Dr Damian Carney proposes the setting up of a new regulatory body for the press providing strong remedies for complainants, better internal controls on ethics and complaints – and enough independence from government and industry to appease the general public

In the first edition of The Phone Hacking Scandal, I put forward a number of arguments as to why I believe a form of statutory regulation of the printed media is the only way forward to deal with the issues which have been raised by the Leveson Inquiry, and identified some features which I felt the new statutory based regulator should have.

In this new chapter [to be published October 2012], I want to study some of the proposals which have been made at the inquiry as to the form that new regulation or self-regulation might take, examining what aspects of these proposals Lord Justice Leveson is likely to endorse.

I write at a time when the Fourth Module of the Inquiry: Submissions on the Future of Press Regulation has already begun, and I do so knowing that by the time the book is published, the inquiry will have completed hearing the evidence and may have made recommendations.

Thus, in attempting to predict Lord Justice Leveson’s recommendations, it may seem that I am trying to be a Mystic Meg with all the chances of proving fallible. However, I believe this exercise is necessary as since the first edition several important developments have occurred which may have an important bearing upon what Leveson finally proposes.

In asking for submissions to the Fourth Module, Lord Justice Leveson identified five criteria by which a new regulatory regime would be assessed: effectiveness; fairness and objectivity of standards; independence and transparency of enforcement and compliance; powers and remedies of the regulator; and costs (Leveson 2012). Each of the models which follow will be assessed by these criteria.

The Decision to End the PCC

The cacophony of criticism levelled at the PCC in the aftermath of the phone hacking scandal, and the initial stages of the Leveson Inquiry, led to the acceptance by those associated with the PCC (its chairman Lord Hunt, and PressBof – the industry funding body) that it needed to be replaced.

Rumblings to this effect began to be heard in December 2011, but it was officially announced on 9 March 2012 that the PCC had agreed to undergo a transitional stage whereby its assets would be transferred to a new regulator (Press Complaints Commission 2012).

This was a sensible move as it would enable any new regulator to start afresh without any of baggage associated with the PCC. Two very similar self-regulatory models were proposed by Lord Hunt, and Lord Black of the PressBof.

Both proposals envisaged a body which would continue to deal with complaints about breaches of the regulator’s code, but would also have a standards arm (called Investigations and Compliance Panel by Lord Black) which would have the power to investigate:

• ‘significant or systemic breaches’ of codes or ethical standards;
• where serious breaches of criminal or civil law has occurred and though resolved by court, the regulator believes that an investigation would be beneficial because of the wider issues involved;
• where there is a significant and substantive issue arising from a single issue, or a long-term pattern of breaches of the code (Black: para 15; Hunt 2012: paras 88-89).

In Lord Black’s version, the standards arm would have the power to impose sanctions (up to £1,000,000 or 1 per cent of turnover) (Black 2012: para 55), whilst the complaints arm would have a ladder of sanctions (informal resolution, published apologies, formal reprimand and then adjudication) (ibid: para 98).

Whilst Lord Hunt’s model would focus upon the complaints arm largely acting as a form of brokered negotiation (Hunt 2012: para 104), the Black model emphasises the role of the new regulator as a mediator (Black 2012: para 35).

However, in both models recourse to the new regulator would only be available after the complainant had used the internal complaints procedure that each publishing group or publication would be required to set up as a result of the contract which they would sign with the regulator (ibid: para 97; Hunt 2012: para 10).

The publishers would also under this contract be required to give the new regulator an annual report which, inter alia, explained how complaints were dealt with and how ethics were encouraged in the publication (Hunt 2012: para 78; Black 2012: para 22).

Incentives to Join New Contractual Schemes

This contractual underpinning is seen as a mechanism of ensuring that the sanctions imposed can be strong and coercive, and so not necessitate any statutory underpinnings or interference. However, as they are voluntary, both these models are predicated on a series of incentives which would encourage not only established print publications from joining the new self-regulatory schemes, but would incentivise publications on new media platforms to sign up to the scheme.

A common feature to both schemes is some form of kitemarking, or badge, which indicates adherence to the regulator’s code which can be removed should a publication be guilty of systematic breaches (Hunt 2012: para 53; Black 2012: para 24). Lord Hunt suggests adopting the Irish position and enabling those who adhere to the code to have some defences or reduced damages if they have to defend defamation actions (Hunt: paras 47-49).

Lord Black’s proposal suggests that press cards would only be given to those who signed up to the regulatory system, and only members of the regulatory regime would be able to have access to Press Association copy (Black 2012: para 65). In addition, he suggested looking at ways in which advertisers could support the system, perhaps through refusing to work with publications outside of the system (ibid: para 69).

