rejected.532
¶6.5 Excluded material for the purpose of s11(1) of PACE 1984 includes journalistic material consisting of document or records, if it is held in confidence. The paradigm example of excluded material is where a source gives information to a journalist on condition that his identity is not disclosed in any publication of the information. Excluded material generally does not include film taken by broadcasting crews or photographs, unless obtained in circumstances giving rise to a duty of confidence.
¶6.6 Journalistic material other than that falling within the definition of excluded material is defined as special procedure material for the purposes of s14 of PACE. Special procedure material is excluded from a warrant to search or enter premises issued by a justice of the peace, s8(1) PACE.
¶6.7 Section 9(1) of PACE enables access to be obtained to "special procedure material" and "excluded material" for the purposes of a criminal investigation, provided that the conditions set out in Schedule 1 of the Act are met.
¶6.8 Schedule 1 of PACE permits a constable to apply to a Circuit Judge for a Production Order, or in some circumstances a search warrant, where particular access conditions are met.
¶6.9 The first set of access conditions applies to applications for special procedure material and only permit a warrant to be granted where:533
1951(a) there are reasonable grounds for believing an indictable offence has been committed; (b) material consisting of or including special procedure material (but not excluded material) is held at the premises specified in the application or controlled by the person named in the application; (c) that the material is likely to be of substantial value, whether by itself or together with other material, to the investigation in connection with which the application is made;
(d) the material is likely to be relevant evidence; (e) other methods of obtaining the special procedure material have been tried without success or have not been tried as they would be bound to fail; and (f) it is in the public interest to produce or allow access to the material, having regard to the benefit of the investigation if the material is obtained and the circumstances under which the person holds the material.
¶6.10 The second set out access conditions which applies to excluded matter provide that an order may be made where:534
(a) there are reasonable grounds for believing that there is material which consists of or includes excluded or special procedure material on the premises owned by the person named in the application, and/or premises occupied or controlled by the person set out in the application; (b) a warrant would have been appropriate and available, but for the repeal by s9(2) of PACE of all provisions allowing warrants to be issued for such material.
¶6.11 Examples of circumstances in which a power to issue a search warrant in respect of an offence being investigated prior to PACE coming into force include investigations into stolen goods and offences under the Official Secrets Act. It is therefore unlikely that journalistic material would be sought pursuant to the second condition and case law indicates that journalist material is generally sought by the police under paragraph 2 of Schedule 1. It can be observed that there is very limited scope for obtaining access to excluded material.
¶6.12 Again, for the protection of journalistic privilege, the procedure for obtaining a production order is fairly rigorous. An application must be made to a Circuit Judge and notice must be given to the person in possession of the material.535 A judge may only make an order if satisfied that one of the access conditions is fulfilled and the judge must exercise their powers with great care and caution and must be shown such material as is necessary to enable them to be satisfied before making the order, and told of anything which may weigh against the making of the order.536 The judge must determine whether the conditions are met. It is not sufficient to simply consider whether the decision of the constable that the conditions were met is reasonable. The judge retains discretion to refuse to grant the order, even if the necessary condition is satisfied, and this permits the possibility that in an appropriate case, the view may be taken that there is a lack of proportionality between what might be gained to the investigation as against stifling public debate.537 Once an order has been made, it is subject to challenge by way of judicial review.
¶6.13 On a number of occasions the police have used these powers to obtain orders requiring the press to hand over film and photographs of demonstrations or events giving rise to public order offences. These provisions have been recently analysed in the case of R (on the application of British Sky Broadcasting Ltd and others) v Chelmsford Crown Court.538 The claimants included BSkyB, ITN, BBC, an independent production company and a freelance video journalist who had filmed for news purposes the Dale Farm evictions of travellers. Essex Police sought and were granted orders for production of footage on the basis that the footage would be of substantial value to police investigations into offences of violent disorder and other offences. The orders were challenged by way of judicial review. The Divisional Court held that full account must be taken of Article 10 considerations when determining an application under Sch 1.539
1952¶6.14 The court further noted that there was a need to balance the competing public interest considerations in the context of journalistic material and, whilst it is difficult to dispute that there is a real public interest in tracing any of those persons who were involved in public disorder or violence, that had to be set against the level of interference with the Claimants' Article 10 rights inherent in the production orders made. Having regard to the terms of Art 10(2), it was for the Essex Police to demonstrate that this degree of interference and the wide scope of the production sought was necessary and proportionate because of the "substantial value" attaching to the relevant material in the context of the investigation. On the facts there was insufficient evidence to justify this conclusion.540
¶6.15 It was noted that whilst the statutory provisions allowing disclosure orders can be of great value in tracing those responsible for public order and other offences and thus in serving the public interest, the importance of establishing the access conditions should never be underestimated. There is a burden to be discharged and disclosure orders against the media, intrusive as they are, can never be granted as a formality. There must at least be cogent evidence as to; (i) what the footage sought is likely to reveal, (ii) how important such evidence would be to carrying out the investigation, and (iii) why it is necessary and proportionate to order the intrusion by reference to other potential sources of information. In these proceedings, the burden was not discharged.541
¶6.16 Other material that does not fall within the definition of journalistic material that attracts the categorisation of "excluded" or "special procedure" material, is subject to normal procedures for search warrants and can be granted by a magistrate without any right on the part of the media to object and without a public interest test.
¶6.17 An issue of some importance is whether "journalistic material" includes material which has been obtained with the intention of furthering a criminal purpose, or, put another way, whether the protections set out in PACE for "excluded" or "special procedure" material still apply where the material has been acquired in furtherance of a crime.542
¶6.18 PACE includes an express caveat in the context of legal professional privilege that items held with the intention of furthering a criminal purpose are not subject to legal privilege, however there is currently no equivalent provision for journalistic material.543 There is no direct authority which addresses the issue of whether journalistic material will not be held under an obligation of confidence where it has been obtained in the context of criminal behaviour, although the case law on the duty of confidentiality more generally acknowledges that the public interest in protecting confidences can be outweighed in certain circumstances, For example, a person cannot be a confidant in respect of a crime of fraud.544 It is therefore currently unclear whether material obtained in the context of criminal behaviour by a journalist would attract the protections of Schedule 1 by virtue of being excluded or special procedure material.
1953 1955¶appendix 5
EVIDENCE RELEVANT TO THE GENERIC CONCLUSIONS ON THE RELATIONSHIP
¶BETWEEN POLITICIANS AND THE PRESS: