Today (Monday 20^th February), a group of us are formally launching a new campaign. As the title of this post suggests, we are campaigning to #saveFOI.

This week sees the beginning of the long heralded post-legislative scrutiny of Freedom of Information promised by the Coalition Government last year. On Tuesday morning, the first witnesses, including the head of the Campaign for Freedom of Information, Maurice Frankel, will be appearing before the Justice Select Committee.

Last week the Committee published the written evidence that it has received. What is striking about this evidence is how many public authorities have called for restrictive amendments to the Freedom of Information Act. Some have called for charging to be introduced. Some have suggested that the cost limit for answering requests should be brought down, so that more demanding requests can be refused. Others have even suggested bringing in whole new exemptions for information that they hold.

This comes hot on the heels of comments from the outgoing Cabinet Secretary Lord Gus O’Donnell who has been openly critical of the Information Commissioner’s decisions in respect of Cabinet minutes. Others will be aware that our former Prime Minister Tony Blair considered himself a “nincompoop” for introducing FOI. There have been plenty of others queuing up in recent months to add their voices of complaint to the chorus of disapproval of this legislation, only 7 years after it came into force.

It is hard to think of another requirement on public bodies that attracts such venom and open hostility. And these views are diametrically opposed to the views of most people outside the public sector who welcome this important tool for holding public authorities to account.

Even some inside Government are suspicious of the motives of the Act’s government critics. The Minister responsible for FOI in the Ministry of Justice, Lord McNally, commented in a recent House of Lords debate that:

 “…when Prime Ministers and mandarins object, this Act might actually be doing something that it was intended to do.”

And yesterday, writing in the Observer, the Information Commissioner himself made it quite clear where he stands. He dismissed Lord O’Donnell’s criticisms, and dispensed with suggestions from universities that they need a whole new exemption for research data.

Nevertheless, the mood music suggests that there is a desire to contain this young legislative upstart. Some of us even inside the public sector feel very strongly that to do so would be a backwards step. Yes, some individuals abuse the right to access information. Some requests are expensive to answer. It can feel personal when a request affects your work. But the overall benefits, whilst difficult to quantify in hard numbers, far outweigh the problems.

It has forced public authorities to open up in a way that would have been unimaginable a decade ago. It has allowed groups from protesters against library closures to disability rights campaigners to make their case to Government on something approaching an equal footing. It has exposed unfairness and inequality in our country. I believe it is starting to make an impact on the effectiveness and efficiency of some public authorities. In short, it makes the UK a fairer country to live in.

And the UK doesn’t exist in isolation. Countries across the globe are adopting FOI legislation. As Nigeria and the Philippines debate the opening up of their governments, is it right that the UK can be considering reducing the rights of its citizens?

So we are standing up to make the case for FOI this year. And we want as many people as possible to join us. So please take a look at our campaign website and consider how you can help us to #saveFOI.

Paul Gibbons is creator of the FOI Man blog and is @foimanUK on Twitter. 

• Law and Media Round Up – 13 February 2012 at this link
  

UCL and Bindmans co-host an annual debate on a topic concerning the Press, and this year saw the fourth such debate in the series. With all that has gone one in the preceding twelve months, this debate was incredibly ‘on-topic’ and was unsurprisingly incredibly packed with attendees from such large law firms, news organisations, and others involved in the Press.

The speakers for the debate were:

• The Rt Hon Tessa Jowell, MP for Dulwich and West Norwood;
• Martin Moore of the Media Standards Trust;
• Max Mosley; and
• Gill Phillips, Director of Editorial Legal Services for the Guardian.

The chair of the debate was Hugh Tomlinson QC of Matrix Chambers., with introductions made by Professor Dame Hazel Genn DBE, Dean of Laws at UCL, and Tamsin Allen, partner at Bindmans LLP.

Tomlinson started by setting a few ground rules for the discussion and two key questions: is it time for a privacy law, and is it time for statutory regulation of the Press? With the Leveson Inquiry in full flow and being broadcast, people are incredibly aware of the power of the Press, more so than during the time of the Calcutt Commission which advised the creation of a Press Complaints Commission.

The first speaker up was Tessa Jowell, who said she was basing her talk on her time at DCMS. For her, this is a key moment in time for a change. Her view was that we should not get stuck in past events, and that this period was something bigger than just between politicians and the media. It was the shock of the NewsCorp dealings with the police to get the public concerned with this issue: the public are more discerning than they are given credit for and the knowledge of the relationship between politicians and the media is well known.

She followed this with the point that nobody was that interested in the revelations about public figures; the public expect it as part of a celebrity’s media relationship. However, despite the revelations, a free Press is a must. The alternative is a lot worse, so there must be a better way to get a good settlement and a good balance.

Jowell said that she has no sense of political scores being settled by the hearings [AF note: though this may need to be re-evaluated in light of the Dacre/Grant spat]. The Press should be free, but needs a better understanding of what is acceptable as a method of getting a story. The Press should also be free of those with discernible vested interests, including those of the editors (especially their pact of mutual protection). There is a clear need for duality and balance; when the Press works along those lines it does its job best. The CMS committee is doing an excellent job of redrawing that balance.

Technology is allowing people to self-inform, and it is moving quickly. In Jowell’s opinion, the Leveson Inquiry is solving yesterday’s problems. There still needs to be concern about the ability of everyone to access justice relating to the Press, not just the rich. Serving in public life should be upheld as a good thing, but there is a risk that the quality of people coming forward will degrade due to the press risk. As DCMS Secretary, Jowell believed that media literacy was something to be promoted, especially the notion of words and timing. Instead, she feels that regulation is only the starting point; we need to look to an engaged and assertive public demanding the freedom of an intelligent Press.

Martin Moore followed up; he agreed with Jowell in that privacy as an issue is far bigger than the Press. Moore made reference to a Mark Zuckerberg interview where he stated that the age of privacy is over, and he would have made all information public from the start. He pointed out that the practical boundaries of private life have changed, the restraints have almost disappeared, publication is easy – especially with Facebook. He pointed to the suicide of Tyler Clementi -  the publication of videos and the consequences show that the practical restraints have gone, but we need something to replace them. People generally believe that there should be some privacy protection; people should respect the line between the public and the private. If there are no formal constraints, some agencies will use any means to get the story.