Black proposed that the contract between publisher and regulator would be ‘long-term’ but then suggested this meant initially for five years and then on a rolling contract (ibid: para 63). Publishers who sought to leave the regulatory regime would have to pay costs equivalent to the revenues the regulatory would have received from them in the remainder of the contract (ibid: para 12).

Do these Self-Regulatory Proposals Secure Independence of the New Regulator and Public Confidence in the System?

In both models all the component parts of the new regulator, bar the Code Committee (which Lord Hunt would have outside of the new regulator’s control) (Hunt 2012: para 59), would have a majority of laypersons which would emphasise the independence of the new regulator (ibid: para 58; Black 2012: para 10).

In Lord Black’s proposal for example, the co-ordinating body the Trust Board would have four lay persons (including the chair) and three press representatives; the Complaints Committee would have only five editors but eight laypersons. The Investigations Panel, which would be brought together on an ad hoc basis from a panel of experts, would have only one press representative (not a serving editor but with editorial experience) but two lay persons (ibid: para 18).

Laypersons’ appointments and that of the Investigations Panel, and any Independent Assessor appointed to hear appeals from the Complaints Committee, would be appointed by the Trust Board, not the industry (ibid: para 20). Lord Hunt’s model would have a small board which co-ordinates the other limbs of the regulator being formed with a majority of laypeople, and a minority of press representatives who would be non-serving editors (Hunt 2012: para 28).

The chair would be titled an Ombudsman and he would be the chief arbiter of standards (ibid: para 67). The complaints arm in Hunt’s model would have the same make-up as Lord Black’s, or could be smaller with seven laypersons and four press representatives, although Lord Hunt seems to favour membership which is influenced by the requirement to be representative of the country in much the same way as the Public Appointments Commissioner is required to take this into account (ibid: paras 31 and 69).

Both proposals also suggest that press representation should be more representative, and not dominated by the national press as the current PCC is. Whilst both proposals accept a need for the presence of laypersons on the Code Committee, they would be in the minority, which they justify on the basis that only editors would have the knowledge of what is happening in the field to know whether the code needs amending or not (ibid: para 58; Black 2012: para 80).

Despite both being called ‘drafts’ and with some detail needing to be added, they are clearly very well-worked out and there have been grumblings that they are attempts by the press (although Lord Hunt tries to distance himself by saying this is the PCC view) to give Lord Justice Leveson a fait accompli.

Critics draw comparison to the establishment of the PCC whilst the Calcutt Inquiry was ongoing as being evidence of the press’s willingness to do the ‘absolute minimum reform needed to stifle opposition’ (Frost 2012: para 14). In fairness to these proposals, they do suggest widespread changes to both the functions and make-up of the body, but one could argue, given the crisis in confidence in journalism that the phone hacking scandal has caused, minor reforms would simply have been ignored by Leveson and the government.

However, Lord Black has argued that his proposal is viewed as credible, and therefore likely to be effective, because it was formulated within the industry (Black 2012: para 8). But in being so parochial (with no public consultation) (ibid: para 9) and without any input from journalist organisations such as the National Union of Journalists, and some publications claiming to have not been consulted (South West Wales Media 2012) the origins of the proposals may prove to be the ultimate reason why neither is accepted.

Contractual Basis of New Self regulators

Whilst the contractual basis of the new proposed self regulators would seem to give the regulators greater powers than the existing PCC, and be flexible enough to deal with new media platforms, thus complying with the requirement in para 1.1.d of Leveson’s Draft Criteria for a Regulatory Solution that it is ‘sufficiently flexible to work for future markets and technology’, it is not without flaws. The initial contract is for five years, and thereafter it would be a rolling ‘five-year’ contract.

These contracts are not long enough. They give publishers relatively regular opportunities of withdrawal which may occur if the scheme does not meet with the individual publisher’s liking (e.g. they may be subject to adverse findings by either the Complaints or Standards arms) (Media Standards Trust 2012: 44). Once the scheme lacks all major publishers it begins to lose its credibility with the public, and if there are not adequate financial or other incentives to join the scheme, it is unlikely that newer online news outlets will join.

Many of the examples that Lord Hunt used to support his adherence to voluntary contractual arrangements were taken from the sporting world (e.g. the Premier League, Jockey Club and England and Wales Cricket Board) where if a team or individual is outside of the competition (either through sanction or withdrawal) they face a clear financial penalty as they cannot continue to compete (ibid: 44-46). In media regulation there are no such similar incentives, if the newspaper does not want to play by the rules of the self-regulator it can still continue in business.

Concluding Remarks on the Proposed Self-Regulatory Models

In terms of the Leveson’s criteria, the proposals fall down badly on the ‘fairness and objectivity of standards’ criteria which requires the setting of standards to be ‘sufficiently independent of media interests, in order to command public respect.’(Leveson 2012: para 2).

