Is the public interest a valid defence for phone hacking?

Speaking on Radio 4's Media Show in April, former Daily Mirror editor Piers Morgan asked:

"What would have happened, for example, if the News of the World had been hacking Osama bin Laden's phone and had heard him planning another atrocity like 9/11? It's just a simple question – would that have been permissible even though technically it breached the latest data protection laws? It’s an interesting question to throw out there."

Morgan, who is himself coming under increasing pressure over phone-hacking allegations, was essentially asking: under what circumstances is the public interest a valid defence for phone hacking?

The question has been somewhat neglected during the phone-hacking scandal, but it surfaced on Friday when blogger Guido Fawkes ran a story accusing Guardian investigations editor David Leigh of lying when he denied teaching his City University students how to hack phones.

Fawkes' somewhat underwhelming smoking gun was a 2006 article by Leigh himself in which he wrote: "I try to explain newspaper methods to my current university journalism students".

On Sunday Leigh added on Twitter: "Do I train my #CityU journalism students how to hack phones? No, I teach them what goes on in Fleet St and ask them to think".

More interesting than the issue of Leigh's students though is his admission that he hacked the phone of a "corrupt arms company executive" and his defence for doing so. The Guardian man claims there is a difference between what he did and the behaviour of tabloid hacks like Clive Goodman, the News of the World royal reporter who was jailed in 2007 for phone hacking:

"[I] was not interested in witless tittle-tattle about the royal family. I was looking for evidence of bribery and corruption. And unlike the News of the World, I was not paying a private detective to routinely help me with circulation-boosting snippets. That is my defence."

But how does that defence stack up legally? Would a journalist be able to use a public interest defence in court?

Intercepting voicemail messages without permission is an offence under the Regulation of Investigatory Powers Act 2000 (RIPA). Unlike the Data Protection Act 1998, which covers such journalistic practices as misrepresentation and subterfuge, RIPA carries no public interest defence.

However, journalists arrested for phone hacking can either be brought before the Magistrates Court or the Crown Court, depending on the severity of the offence. In the Magistrates Court a judge would simply find any attempt to mount a public interest defence inadmissible, but a trial in the Crown Court – where Goodman was convicted for phone hacking in 2007 alongside private investigator Glenn Mulcaire – means going before a jury.

Although the judge can instruct a jury that the public interest is not an admissible defence for the charge, it is ultimately up to the jury to decide on the validity of the argument.

This was how whistleblower Clive Ponting, a civil servant in the Ministry of Defence, beat charges against him in 1985. Ponting had breached the Official Secrets Act by leaking documents about the Belgrano affair to a Labour MP. Like RIPA, the Official Secrets Act has no provision for a public interest defence (it did to begin with, but it was stripped out in 1911). Despite trial judge Anthony McCowan ruling that it was no defence for Ponting to argue that he was acting in the public interest, the civil servant did so before a jury and was acquitted.

Leigh finishes his article by criticising "tabloid cockroaches" for making "no distinction between gossipy intrusions and genuine public interest investigations".

When it comes to phone hacking, neither does the law at the moment. Neither of the acts under which a phone hacking case could be prosecuted – RIPA or the Computer Misuse Act, the provisions of which are vague enough to cover mobile telephones – carry a public interest defence. But anyone indicted under either would be likely to appear before a jury, making the issue of the public interest not completely insignificant.

Correction: This article initially read "Listening to voicemail messages without permission is an offence under the Regulation of Investigatory Powers Act", it has been amended to read "Intercepting voicemail messages..."

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