However, Moore pointed to the increased use of legal constraints to fill the gap of the now-defunct practical restraints, but this causes further tensions about where the line lies. That this legal protection exists is sensible, but the real question is how to protect the journalist’s right to intrude in the public interest.

This public interest defence barely exists in the protection legislation that is used often, using the case against the Guardian journalist to reveal her source as a good example of this. He set out some themes that form a public interest defence in codes created for organisations:

(i)           preventing the dissemination of misleading information;

(ii)          disclosing decision making for the public interest;

(iii)         for health and/or safety;

(iv)         to prevent corruption; or

(v)          for the prevention of crime.

However, the one that never gets included is to test allegations of hypocrisy. A right of intrusion would better define the line between public and private. Good journalists will have the confidence to act, bad journalists will think twice.

Gill Phillips followed Moore. Her talk was based upon the Press’ perspective. The state of a democracy is shown by the health of its press. She doesn’t believe that statutory regulation is the answer, but there needs to be a new way of regulating. However, in that search for a new way, we must keep our perspective. Phone hacking is not a failure of regulation, but rather an instance of criminality at a paper and a failure of the police to investigate. Since printing has started, there have been state attempts to control the Press [AF note: a legal history lesson is always welcome].

Illegal printing has in the past resulted in hanging or disembowelling. However, this control works both ways, with the Press involved in a back-scratching relation with the political elite. History tells us that the instinct of those in power is to control the Press strongly, but this is coupled with the knowledge that regulation distorts access to the truth. Phillips suggested that a form of ‘PCC max’ is required, as self-regulation was never full self-enforcing, but also pointed out that questions exist over blogging, as they operate on the edge of reporting. There will always be those who engage in luminal activities, and more top down regulation will not help, so it is not needed. What needs to be remembered is that this moment in time is part of a wider battle over access to information.

Max Mosley’s opening point was that we don’t want a controlled press, but neither do we want a press-controlled government. People who aren’t British citizens can control the actions of the British government [AF note: his mention of Tony Blair’s visit to Australia makes it clear who this is a reference to], and while the PCC has not failed to make the rules, it has not enforced those rules and cannot do so. He asked how we can enforce them without state control, and his suggestion was to separate the rule-making arm from the enforcement art, which should be completely independent. At this point Phillips interjected, saying that the creation of the free press has been a long fought battle, but admits that some changes do need to be made. Mosley said that there is a clear need to define the public interest in statute. Any such statute must contain some presumptions as to what the public interest is, but it is important that these presumptions can be rebutted. He also requested that any such statute allows the prevention of publication if it is required.

Following the speeches, there was time for some questions:

The first question looked at the Press and incivility; as women are being objectified and disabled people attacked for claiming benefits, what did the panel think of this?

Mosley pointed to the evidence given by Moy at the Leveson Inquiry which showed that this is a problem that is coming to the fore, including collusion with government departments over stories to help foster an attitude towards policies. Jowell furthered this by remarking that some papers focus more on the sales they make to certain groups more than the dissemination of information. However, she made the very important point that we can rely on drafting regulating principles well, to safeguard every reader from offence – we should rely on people being offended on behalf of others and to refuse to buy the paper.

Mosley set out a plan for a free tribunal that would give access to anyone feeling aggrieved by the Press, with a hearing being allowed on one of four grounds: defamation, accuracy, offence, and misleading information. Phillips also said that offence is a matter of internal culture, and the appropriate use of words. Complaints are also learning opportunities for the Press, working out when they go too far. It is the only way the Press learns, such as describing victims in a derogatory way, i.e. acknowledging that a murder victim is a prostitute when such a description is not required.

A second question noted that this is just a part of a wider debate, and asked what the panel thought about whether a press commissioner should be a privacy commissioner. Another question asks why no-one seems to have done anything about the police passing information to the press.

Jowell agreed that the police passing information is an accepted fact, that it helps to supplement the income. As the cases are dealt with by the relevant authority, the government didn’t look at the problem systemically. However, it is important to remember that most police don’t do this, that they feel ashamed and wish to reassert the professionalism of the police. Mosley did however ask why the Home Secretary has never required the Commissioner for Police to investigate. He also referred to Hugh Grant’s statements in evidence that a call to the police would lead the journalists to arrive before they do. Phillips agreed with this, as the journalists knew that Harry Redknapp was to be arrested; the question is how.

Tomlinson then brought the question back to one of a privacy commissioner. Moore said that that the idea sounds sensible but looking at the ICO, the commitment and practicalities regarding resources would need to be met and safeguarded to make it work. Mosley returned to his idea of a free tribunal to adjudicate matters.

Following on from this, a question was asked about who should sit on such a tribunal to ensure that it is a fair deal for both the press and public.

Mosley’s response was barristers or solicitors could the tribunal ‘judges’, but as with the PCC as it stands, it should be funded by the Press. He noted that this is cheaper than the overall cost of litigation. Jowell liked the idea of a tribunal and the presumptions for public interest in a statute, but also suggested that members of the public be used for the tribunal as well. Jowell said that any system would require proportionality and access to representation for those who want it.

A fifth question noted that the definition of public interest is a key issue but asked how it could be defined. Following that, should people in the public eye be held to a higher standard? A sixth question asked how the public interest matter sits with the need to sell papers, and a seventh question asked how privacy on the Internet can be protected. Can we draw a line?

Moore said that transparency can have a chilling effect on poor behaviour, and that the public interest is also about what isn’t in it, as well as what is. Jowell went further, saying that the consequence of press campaigns can also intensely damaging, pointing to the Daily Mail’s campaign against the triple vaccine which has been found to be untrue. Jowell believed that the Internet would have been a strong force for good in that. Mosley said that just because something is popular doesn’t make it right. For him, the net is just another medium – removing the power of its mystery is key. On the matter of public interest, Phillips believed that there should be positive criteria for public interest, including public information and encouraging debate. There should be a stronger and clearer definition of privacy, and the public need to be educated about the dangers of the net.