In both proposals the Code Committee is dominated by current editors, and in Lord Hunt’s proposals the Code Committee could even be located outside of the new regulator (i.e. be determined and manned by the Press). This is a basic flaw in the design, and questions need to be asked as to why, when other parts of the proposed regulators have a layman majority the code (which is to be enforced) does not.

The code is the crucial element of the regulator scheme. It is this which the complaints arm adjudicates on and the standards arm enforces, and in the draft criteria it is clear that some of the interests which much be considered may run counter to what publishers would want on a self-interested basis (i.e. the need to consider ‘the rule of law, personal privacy and other private rights’ (ibid: para 1.1.b).

The general public’s concern is more likely to be sated, if they are convinced that the code is being developed with the ‘public interest’ determined by a body much more diverse than that which currently exists, and in which editors are in the minority, otherwise the fear may be that press interests rather than public interests will influence the content of the code.

With the exception of the Code Committee the proposals do guarantee a high degree of independence both from media interests, and the state. There is a total absence of state input.  Appointments to the new regulator have being taken out of the hand of the industry and given to the Trust Board/board of the new regulator, and the influence of the industry funding body is greatly minimised. There do remain questions as to whether the funding of the new regulators would be adequate enough.

The Statutory Backdrop Model

There is often an over-simplistic presentation of a black and white choice between either statutory regulation or self-regulation, when in reality there are a range of different co-regulatory and statutory forms which can give varying degrees of choice those designing self-regulatory systems.

Most professions and key industries, with the exception of the printed media, fit into one of these co-regulatory arrangements. The term co-regulation means that whilst the profession, or industry, has a degree of control over their own affairs, there is a state body which oversees the self-regulation to ensure it meets certain statutory obligations. The case of the Legal Services Board illustrates this perfectly (see Legal Services Act 2007).

Several proposals have been put forward to the inquiry recommending the adoption of such a model. The Media Standards Authority (MSA), put forward by the Reuters Roundtable on Media Regulation, and drafted by Hugh Tomlinson QC, has many similarities to the self-regulatory approaches described in the previous section.

Although it would be a creature of statute whose main aims would be to promote and protect public interest journalism, and to protect privacy and reputational rights of individual providing them with ‘swift and cost effective resolution of disputes’ and providing the public with accurate information (Reuters 2012: para 5).

With a statutory guarantee of independence from both the press and the government, the scheme would be voluntary and be based on five-year rolling contracts (ibid: paras 5-8, 15) and internal complaints system within each publication (ibid: para 31) with each publication producing annual reports about compliance (ibid: para 43).

Publications would be encouraged to join by incentives, which would centre on providing a cheaper dispute resolution method than the courts. There would be initially compulsory mediation but if complainants were not satisfied with this, they could seek a remedy from a Dispute Resolution Tribunal (ibid: paras 23-25).

By point of contrast, under the Media Standards Trust’s proposal the print industry would be left to create its own self-regulator(s) (with the possibility of different bodies being set up for national and regional newspapers and magazines), with obligations to join imposed on those that did not meet to the definition of ‘small company’ in the Company Act 2006 (Media Standards Trust 2012: 73-75).

Small publishers and bloggers could voluntarily join a self-regulatory scheme (ibid: 75). Membership, by way of contract and the self-regulatory regime, would be left largely to the members to define but would have to satisfy a Backstop Independent Auditor (a statutory body funded by a levy on large news organisations) that certain criteria are met. These criteria would be to:

• provide the public with an independent forum for resolving complaints about member organisations;
• provide meaningful, proportionate and timely redress to the public, particularly with regard to inaccuracy, unfairness, and unjustified privacy intrusion;
• protect the freedom of journalists to report in the public interest (ibid: 79).

If the Auditor is not satisfied that these criteria have been met then the self-regulator can be struck off. This would force the media organisations to establish a new self-regulator, or join another existing one, but would not prevent the publishers from continuing to publish (ibid: p83), but would also ensure that, whilst the system of complaints was primarily self-regulated, it would be difficult for it to operate in a way which disregard the wider public interest as it would be constantly monitored.

The Backstop Independent Auditor would have the power to fine media companies which do not meet the small company criteria and have not joined a self-regulator (ibid: 81), and would ensure that the self-regulators are independent, but would not be a ‘court of appeal’ like the Legal Ombudsman (ibid: 89).

Need to Establish Internal Complaints and Compliance Systems

As well as membership of a self-regulatory scheme, the larger media companies would have to establish internal complaints and compliance systems (ibid: 72) which would create a paper trail, particularly in cases where privacy was invaded (ibid: 77).

