DPP publishes interim guidance on journalist prosecutions

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The Director of Public Prosecutions (DPP) has published interim guidelines on what prosecutors should consider when making decisions relating to the media and when considering the possible public interest.

DPP Keir Starmer QC told the Leveson inquiry in February that he would be issuing the new guidelines as the Crown Prosecution Service did not have a policy just relating to journalists and the public interest defence.

The guidelines, which are now open to consultation , say "they are designed to give clear advice to prosecutors who have been asked either for a charging decision or for early advice to the police or other investigators in these sensitive and difficult cases".

"These guidelines are likely to be relevant when prosecutors are considering whether to charge journalists with criminal offences that may have been committed in the course of their work as journalists. They are also likely to be relevant when prosecutors are considering whether to charge others whose interaction with journalists may have involved the commission of a criminal".

Advice includes what prosecutors need to establish from the start, such as whether there was a right to receive and impart the information and then additionally whether prosecution itself would be in the public interest.

The guidance also outlines five examples of "conduct which is capable of serving the public interest", including the disclosure of a criminal offence or that there has been a miscarriage of justice.

The examples are listed below, taken from the guidelines published today:

• Conduct which is capable of disclosing that a criminal offence has been committed, is being committed, or is likely to be committed.
• Conduct which is capable of disclosing that a person has failed, is failing, or is likely to fail to comply with any legal obligation to which s/he is subject.
• Conduct which is capable of disclosing that a miscarriage of justice has occurred, is occurring or is likely to occur.
• Conduct which is capable of raising or contributing to an important matter of public debate.
• Conduct which is capable of disclosing that anything falling within any one of the above is being, or is likely to be, deliberately concealed.

Prosecutors are also told in the guidelines to look at "the overall criminality" and "harm caused", with the guidelines outlining a number of considerations:

• The impact on the victim(s) of the conduct in question, including the consequences for the victim(s).
• Whether the victim was under 18 or in a vulnerable position.
• The overall loss and damage caused by the conduct in question.
• Whether the conduct was repeated or likely to continue.
• Whether there was any element of corruption in the conduct in question.
• Whether the conduct in question included the use of threats, harassment or intimidation.
• The impact on any course of justice, for example whether a criminal investigation or proceedings may have been put in jeopardy.
• The motivation of the suspect insofar as it can be ascertained (examples might range from malice or financial gain at one extreme to a belief that the conduct would be in the public interest at the other).
• Whether the public interest in question could equally well have been served by some lawful means.

Public consultation on the guidelines, and specific questions relating to them, will run until 10 July.

The guidelines also highlight the "criminal offences most likely to be committed in cases affecting the media", which include:

• Bribery Act 2010
• Computer Misuse Act 1990
• Data Protection Act 1998
• Misconduct in a public office
• Official Secrets Act 1989
• Perverting the Course of Justice contrary to common law
• Regulation of Investigatory Powers Act 2000
• Serious Crime Act 2007