Analysis

What was clear from this was that there was no real debate around the matter as such: all the panel agreed that change, and drastic change at that, was needed. All also agreed that the freedom of the Press is important, and that the revelations we have all become familiar with are the work of only a very small number of individuals. It was however very interesting to note that the PCC was very rarely mentioned, and it seems that the panel reflected the public mood that the PCC is now a defunct organisation.

However, there was very little to be said about what could be done to effect this change. Mosley’s idea of a free tribunal is an intriguing one, fairly similar to a plan devised by Chris Bryant MP, and incredibly similar to the organisation Early Resolution which started up last year. However, this doesn’t seem to help with the problems of self-regulation that we have seen arise from the Leveson Inquiry. It was merely agreed that it was a difficult task, as it requires both a controlled and a free Press to exist. These ideas seem mutually exclusive, and the panel acknowledged this. Perhaps the silence on this from the panel was out of respect for the ideas that will come from the Leveson Inquiry, or perhaps it was more out of recognition for what a difficult question it is to answer.

About the author: Adam is a barrister, and was called to the Bar by the Inner Temple in July 2011. He wishes to practise in media and public law, and blogs on these subjects at www.adamfellows.com. He is also the treasurer of Independent Academic Research Studies, a youth-led think tank with the aim to empower young people and encourage them to engage in the political process and justice, and has since embarked on an LLM (distance learning) in Information Rights Law and Practice with an elective in media law and privacy.

“[Nick] Davies’s work…has gained no traction at all in the rest of Fleet Street, which operates under a system of omerta so strict that it would secure a nod of approbation from the heads of the big New York crime families” Peter Oborne, The Observer, April 2010

“There seemed to be some omerta principle at work that meant that not a single other national newspaper thought this could possibly be worth an inch of newsprint” Alan Rusbridger, editor of The Guardian, Newsweek, 2011

Tom Watson MP grabbed headlines last November when he accused James Murdoch of being a “mafia boss” and operating a code of silence, but he wasn’t the first to use the “media omerta” analogy in the phone hacking scandal.

The media’s treatment of developments had been markedly selective. Curiously, it was not just the News International titles that avoided certain avenues of inquiry, following The Guardian’s 2009 revelation of widespread voicemail interception.

In a chapter of a new book about phone hacking we examine Oborne and Rusbridger’s assertions that the press significantly under-reported the phone hacking scandal – a news story which would eventually lead to the demise of the News of the World, several high profile resignations and the ongoing Leveson Inquiry.

Despite significant revelations in July 2009 about the possible extent of phone hacking at the News of the World, coverage of the issue in the press was minimal. Exempting The Guardian and The Observer, a trawl of the articles published in the UK’s major national press titles between 10 June 2006 and 10 November 2011 reveals a failure to report the phone hacking scandal in a sustained and systematic manner.

As shown in our graphs here, there are distinctive patterns in levels of coverage and angles chosen by different national newspaper titles. Coverage only picked up after an investigation by the New York Times at the end of 2010 and the revelations of July 2011.

The story warranted very little newsprint before the major developments in 2011. Whereas The Guardian had written 237 articles by the end of 2010, The Independent had 83, the Daily Telegraph 46, and The Times 43. Perhaps unsurprisingly, the tabloids gave the story barely minimal coverage. By the close of 2010, the Daily Mail and the Mail on Sunday had written 38 articles, The Sun 17, and the Daily Mirror and the Sunday Mirror a mere 11 [more on methodology here].

At various times between 2006 and 2011, aspects of the phone hacking story were simply not reported by British journalists. In the words of Guardian editor Alan Rusbridger, they were apparently ‘blinded’ to ‘the significance of the issue’.

In our chapter we look deeper into the ways media covered the story. We argue that explanations for the non-reporting of the phone hacking scandal need to delve beyond simplistic, if valid, assertions of industry cover-up.

To understand why the majority of national newspapers didn’t regard phone hacking as newsworthy, it is necessary to unpick a tangled web of contributing factors.

We explore competing professional, political and commercial interests; the failure of other organisations – particularly the Metropolitan Police – to investigate the matter thoroughly; and the intimidating power of News International.

On this occasion, a large part of the media failed to deem its own industry’s scandal ‘newsworthy’ enough to warrant proper attention, which has ramifications far beyond the phone hacking scandal.

The inclination for journalists not to regard a scandal within their own industry as ‘newsworthy’ is hardly surprising, but other stories might also be suppressed for a similar combination of professional, political and commercial interests – a fact that ought to be considered by Lord Justice Leveson’s inquiry and other bodies considering the question of press regulation.

The vigour of journalism and healthy democratic debate is not merely dependent on the effective regulation of what is reported, it is also dependent on ensuring that harmful illegal activity is regarded as sufficiently ‘newsworthy’ to be investigated and reported.

A new system of regulation should not only end the abuse of self-regulation by the News of the World, it should also consider whether newspapers ought to be independently held to account for their editorial decisions regarding ‘newsworthiness’.

Our full chapter is available on the Social Science Research Network here. It is an extract from The Phone Hacking Scandal: Journalism on Trial, edited by Richard Lance Keeble and John Mair (Arima 2012). The book was launched at an event in London on Tuesday 7 February.

Abstract: This paper explores aspects of the early history of relations between London-based journalists and London’s police from the origins of the Metropolitan police in 1829 with the aim of providing a historical context within which the present crisis can be placed.  It analyses the reasons for the development of a uniquely close relationship on the basis of a set of permanent, mutual needs, despite recurrent  attempts to regulate and control police-press communications.

Apart from the issues of ‘corruption’ raised by the monetary relationship between police and press, the changing nature of the needs of the popular press for a regular supply of crime-related stories and ready access to victims and perpetrators, are balanced against the requirements of the police for positive publicity in its political struggle for resources, the development of police careers, and crime prevention and law enforcement.