Again the complaints function previously performed by the PCC is expected to continue in this proposal, with the Media Standards Trust also recommending that where there is evidence of malpractice the media organ should be required to pay the costs of investigations if more than three investigations are launched against it in a year on a ‘polluters pays principle’ (ibid: 79-80).

This proposal wants to minimise the amount of state interference/control of the printed media, and concentrates its efforts on a limited number of big players which it feels are most guilty or most likely to abuse the power that freedom of the press gives them. In the process the ‘light touch’ regulation which it is calling for seems too limited in the constraints it places upon the media in setting up the self-regulator.

True, the current Hunt and Black proposals may dispel such concerns but even the presence of the auditor as currently envisaged in this proposal would not stop future watering down of the current media orientated proposals. The lack of restrictions on the number of media representatives on the different self-regulatory organs raises questions about how independent the self-regulatory organs would be of ‘media interests’ (Leveson 2012: para 3.2).

It may be that the auditor would not authorise any self-regulator which did not have a majority of lay people, but the proposal would be strengthened if the large media organisations had to create self-regulatory organs that had certain minimum features.

This might include that all components of the self-regulator had a lay majority, that it be led by a lay chairman, and that journalist organisations such as the NUJ needed to be represented. It might also require that certain remedies are given by the self-regulator, e.g. right of reply or requirement that adverse adjudication be given as strong a prominence as the original article.

Another criticism of the Media Standards Trust proposals is that they seem to promote the creation of several self-regulatory organisations. The trust justifies this on the grounds that with new technology and new platforms there will be less cohesion between news providers, and forcing them all into ‘one tent’ would not necessarily work, although this would seem to fall foul of the need for ‘universal application’ in para 1.1.d of the Draft Criteria (Leveson 2012).

Allowing new self-regulators to be created to deal with technological developments would, they argue, be easier under this type of proposal, whilst fears that multiple self-regulators would create conflicting standards would be addressed by the Backstop Independent Auditor setting minimum standards (Media Standards Trust 2012: 8). A plethora of self-regulators creates several problems.

Whilst the auditor might be able to keep a minimum standard, there may be some self-regulators that wish to keep to the basic minimum laid down by the auditor and others which are looking for more of a gold standard. The likelihood is that if media organs are free to choose between the self-regulators then those organs most likely to engage in unethical conduct are going to join the regulatory regime which will impose the least burdens upon them.

It may be that the Auditor would restrict self-regulators to one per specific sector of media (e.g. having one self-regulator for newspapers, one for magazines, one for online sources and so on), but there is nothing to stop multiple self-regulators. The proposals also runs counter to arguments which have been put forward to create a multimedia regulator to accommodate the increasing convergence in media output.

Defamation Reform

Running in parallel with the Leveson Inquiry has been parliamentary consideration of major reforms to the law of defamation. The current Defamation Bill 2012, does much to recalibrate the existing law of libel to improve the position of defendants such as media organisations, but fails to address one of the major concerns that has arisen in relation to the existing defamation proceedings – namely costs and length of proceedings.

Whilst s44 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 provides the Lord Chancellor with powers to limit the maximum charged in Conditional Fees Arrangements and with strong indications that this will be applied in libel cases, procedural reform has been neglected and yet needs to be addressed if the overall costs are to be reduced to reasonable levels.

The failure of the Defamation Bill to address these issues has meant that several respondents to the inquiry have proposed creating dispute resolution schemes for defamation claims within the new media regulator, and even Lord Black’s proposal leaves open the option of adding an ‘arbitral’ arm to deal with libel (or potentially privacy issues) (Black 2012: para 36) which suggests that the industry suspect some major procedural reform of defamation is only a matter of time in coming.

The Alternative Libel Project, which is a collaboration of English PEN (‘the writers union’) and Index on Censorship, have made this the central aspect of their contribution to the inquiry. Although not suggesting a particular model, the project identifies three options which could help reduce the number of cases going to court, and the costs associated with concluding these claims. The project identifies a series of options which a new regulator could employ to resolve defamation claims:

• a voluntary arbitration service;
• a voluntary mediation service;
• a voluntary adjudication service;
• plus some form of Early Neutral Evaluation service (Index on Censorship/English PEN 2012: para 1.1 to 1.5).

It is noticeable that the proposals allow parties to opt to use the process rather than making it mandatory, which is justified on the grounds that the only way mandatory usage could be ensured would require state intervention which both organisations are opposed to (ibid: para 1.10-11). There are no incentives (other than perhaps the implicit cheapness of these alternatives) which are given to parties to use these mechanisms, but if parties chose to use the adjudication service and then one of them challenges that decision there are possible costs order which could be imposed on the challenger (ibid: para 1.11).

