This week Kier Starmer, MP, the former DPP gave a speech whereby he advocated that journalists ought to be entitled to a defence of “public interest” when publishing stories for which they had made payment. This was an interesting development as it was under Starmer that Operation Elveden began – an investigation into journalists paying public officials for stories.

As a result of the investigation dozens of journalists were put on trial for the offence of Conspiracy to commit misconduct in public office, not because they themselves held public office, but because they had paid those who did, for example prison guards and police officers.

In the vast majority of cases the payments to the sources had led to the publication of stories which the journalists stated they felt the public had a right to know about, the difficulty was that there was no “public interest” defence in relation to the offence of misconduct in public office.

A number of journalists were convicted at first instance, despite having explained to the jury that the culture of paying sources was endemic within the newspaper industry, that no senior figures had ever told them that paying for stories was wrong, and furthermore they were not even aware of the offence of misconduct in public officer. The defences run ranged from a lack of knowledge as to somebody’s status as a public officer to an argument that it would be morally wrong to convict a journalist simply for doing their job.

Post conviction the journalists took their case to the Court of Appeal who, in effect, re wrote the law to create a public interest defence. The Court of Appeal held that a jury had to be told that what the public officer was doing was so wrong that it cried out for criminal conviction, and in deciding what was criminally wrong they had to look at the harm caused by the misconduct and then compare that with the good that came from it. This test enabled defendants to ask juries to perform a balancing act and assess whether it was in the public interest that the journalists published the information they had been given.

As a result of the Court of Appeal ruling a number of journalists had their convictions quashed and the CPS reviewed further pending prosecutions, dropping all but a handful of them.

There is an argument that the CPS should have applied their Code of Crown prosecutors public interest test more stringently pre charge, and the cases should never have been brought to court in the first place, Keir Starmer was ultimately the man responsible for authorising those initial charges – thus for him to make the speech he did last week may rankle amongst those journalists whose lives were put on hold whilst they faced trial by jury.

This country has had a long and proud history of a free press, Keir Starmer’s speech is a late reaction to a Court of Appeal judgment that recognised that tradition and fought to protect it.

Written by Michelle Heeley.