“No one pays like the News of the World do.” (Attributed to the private eye Jonathan Rees, Davies 2011)

‘20 per cent of the Met [force] has taken backhanders from tabloid hacks.’ (Paul McMullan talking to Hugh Grant, New Statesman 2011)

‘Police investigating allegations of illegal payments to officers by journalists arrested a 48-year-old man today. The man, believed to be a journalist, was arrested at about 10.30am at an address outside London in connection with allegations of corruption and was taken to a south west London police station.’ (Press Gazette, 4 November 2011)

One fall-out from the recent revelation of what appears to be an extraordinary cash nexus between the News of the World and the Metropolitan Police and the possible involvement of other popular newspapers is that we may need to revise the essentially comforting proposition in the academic literature on crime and the media that payments to police for information by the press have been comparatively rare.

To take one major example: Steve Chibnall’s classic book Law and Order News, published in 1977, has been highly influential for a generation in setting a frame within which British police – press relations could be viewed. (Chiball 1977b, and see Chibnall 1975a and b, 1977a, 1980, 1980,1981).  Crudely summarized, this frame was that instances of the payment of police sources have been comparatively minor and that payment is only part, and a small part, of the rich spectrum of police / press relations – and mainly used, Chibnall observes, by less experienced reporters, ‘on the fringe of a specialization’ without the right contacts:

‘I was told of one such journalist who was obliged to take a bottle of whisky with him every time he visited a policeman: A second complained  ‘I’m in a moral dilemma – I will not pay policemen for information (athough I’m prepared to buy them a beer or a meal) and I do not have the regular contacts which most crime reporters have. So what do you do when you want information? Well, the best sources are either bent policemen who want money for stories, of disgruntled policemen who don’t usually want payment…’ (Chibnall 1977b, 149-50)

In a brilliantly suggestive scenario, Chibnall describes a pattern in which friendship and trust links between journalists and police officers are ‘characterized by exchange’ (152). Journalists and police are in a trading relationship in which intangible invisible goods such as friendship, sociability, information, gossip and the reinforcement of mutual esteem counts for more than cash:

‘The most obvious exchange resource the journalist has at his disposal is money. But, although direct payment of certain types of sources is recognized as legitimate, it is generally considered as inappropriate (although not unknown) method of getting information from the police. It is far too crass and unsubtle and defines the reporter / source relationship as one of business rather than friendship.

The offer of food and drink, on the other hand, carries connotations of sociability rather than commerce or corruption … other, more powerful exchange resources… derive from [the reporter’s] position within an organization offering the possibility of instant communication with the public…crime reporter is able to act as intermediary between the press and the police …can facilitate the launching of formal public appeals about crimes but he can also help the police to communicate with specific individuals or minority groups…favourable comment on police activities…’ (153-4)

Over time, Chibnall argues, this leads to a process of ‘assimilation’ – and police officer and journalist bond and begin to reflect each other.

Overall this is a comforting picture of human sociability. It confirms a human side of the police and of the journalist, where mutual manipulation is softened by friendship. But this essentially sentimental picture is called into question by the News of the World revelations, as another one of journalism’s sustaining myths.

Two conclusions might be drawn: 1. That the comforting myth was in part true, and there has simply been a major change in the relationship between the media and the police in the last 30 years. Specifically we might point to the rise of the modern private investigations industry, worth £250 million a year (Milmo et al 2011) and acting as an intermediary by means of which this relationship, like many others under capitalism, can be outsourced.

We might add some observations about extraordinarily rich or desperate newspapers in ferocious competition. This is broadly the conclusion of Nick Davies, who argues that ‘there has always been a little dirty places, a little illegal stuff going on in the shadows of Fleet Street’ (Davies 2008, 266) but confesses ‘its never easy to look back…and see how the germ first started’. He locates the origins ‘in the old days’ some time before the 1970s, when ‘crime reporters regularly bunged cash bribes to serving police officers in order to procure information’.

Davies argues that the new regime at Scotland Yard inaugurated by Sir Robert Mark  ‘crushed the old corruption in the mid 1970s’ but that by the early 1980s newspapers had established a new way to bribe police officers through the mechanism of private investigators (Davies op cit,267). Davies’s succinct account is echoed in the rambling, surreal testimony of the former News of the World journalist Paul McMullan before the Leveson Inquiry. When asked if police officers were prepared to accept money in return for information, he said:

‘Yeah, not as much as they did in the 1980s, but now I think it would be very difficult to offer a policeman pretty much anything for anything.  But certainly, as – well, the 70s was a notoriously corrupt time, but then it got stamped on and got progressively harder to get information from the police unless it was in an official way’. (Leveson Inquiry 2011)

But one might draw a contrary conclusion: 2. that something has been missed, and /or not much talked about, in descriptions of the history of crime journalism, and that ‘assimilation’ was often on the basis of a mutually profitable relationship between police and journalists.

Of the industrial scale of the operation by the late 90s there is no doubt – Davies relates that, in March 2003

‘the Information Commissioner’s Office raided the home in New Milton, Hants, of a private investigator named Steve Whittamore and seized a mass of paperwork which turned out to be a detailed record of more than 13,000 requests from newspapers and magazines for Whittamore to obtain confidential information, many of them potentially in breach of the law. Several staff from the Guardian’s sister paper, the Observer, were among Whittamore’s customers.’ (Davies 2011)

Estimates vary widely as to the number of metropolitan police officers and detectives the News of the Screws may have had on its books by the time its 168 year career was brought to a tragic halt in July 2011. The revelation of industrial scale bribery confirms the suspicion that journalists paying the police for information is now deeply rooted in the culture of the British popular press. But was it ever thus?

Few things are more tedious than the historian’s reflex of ‘Nothing new…’ But it can be argued that this goes back to the birth of the popular press and that we simply have no reliable evidence to assess its scale. What can be inferred is that crime news was one of the basic staples in the rise of the press in the early nineteenth century, along with gambling, sexual scandal and sport. Along with sport and scandal, crime was commodified.