Whilst the project highlights how the proposal is effective in that it offers a number of ‘low cost options for those genuinely interested in resolving their dispute’ (ibid: 1.12, 2.3), it does recognise that extremely wealthy people may bypass the system (ibid, 1.13) and go straight to court resulting, unless otherwise dealt with by other statutory reforms, in high litigation costs in the individual case.

Others are less worried about statutory intervention. The Early Resolution CIC, headed by Sir Charles Gray (a retired High Court judge), recommended creating a statutory backed mandatory ADR process (Early Resolution: para 4.3, 6.2). Based on an existing scheme that Early Resolution started in 2011 (ibid: para 1.1, 7.1) that provides for adjudication on the issues by a member of a panel of media law specialists, assisted in some cases by two lay assessors, (ibid: para 7.1) the statutory scheme would be automatic, and any claim commenced in the High Court without using the system would automatically be stayed and referred to the fast-track mandatory adjudication process (ibid: para 7.3).

By doing so all the costs associated with the legal proceedings would be reduced, and the only cost would be the payment of the arbitrator(s) which in the region of £3,500 (ibid, 1.13) is significantly less than the average costs of defamation actions, and these costs the publishers would be encouraged to pay (ibid: para 7.5).

The dangers of publishers facing ‘vexatious or frivolous claims’ could be dealt with by defendants being able to request that the adjudicator require the claimant to provide security for costs or pay for all or part of the proceedings (ibid: para 7.6).

The great virtue of this system is that it provides a cheap means of resolving disputes and places no burden on the state (indeed, relieves the state of the costs of hearing most libel cases), reduces dramatically the costs to media publishers of having to defend such claims, and provides no barrier of access to justice to bone fides complainants. It clearly meets the draft criteria’s criteria for costs (Leveson: para 4) but if it is to work it needs to provide credible remedies which are at least on par with remedies currently awarded by the High Court including quantum of damages.

The ADR-type scheme suggested by both of these proposals is to be preferred to the over-legalistic suggestion such as Reuters’ Dispute Resolution Tribunal which would call for the creation of a full-blown adversarial tribunal which, whilst possibly cheaper than court proceedings, would still be substantially more costly than the ADR alternatives.

It is true that the Reuters’ scheme only permits use of the tribunal when mediation proves unsuccessful, and any form of adjudication has the benefit of helping to establish precedents and guidance, but adoption of adversarial approaches to these issues are costly and unnecessary. If the complainant is unsatisfied with the compulsory mediation he always has the remedy of seeking review of the decision by a court.

Predicting Leveson

Whilst a number of different schemes have been put forward to the inquiry, there are certain features on which a large degree of consensus is emerging. The new body has to be more separated from the press than the PCC and seen to be more independent, and many contributors believe the way to do this is by having a majority of non-press members on the constituent parts.

There is general consensus that appointments must be by an independent body (which may include the new regulator itself) rather than government. Publications should be required as part of the new regulatory regime to establish more robust internal complaints mechanisms, with the role of the new regulator being only to hear those complaints that the internal mechanisms cannot deal with.

This is very important as it also provides a means of reducing the costs of the new regulator by making use of it a ‘last resort,’ whilst the calls for annual reports and the identification of an employee of the publication as having responsibility for dealing with complaints/ensuring compliance that normally accompany such proposals, ensures the transparency which the draft criteria demands.

Identifying a responsible person for a publication or publishing group’s ethics gives that individual an incentive to ensure that the code is complied with within their organisation. There is some consensus that the new regulator must have both a complaints and a standards compliance role, although much variation exists as to the former.

There are other areas of much disagreement. The debate as to whether the new scheme should be based on statute or left to the publications to self-regulate is hotly contested. However, given that many of the high profile statutory scheme proposals are very light touch, it seems unlikely that Lord Justice Leveson would recommend a statutory body, funded by the government, in which the government would have any direct input in its day to day running.

Fears of the press that any statutory underpinnings or recognition of the new regulator would lead to a slippery slope whereby more and more statutory control was imposed, seems to be scaremongering of the worst kind. Statute has created numerous bodies and offices where the government of the day has been prevented from intervention once they have been set up and operated.

The emphasis in proposals on an independent appointments system, highlight a broad consensus that the government should not be involved in the appointments of the new regulator; and most of the funding schemes which have been suggested indicate that no state subsidy is desirable. Whilst this might be desirable, it may not be practical.

The proposals looked at here stress that a new robust regulatory system with greater powers to investigate and control standards can be funded by relatively minimum levies on media companies (for example, the Media Standards Trust suggest a levy of 0.05 per cent of revenues of the large companies in its scheme (Media Standards Trust 2012: 91), or media companies paying for investigations against them (Black 2012: para 82).

The argument that this would, therefore, allow the complainant to continue with his complaint, and not place an excessive cost burden on the state may seem attractive but it places a much greater financial burden on the press than the existing PCC system (exacerbated by the likely requirement for new internal complaints and compliance systems).

The new regulator is also likely to have a more broader remit, with responsibility for at least some online-only publications, and levies on publications may have to be substantial in order for the new functions it is to take on to work.

Suggestions that a ‘polluters pay principle’ (Black 2012: para 92; Media Standards Trust 2012: 80) should be in operation to ensure that the additional burden is borne by those publications that are found to be in breach of the code has a certain attraction since, if properly calibrated, it could avoid or reduce substantially any need for state funding.

In the environmental field, the government’s use of administrative cost-recovery charging has resulted in those premises which are most frequently visited, or engage in more dangerous activities, or have a record of non-compliance, paying more than other regulated operations (Bell and McGillivray 2008: 240-241).

If an unethical media organisation is to pay more of the costs of the regulatory system this would deter breaches of the code, which would have the virtue of incentivising publications to comply with the code. If this works then it would help reduce the costs to the regulator over time as the regulator would have less work to do.

The need for government funding in such a system may therefore seem to be unnecessary, although questions remain as to whether the state should give a one-off start-up grant to enable the new regulator to start  and provide a financial buffer in case of media organisations being reluctant to pay their dues.

A further issue which needs resolving is what publications the new regulator should cover. The ‘death of print’ and emergence of online news outlets such as the Huffington Post suggests that the new regulator should be spreading its wings beyond traditional printed newspapers and journals. This immediately raises the spectre of control of the internet and the blogger, and possible major infringement of free speech.

The Media Standards Trust’s suggestion that regulation should only be applied if the media company was of a particular size or wished to voluntarily join the regulatory regime (Media Standards Trust 2012: 73-75), might draw into the new regime major online publications or those online publications wishing to demonstrate ‘journalistic credibility’. But it would still exclude many tabloid or celebrity websites which are more likely to engage in the type of ‘journalistic practices’ which may be unethical.

Such sites might have a large following, yet not the personnel nor turnover, to fall with the proposed Media Standards Trust’s regulatory system. In one sense this may not matter as engagement in unethical behaviour by such sites may also involve breach of the law, and lacking the resources of major media players, such sites will be checked to a degree by the ordinary law. The target of their attention celebrities can afford to litigate when there are invasions of privacy or harassment, whilst if ‘civilians’ are caught up in the report the relatively cheap harassment suit or prosecution is available.

The problem with online publications is that they can be set up relatively cheaply and quickly and have a huge following in a relative short space of time. Their influence can, therefore, be potentially as important as major media players, and the spectre in recent years of politicians playing to websites such as Mumsnet, shows how even what might be considered a non-political special interest site becoming an agenda-setter.

Yet no one would suggest that Mumsnet should be regulated. It provides news much in the same way as the newsletter or bulletin did in the pre-internet world. Can a definition of the type of site which has a degree of equivalence to the newspaper rather newsletter be made? If it can, what is to stop such sites off-shoring? Extending a regulator’s coverage to online and new media platform publications is perhaps one of the most difficult tasks facing Lord Justice Leveson.

Lord Justice Leveson’s draft criteria states:

Any solution must be perceived as effective and credible both by the press as an industry and by the public: a) It must strike a balance, capable of being accepted as reasonable, legitimate and in the public interest by all (Leveson 2012: 1.1.).

The public interest is at the core of the new regime, and it must be addressed both in the structure of the new regulator, its powers and the code it enforces.

For this reason, it is important that Lord Justice Leveson ensure that the new regulator does not overburden the press with costs and new sanctions, but provides sufficient relief to those complaining about press misconduct; minimizes both press and state influence over the regulator (which can be achieved by increasing the presence of laypersons and including representatives from civil society and journalist organisations such as Liberty and the NUJ); and ensures that all regular publications above a certain size (which might include elements of turnover and readership) are within its control.

This suggests a form of statutory regime which makes membership of the new regulator compulsory for those publications that meet criteria similar to those in the previous sentence.

References

Bell, Stuart and McGillivray, Donald (2008) Environmental Law, Oxford: Oxford University Press, seventh edition

Black, Lord (2012) Third Witness Statement of Lord Black of Brentwood to the Leveson Inquiry. Available online at http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Submission-by-Lord-Black-of-Brentwood1.pdf, accessed on 20 July 2012

Frost, Chris (2012) Witness Statement of Professor Chris Frost, Chair of NUJ Ethics Council, National Union of Journalists. Available online at http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Submission-by-Chris-Frost-on-behalf-of-the-National-Union-of-Journalists.pdf, accessed on 20 July 2012

Hunt, Lord (2012) Submission to the Leveson Inquiry of the Rt Hon Lord Hunt of the Wirral MBE. Available online at http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Submission-by-Lord-Hunt-of-Wirrall1.pdf, accessed on 20 July 2012