The Newgate Calendars of the late 18th century, full of bloody murders and last dying speeches on the scaffold, blazed the way, and were the most popular and profitable publications of their day. Newspapers created a rough and ready form of ‘soft’ social regulation to which the early police played a ‘hard’ role.  Dickens refers disparagingly to the ‘Old Bow-street Police’ and their propensity to hang around with Grub Street denizens:

‘we think there was a vast amount of humbug about these worthies. Apart from many of them being men of indifferent character, and far too much in the habit of consorting with thieves and the like, they never lost a public occasion of jobbing and trading in mystery and making the most of themselves. Continually puffed besides by incompetent magistrates anxious to conceal their own deficiencies, and hand-in-glove with the penny-a-liners of that time, they became a sort of superstition. (Dickens 1850 in Slater 1997, 266 my emphasis)

The Bow Street office was finally disbanded in 1838 (Metropolitan Police 2011). Dickens himself played a significant role in the rise of the modern British police, and his enthusiastic promotion of the Metropolitan Police, in 1829, and the creation of the Detective department in 1842 (ibid), directly parallels the creation of the modern popular press. (See Collins, 1965; Shpayer-Makov, 2010)

The prime exponent of this popular press was to become The News of the World, from its start in 1843, but it joined a host of weekly popular newspapers, such as Robert Bell’s Penny Dispatch (1841) and Edward Lloyd’s Penny Sunday Times and People’s Police Gazette (1840), in shocking crime news, and a diet specializing in ‘seductions, rapes, murders and any other sort of horror’ (Morison 1932, 242).  Until the advent of Alfred Harmsworth and the rise of the popular daily newspaper of the 1890s, this was the largest and economically most buoyant part of the British press, organized on a prototype of the factory lines that 50 years later would become commonplace.

Given its size and profitability, it is at least plausible that paying, as well as wining and dining police officers and detectives for tips, was fundamental to this culture of Victorian popular journalism, but these papers  - particularly Robert Bell’s – were also frequently prepared to attack the newly established police as well as the church ‘and anything else established.’ (Morison 242)

This was not just a working class market. The middle-class magazine Household Words, which Dickens started in March 1850, fished in the same waters with somewhat different motives and featured a substantial number of articles on the police, many concentrated in the first issues and focusing on the work of detectives.  Although the evidence is slight, it is highly likely that Dickens made payments to favourite police officers, as well as publicly hosting parties for detectives in his offices (Dickens 1850). He wrote stories for his magazines based on the use of his police contacts, edited and rewrote police articles by his contributors, and accompanied police raids into the East End. In an age that was very suspicious of the organised state, he functioned as a one-man propagandist for the new police force.

This campaign involved a high degree of selective perception and contemporaries criticized what appeared to be a hero-worshipping tendency – most unlike Dickens – that seemed to take him over when he got near a detective or an imperturbable man in blue. Other critics, such as Humphrey House in his classic book The Dickens World (1942), puts it down to his authoritarian tendencies and his obsession with neatness and precision, and – House was writing in the Freudian-ravaged 1930s – his anality.   Untidy criminality needed to be sorted out and his articles about night tours with the police and the detective parties in his office, House says, ‘show a kind of clerical satisfaction in the functioning of a well-run organization.’ (House, 202)

The account has considerable explanatory power, although it ignores a fundamental source of the detective – author love-in – for Dickens and for other journalists.  This is the fundamental congruence of their respective crafts, well summarized by Haia Shpayer-Makov:

‘To a great extent, the activity of Victorian and Edwardian detectives was similar and, increasingly they were expected to do similar things. The essence of their work relied on investigation – on the act of probing and exposing…both developed the skills of taking evidence, interviewing witnesses and, on the basis of scattered pieces of information, constructing a narrative, often explaining a burning or puzzling issue. Their professional status depended on their ability to perform these tasks repeatedly and successfully.’ (Shpayer-Makov 2009)

Payment of course was, by its nature, covert. One of the most celebrated policemen of the Victorian age, Inspector Charles Frederick Field (1805-1874), chief of the detective branch from 1846, owed his prominence to Dickens. After Field retired in December 1852 and opened a private inquiry bureau, Dickens is reported to have subscribed £300 to a testimonial (a sizeable sum equivalent to about £8000 today), although there is some dispute about this [i].

Other evidence of payments is a bit scarce. As an editor Dickens was tight with money in his payment of contributors to Household Words.  (Buckler 1951, 1180) However, in a letter to his chief sub editor W. H. Wills in April 1851 setting out his plan for another police article that became ‘The Metropolitan Protectives’ (Household Words 1851) he wrote:

‘any of the Scotland Yard people will do it, I should think; if our friend by any accident should not be there, I will go into it. If they should recommend any other station house as better for the purpose, or would think it better for us to go to more than one under the guidance of some trustworthy man, of course we will pay any man and do as they recommend. But I think one topping station-house would be best.’ (Stone, 253-4 my emphasis)

Over this period, the Metropolitan Police acquired an unsavory reputation for corruption and incompetence, and there were some big scandals in the 1870s after Dickens’s death. From its origins the question of ‘perks’ was a live issue, although 4 out of 5 of the men dismissed were sacked for drink related offences (Emsley 1991, 221) Recurrent efforts were made to control the use of perks at various points in the 19^th century. Indeed, ferocious attacks by the press on police venality and incompetence were a feature of the late Victorian scene – particularly marked during the outbreak of murders in the East End in the 1880s attributed to ‘Jack the Ripper’ (Cobb 1956, Chapter 16).

Conan Doyle’s limited Inspector Lestrade,  ‘one little sallow rat-faced, dark-eyed fellow’, sprang from the fertile ground of a stack of press cuttings. (Doyle 1887).  Payments to policemen only in fact became comprehensively illegal with the passing of the Prevention of Corruption Act in 1901, and it was made an offence for a police officer to receive payment and for someone to make one, in the context of recent increases in police pay and allowances. (Robertson 2011) According to Chibnall, a major reason for the reluctant establishment of the Scotland Yard press office in 1919 was ‘fears about unauthorized leaks produced by reporters bribing officers’ (Chibnall 1979).