Index on Censorship/English PEN (2012) Alternative Libel Project: Submission to the Leveson Inquiry. Available online at http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Submission-by-Alternative-Libel-Project-English-PEN-and-Index-on-Censorship.pdf, accessed on 20 July 2012

Leveson, Lord Justice (2012) Draft criteria for a regulatory solution, Available online at http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Draft-Criteria-for-an-effective-Regulatory-Regime.pdf, accessed on 20 July 2012

Media Regulation Roundtable (2012) Final proposal for the future regulation of the media: a Media Standards Authority, Available online at http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Submission-by-Media-Regulation-Round-Table.pdf, accessed on 20 July 2012

Media Standards Trust (2012) A free and accountable media: Reform of press self-regulation: Report and recommendations, Media Standards Trust submission to the Leveson Inquiry. Available online at http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Submission-by-Media-Standards-Trust.pdf, accessed on 20 July 2012

Press Complaints Commission (2012) PCC transition to a new regulatory body, Available online at http://www.pcc.org.uk/news/index.html?article=NzcyNA==, accessed on 20 July 2012

South West Wales Media (2012) Submission to Leveson Inquiry, Available online at http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-from-South-West-Wales-Media.pdf, accessed on 20 July 2012

Note on the contributor

Dr Damian Paul Carney is Principal Lecturer in Law at the University of Portsmouth. A qualified barrister, he has published extensively on media law including the first legal academic article on phone-hacking at the News of the World. Currently, he is writing a monograph that studies the use of unattributed sources by journalists and other public communicators.

This is an extract from The Phone Hacking Scandal: Journalism on Trial, second and updated edition (edited by Richard Lance Keeble and John Mair). It will be published by Abramis on 15 October 2012. This online version was edited for format.

Reblogged from Inforrm's Blog:

This is the final Inforrm Law and Media Round Up before the summer.  The Parliamentary recess has begun and the Trinity legal term ends tomorrow - the Michaelmas legal term does not start until October.   Over the next couple of months the courts and parliament will be quiet and Inforrm will be taking a summer break.

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I read with interest Daniel Bennett’s comments on self-reporting in the media and am not surprised that the press studiously avoid stories about their own misdeeds. If they reported even 10 per cent of them the newspapers would be unable to find space for anything else.

Pardon the cynicism in the opening paragraph but editors, like politicians and academics have a blind eye when it comes to recognising fault in themselves. It is not this character flaw however that has precipitated the current hacking scandal. While the lack of self-criticism certainly represents at least a low level of dishonesty, in itself it does not explain the criminality that has allegedly taken hold of certain areas of the media.

If the criminal justice system had been more robust in the past and not given the media an easy ride where it was clearly violating the law then perhaps the perpetrators of phone hacking would not have believed themselves untouchable.

A direct parallel can be drawn with criminality in juveniles and on sink estates. The media howl with indignation about the police and courts being lenient on the thugs and blame this leniency for the proliferation of crime. Hardly surprising then that the lack of action against rogue journalists and editors leaves them thinking they are beyond the reach of the law.

As is constantly being stated by most of the more level headed commentators and witnesses at Leveson it is the failure of the criminal justice system to deal with violations of the criminal law by the media or, on the odd occasion where they have acted, the ridiculously small penalties imposed that have caused this current situation.

The media do not need any more regulation; they need to be treated as we would expect everyone else to be where they act criminally. No amount of regulation can stop criminal behaviour. It is like suggesting that we can reduce burglaries by regulating burglars under the EU Working Time Directive.

Almost certainly the outcome of the Leveson Inquiry will be more press regulation, press regulation that will only chill the best of our media and have no effect on the worst.

Our legal tradition allows our courts to be under the scrutiny of the public and it is the reason we have a press box in every court. The media facilitate that scrutiny but if they themselves hold the system in contempt then they are failing in their job. The criminal justice system is failing in its job if it does not hold criminals to account and the past reluctance to use the law against a powerful press has led to a mind-set in some in the media that they are above the law.

What we need is less regulation and more prosecution – that way only the crooks get penalised. To regulate the whole of the media as a response to the outright criminality of a minority within it is absurd.

Barry Turner is a senior lecturer in media law at the Centre for Broadcasting and Journalism at Nottingham Trent University

Historical context

This event hosted by the City Media Network, as part of the Sociology Department PhD students seminar series, will take place on Tuesday 3 July:

Historicising the UK phone hacking scandal: the origins of wiretapping and early cases in the United States and Britain with Colin Agur (Columbia University, Graduate School of Journalism)

The ongoing revelations of widespread phone hacking by NewsCorp raise questions about journalistic ethics and how effectively governments can protect privacy in a world of mass mobile phone usage. To understand the significance of the current scandal, we can look to the origins of wiretapping: the relationship between the telephone and recording technology dates back to their nearly simultaneous releases in the 1870s. Since then, as technologies have improved, wiretapping has became a favored tool in police investigations on both sides of the Atlantic, and the subject for several scandals. This talk explores the roles different parties (bootleggers, bookies, police, journalists) have played in the growth and sophistication of telephone surveillance. It contextualises the current UK scandal, showing how a tactic developed by and for police has been put to use by powerful corporate actors.

Please contact belairgagnon.v(at)gmail.com for general inquiries. Full details.

Trial by media

Secondly, a new book chapter, by one of the CLJJ’s directors, Chris Greer, and former director Eugene McLaughlin:  ‘Trial by Media: Phone-hacking, Riots, Looting, Gangs and Police Chiefs’.

Abstract: Contemporary police chiefs must operate within an information-communications environment that differs radically from the more stable and predictable conditions conceptualised in previous research. The most important dimension of this multi-faceted environment is the emergence of the 24-7 news mediasphere. This paper examines the changing nature of news media-police chief relations, and the rising news media ‘politics of outrage’, by analysing the ‘trial by media’ that defined Sir Hugh Orde’s attempt to become Commissioner of the MPS in August/September 2011.

Cite as: Greer, C. and McLaughlin, E. (2012) ‘Trial by Media: Phone-hacking, Riots, Looting, Gangs and Police Chiefs’, in J. Peay and T. Newburn (eds.) Policing, Politics, Culture and Control: Essays in Honour of Robert Reiner (Festschrift), London: Hart.

This paper was presented to the Crime, Justice and Society Research Group at City Law School on 30 May 2012.

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A high-profile week at the Leveson Inquiry, with evidence from Rebekah Brooks, the MailOnline editor Martin Clarke and Andy Coulson (see Natalie Peck's Inforrm roundup).  As well as sharing David Cameron's text-speak (lol), Brooks provided the inquiry with an email sent to her by News Corp’s head of communications, Frederic Michel.

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The Leveson Inquiry and Parliament are still on Easter vacation and the new legal term begins on Tuesday 17 April, but there is no shortage of news and commentary to report, following Inforrm's own mini-break from our usual weekly round up.

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The Open Justice UK group has been refused permission to live tweet a case in Scotland, as Cristiana Theodoli (@_cric) explains here. While journalists have applied to tweet and tweeting was allowed during sentencing in the Tommy Sheridan trial last year, not one journalist has gained authorisation to live tweet a full trial, according to Theodoli (specific permission is required for journalists, unlike England & Wales).

Open Justice UK liaised with the Scottish court ahead of the selected trial but:

“Today, just a day or two before the trial is due to start, we received a short email stating that the Judge has a number of concerns that he feels should be taken up at a senior level and the timescale would not allow for it.”

Meanwhile, at a High Court (Chancery division) hearing in London last Thursday (23 February) the Guardian secured access to court documents relating to News International and Glenn Mulcaire.

In an approved judgment released on Monday (27 February), Mr Justice Vos set out the reasons he has allowed the Guardian (“and any other media organisations that request them”) to access redacted documents, including the “generic Particulars of Claim”, “the Notice to Admit” and the “Response”, mentioned at the phone hacking pre-trial review on 19 January 2012. No parties objected to the Guardian’s request to access a fourth document, the “generic list of issues”.

I’ve flagged up a few key parts below.

Mr Mulcaire’s counsel were concerned

“…that reporting of some parts of the 3 documents will create a substantial risk that the course of justice in the further criminal proceedings that Mr Mulcaire may face will be seriously impeded or prejudiced.” [3]

Vos J found:

“There is a distinct and crucial public interest in scrutinising the decision-making process in this case, and in knowing the facts on which the decisions are being made.” [80]

He said:

“it seems to me to be entirely legitimate for GNM and other media organisations to wish to see unredacted copies of the core documents on the basis of which these proceedings have been and are being conducted.” [81]

…

“First, so far as can be judged today, reporting of the parts of the 3 documents that Mr Mulcaire wishes to see redacted would not, with the one exception already mentioned, give rise to a ‘not insubstantial’ risk of prejudice to the administration of justice in Mr Mulcaire’s future trial (if there is one)”… [82]

He concluded that GNM should be provided with unredacted copies of the three documents, save for several stipulated redactions detailed in par 87 (reasons discussed in the judgment).

The judgment discusses the application of the CPR Part 5.4C(2) and the “Open justice availability of documents to non-parties” (CPR Part 5.4C.10).

You can read the judgment in full, below:

HT: @adamwagner1 for alerting me to the published judgment.

“[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

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Websites

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