By that time a cosy and, to some extent, self-regulating culture had arisen between a corps of Fleet Street crime correspondents and the police in which each side needed each other – the police used the press for publicity, to get a result, to fight for better resources and advance their careers.  Journalists relied on police tip-offs to get the latest information, access to victims and lurid details to dress up stories.  Copious amounts of alcohol in a number of well-established London watering holes oiled the relationship. But references to money payments in journalist’s memoirs are sparse. Hints remain. Consider the guarded references of  Frederick Higginbottom – a noted Pall Mall Gazette journalist – in his memoirs:

‘Go back to notorious murder mysteries of the eighties of last century … Every one was written up by expert reporters in touch with the police, and each of them provided sensations for months. The police used the Press then, as they do now, and they gave away information freely if it helped them to trace a missing suspect.’ (Higginbottom 1934, 15 my emphasis)

Now a host of accounts have begun appearing in the press testifying to the ubiquity of this culture. For example, Duncan Campbell observes:

‘It has always been known, by both police and the press, that some officers will trade information for money. Victims of crime or tragedy are often amazed at the speed with which the media arrive in the wake of the emergency services. Now they know why.’ (Campbell 2009, my emphasis)

A ‘veteran journalist’ in the Camden New Journal claims:

I CANNOT see why such unforgiving looks were given to Rebecca Brooks, chief executive of News International, for telling a Commons committee that journalists paid police officers for stories – or words to that effect.

Journalists of another generation would know that it was common practice to pay policemen for stories.

When I worked on a west London weekly, too far back in time to date in this column, I would drop in to the local cop shop and if a story given by an officer was sold on to a national or London evening, the proceeds would be shared.

Today, this would be considered a corrupt practice, I suppose, but it shades into insignificance compared with what is fundamentally wrong with many journalists.’ (Camden New Journal 2011, my emphasis)

As the Telegraph observes:

‘Payments by journalists to police officers have a long history. One long-retired crime correspondent recalls having a list of officers to whom he would regularly send a £5 note “wrapped in a plain WH Smith envelope”.

“I’d never use office stationery and I’d use a different typewriter each week so it couldn’t be traced,” he said.

“I never felt I was bribing them but of course I was. But then these weren’t just tips they were giving me,” he said with professional relish. “These were stories that could go straight into the paper. What I liked best was when they told me the story before they’d even told Scotland Yard.”’ (Born 2003)

However, Chester Stern, a former crime correspondent at the Daily Mail and Mail on Sunday with 20 years experience, told the Telegraph in the same story that the paying of police officers is much less pervasive than many think:

‘”Yes it goes on but it is very much the exception rather than the rule,” he said. Stern said that during 20 years on the crime beat he was happy to wine and dine police contacts but drew the line at giving them cash. “Ninety per cent of the information you need can be got through legitimate means.”’ (Born 2003)

The researcher of Victorian journalistic morals finds real difficulties in uncovering a covert culture whose basis was cash – the beauty of cash being of course its untraceability. Modern prosecutors with many more tools at their command, still face great difficulties, as was shown in the trial of Neville Thurlbeck in 2000.

Mr Thurlbeck was cleared of allegations that he paid a Detective Constable Farmer to supply information on people whose details were kept on confidential police computer records. The prosecution alleged that Farmer made scores of police computer checks on people’s criminal records for him and cited 36 stories in the News of the World allegedly containing information supplied by him, including:

‘a Labour MP with a conviction for committing an obscene act; an alleged threat to the Queen from stalkers; a story about a man said to be involved with the mass murderer Rosemary West; and a priest with convictions for sex offences. He said the recorded outgoings of Det. Con. Farmer and his wife dropped between the start of 1997 and mid-1998, suggesting he had an alternative source of cash.’ (Farmer 2000)

Conclusion

But does this expensive pursuit of information brokers and allegedly corrupt police officers serve the wider public interest? Most of it is likely to be very hard to prove and former Metropolitan police chief Brian Paddick argues that there is ‘absolutely no point’ in attempting to investigate whether journalists were paying police officers: ‘if these claims are true’ he says, ‘then it is most likely officers were paid in cash and there is no way of proving it’ (Channel 4 News 2011). Although one might observe that this seems to discount a careful auditing of gold bath taps against the ostensible income of the officer.

A final point to ponder: could efforts to stamp out payments between hacks and cops lead to the death of popular journalism? Optimistic estimates are that as many as 140 Mirror Group journalists may face criminal charges. As Guido Fawkes dramatically claims:

‘The idea that this crisis is only about News International is fanciful…In short every major newsroom in the land has used illegal techniques to obtain information. We are on the verge of criminalising hundreds of journalists.’ (Fawkes 2011)

So here’s an interesting ethical conundrum. Freedom of the press may require us to argue for a tolerable level of corruption to enable crime to be reported, especially the crimes of the powerful, in the wider public interest. It doesn’t lend itself to transparency, or ethical puritanism, and it doesn’t exactly meet any Kantian test – mild corruption of the police by journalists might indeed lead to highway extortion for imaginary driving offences, as happens in Russia and the ex-Soviet republics. But it may be a price worth paying.

References and bibliography

Born, Matthew (2003) Paying the police: newspapers have a lot of form, Daily Telegraph 14 March http://www.telegraph.co.uk/news/uknews/1424573/Paying-the-police-newspapers-have-a-lot-of-form.html accessed 17 October 2011

Buckler, William E. (1951) Dickens the Paymaster, PMLA, Vol 66, No 6  December, pp 1177-1180

Camden New Journal (2011) ‘Paying police for news stories isn’t the malaise of modern journalism’, 26 May 2011 http://www.camdennewjournal.com/paying-police-news-stories-isn’t-malaise-modern-journalism  acccessed 17 October 2011

Campbell, Duncan (2009) ‘The man in the mac: a life in crime

Reporting’, Guardian  5 September, http://www.guardian.co.uk/uk/2009/sep/05/crime-reporting-duncan-campbell accessed 17 October 2011

Campbell, Duncan (2011) ‘Now the painful task of cleaning up the Metropolitan police begins’, Guardian 8 July

http://www.guardian.co.uk/commentisfree/2011/jul/08/metropolitan-police-paul-stephenson  accessed 17 October 2011

Channel 4 News (2011) ‘Police “cash for info” probe “pointless” – Brian Paddick’ 15 April, http://www.channel4.com/news/reporters-paying-police-probe-pointless-says-paddick accessed 19 October 2011

Chibnall, Steve (1975a) ’The crime reporter’, Sociology 1975 9(i) 49 66

(1975b) ‘The Police and the Press’ in Brown J. and Howes G. (eds) The Police and the Community, Saxon House, 1975.

(1977a) ‘Worlds Apart: Notes on the Social reality of corruption’, British Journal of Sociology, 1977 (with Peter Saunders).

(1977b) Law and Order News: Crime reporting in the British press, London: Tavistock.

(1979)’The wooing of the fourth estate: The Metropolitan Police and the news media 1970 – 1976′, in Holdaway S. (ed.) British Police, London:Edward Arnold.

(1980) ‘Chronicles of the gallows: A social history of crime reporting’, in Christian H. (ed.) The Sociology of the News Media, Sociological Review Monograph, 29, 1980, pp 179 217.

(1981)’The Crime Reporter’  in Cohen, S. and Young J. (eds) The manufacture of news: Mass Media and social problems, 2nd ed., London: Constable.

Cobb, Belton (1956) Critical Years at the Yard, London: Faber and Faber

Collins, Philip (1965 2^nd edition) Dickens and Crime, London: Macmillan

Davies, Nick (2008) Flat Earth News, London: Chatto and Windus.

Davies, Nick (2011) ‘Jonathan Rees: private investigator who ran empire of tabloid corruption’, Guardian 11 March http://www.guardian.co.uk/media/2011/mar/11/jonathan-rees-private-investigator-tabloid accessed 17 October 2011.

Dickens, Charles (1851) ‘On Duty with Inspector Field’, Household Words, 14 June.

Dickens, Charles (1850) ‘A Detective Police Party’ Household Words, 27 July and 10 August.

Doyle, Sir Arthur Conan (1887) A Study in Scarlet, Chapter 2 The Science of Deduction -  see http://www.gutenberg.org/files/244/244-h/244-h.htm

Emsley, Clive (1991) The English Police: A Political and Social History, New York: St Martins; London:  Harvester Wheatsheaf.

Farmer, Brian (2000) ‘Tabloid journalist cleared of paying police officer for stories’ Independent, 21 July http://www.independent.co.uk/news/media/tabloid-journalist-cleared-of-paying-police-officer-for-stories-707398.html accessed 20 October 2011.

Fawkes, Guido (2011) ‘We are on the verge of killing popular journalism’, 16 July Guido Fawkes’ blog, http://order-order.com/2011/07/16/we-are-on-the-verge-of-killing-popular-journalism/ accessed 3 December 2011

Grant, Hugh (2011) ‘The bugger, bugged’, New Statesman, 12 April

http://www.newstatesman.com/newspapers/2011/04/phone-yeah-cameron-murdoch accessed 20 November 2011.

Higginbottom, Frederick J. (1934) The Vivid Life: A Journalist’s Career, London: Simpkin Marshall.

House, Humphry (1942 2^nd edition, 1965 OUP paperback) The Dickens World, London: Oxford University Press.

Mawby, Rob C. (2010) ‘Chibnall Revisited. Crime Reporters, the Police and “Law and Order news”’, British Journal of Criminology, 50, 1060-1076.

Cahal Milmo, Jonathan Brown and Matt Blake (2011) ‘Beyond the law, private eyes who do the dirty work for journalists’, Independent,13 July at http://www.independent.co.uk/news/media/press/beyond-the-law-private-eyes-who-do-the-dirty-work-for-journalists-2312702.html accessed 27 October 2011.

Morison, Stanley (1932) The English Newspaper, Cambridge: Cambridge University Press.

Robertson, Geoffrey (2011) ‘News of the World: A newspaper is gone, but an inquiry is as urgent as ever’ Guardian, 8 July  http://www.guardian.co.uk/profile/geoffreyrobertson accessed 25 October 2011.

Shpayer-Makov, Haia (2009) ‘Journalists and Police Detectives in Victorian and Edwardian England: An Uneasy Reciprocal Relationship.’ Journal of Social History 42.4 (2009): 963-987. Project MUSE. Web. 1 Jul. 2011. http://muse.jhu.edu/

Shpayer-Makov, Haia (2010) “From menace to celebrity: the English police detective and the press, c.1842–1914” Journal of Historical Research Volume 83, Issue 222, pages 672–692, November. Article first published online: 21 DEC 2009.

DOI: 10.1111/j.1468-2281.2009.00526.x

Haia Shpayer-Makov (2002), The Making of a Policeman: a Social History of a Labour Force in Metropolitan London,1829-1914, Aldershot, England, and Burlington Vt., USA: Ashgate Publishing.

Stern, Chester (2010) ‘The News of the World’s special relationship with the police’, Guardian, 6 September 2010, http://www.guardian.co.uk/commentisfree/2010/sep/06/news-of-the-world-special-police-relationship  accessed 25 October 2011.

Stone, Harry (1969) The Uncollected Writing of Charles Dickens, Household Words 1850-1859, Vol. 1, London: Allen Lane.

Websites

Leveson inquiry

Witness statement of Nick Davies, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Nick-Davies.pdf  accessed 1 December 2011

Transcript of testimony of Paul McMullan, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of-Afternoon-Hearing-29-November-2011.txt  accessed 1 December 2011

Metropolitan Police 2011: History of the Metropolitan Police – Timeline http://www.met.police.uk/history/timeline_index.htm accessed 27 October 2011.

How will your partnership with the Guardian work?

We are having ongoing discussion with Guardian Law, the plan is for Guardian journalists, including those not used to covering courts, to go out and report on cases. The Guardian has also agreed to publish some of the best output coming from our writers and pushing the social media aspect south of the border.

Is it a country-wide initiative, or just Scotland based?

Our intention is to make it as wide as possible, at the moment we have started with Scotland as it is where we are based and have contacts, but in the next couple of weeks we plan to roll out the initiative and engage those in England, Wales and Northern Ireland too.

How do you see the project developing after ‘open justice week’?

At the moment we are focusing on making the week itself as successful as possible, we are open to suggestions as to how to take the project forward at the end of the week.

Their ‘Open Justice UK‘ project, which will go live on Monday 27 February, aims “to get writers, legal professionals and members of the public to collaborate using social media to share their experiences of a week in the life of the legal system”.

Our goal is to publish accounts from all levels of justice, from the lowest courts to the highest, inviting lawyers, journalists, members of the public and offenders to write, blog and tweet about what really goes on in our courts.

Guardian Law supported the project in an editorial yesterday,

The project is not without difficulties. Participants need training in how to avoid contempt of court, which some lawyers have offered to provide. Some Scottish courts lack a phone signal, let alone decent Wi-Fi. Judges may have reservations. Professional court reporters know that their job demands skill and care. But peering into the workings of the justice system is a necessary task, and we wish the project every success.

Open Justice UK is on Twitter @oj_UK and has a Facebook group here. It strikes me as a really useful exercise and I look forward to participating/following.

As the Guardian says, there will be difficulties ahead for the digital court reporter. While excited about the future for ‘digital open justice’, I’m also keenly aware of the ethical and legal dilemmas it brings.

For example, is it always appropriate to allow live-tweeting in court? If so, should more guidance and resources be made available to both journalists and the general public? I shared the discomfort of some tweeters about live tweets from the Gary Speed inquest and reflected on whether they met the PCC’s criteria for reporting inquests. The tweets I saw did not seem to divulge any more detail than the subsequent press reports but nonetheless, I felt myself agreeing with the Mirror’s Jim Shelley who said: “Who amongst us really needs ‘live updates’ from #garyspeedinquest?”

From a legal perspective, contempt of court poses the biggest challenge: last week tweeting was banned in the Harry Redknapp trial at Southwark Crown Court, after a journalist tweeted the name of a juror and about evidence given by a witness under oath in the absence of the jury – the matter has now been referred to the Attorney General, according to Legal Week.

‘Open Justice Week’ could provide a good platform to discuss these and other issues, as well as an opportunity to come up with new ideas and strategies for the development of digital open justice.

Our coincidentally but aptly timed Justice Wide Open event at City University is now fully booked, but you can join the waiting list here.

It will feature a specific session on court reporting (with Heather Brooke, journalist and activist; Mr Mike Dodd, editor of PA Media Lawyer; Adam Wagner, barrister, One Crown Office Row and editor of the UK Human Rights Blog, William Perrin, founder, Talk About Local and member of the Crime and Justice Sector Panel on Transparency).  We’ll be tweeting and blogging the event, as well as publishing the papers later in the spring.

As a postscript, the Cabinet Office has released submissions to its Open Data Consultation here. I haven’t had a chance to go through them yet, but they include responses from the Ministry of Justice, the Information Commissioner’s Office, the Campaign for Freedom of Information, Creative Commons and the Open Rights Group – (and a submission by Lucy Series and me on legal data).

“Don’t start me on the subject of misrepresented titles or names.  I suffer that to this day, but there it is.”

That was Lord Justice Leveson on 20 December 2011, as noted in this year’s Inforrm media law quiz, won by Benjamin Pell.

It’s rather a bugbear to Lord Justice Leveson, who said in his opening remarks to the Inquiry:

“Although flattered that various politicians and members of the press have elevated me to the rank of peerage, I am not Lord Leveson: my judicial rank is that of a Lord Justice of Appeal.”

Legal titles can be a complete headache to get right (and it doesn’t help when members of the judiciary are actually called ‘Judge’) but for the record and legal pedantry’s sake, it’s not Lord Leveson even if Google thinks it is.

Many publications have been getting it wrong, including the Guardian, which noted back in November 2011:

“Not for the first time, the judge who is leading an inquiry into phone hacking was referred to as Lord Leveson. As noted in this column on 29 and 30 September, Brian Leveson sits on the court of appeal and has the title lord justice, but is not a peer …”

But can Leveson really expect the papers to get it right when his own Inquiry site has mis-captioned him! (Hover over his pic here & you’ll see!)

[My weekly round up for Inforrm can be found at this link. I do hope all the legal names are all proper and correct!]

Geoffrey Robertson QC will open the event with a talk on ‘Alphabet Soup and the judicial retreat from open justice’. Three sessions will cover the history and context of the flow of legal knowledge; legal reporting and the media; and an academic perspective on open justice.

Speakers include: Hugh Tomlinson QC, Matrix Chambers; Dr David Goldberg, information rights academic and activist; Emily Allbon, law librarian, City Law School; Heather Brooke, journalist and activist; Mike Dodd, editor of PA Media Lawyer; Adam Wagner, barrister, One Crown Office Row and editor of the UK Human Rights Blog; William Perrin, founder, Talk About Local and member of the Crime and Justice Sector Panel on Transparency; Professor Ian Cram, Professor of Comparative Constitutional Law, University of Leeds; Dr Lawrence McNamara, Reader in Law and ESRC/AHRC Research Fellow, University of Reading.

Other participants will include practitioners and academics from journalism and law and there will be plenty of time for discussion during the sessions. The final session will allow us to consider the way forward for digital open justice, with view to setting out some general recommendations to the Ministry of Justice and other relevant bodies or committees.

Lawyers will be able to claim three [SRA] CPD points (I’ll have to find some star stickers or merits for the journalists and academics). And the CLJJ will be providing plenty of tea, coffee and lunch. Places are limited so you will need to register here.

For those in another country, or unable to attend, reports from the event will be available on the CLJJ blog. A set of papers will be published following the event, which will be distributed to academics, lawyers, journalists and members of government and the judiciary.

Hope to see you on the 29th February!

Pic: Ben Zvan on Flickr.