A journalist’s belief that they acted in the public interest by paying an official is not a defence, says judge

By Martin Hickman

A journalist’s belief that they acted in the public interest by paying a public official for information does not protect them from the criminal law, a judge said today.

At the trial of six Sun journalists accused of conspiring to commit misconduct in a public office by paying police officers or other officials, Mr Justice Richard Marks told the jury at Kingston Crown Court: “The fact that a journalist takes the view that disclosure of a story is in the public interest is not a defence to this charge.”

He added: “It does, however, have a relevance in that it is a consideration when you are deciding whether the public officer had a reasonable excuse or justification for disclosing the confidential material.”

The judge added that the public interest test might also have a bearing on a second essential element of the offence – whether the official’s conduct was so serious as to amount to abuse of the public’s trust in him.

The Sun’s head of news Chris Pharo, development director Graham Dudman, picture editor John Edwards and ex-deputy news editor Ben O’Driscoll, and two reporters, Jamie Pyatt and John Troup, deny a total of six counts of conspiring to commit misconduct in public office.

Giving his legal directions to the jury after the end of evidence in the case, Mr Justice Marks said that prosecutors argued that the “real reason” public officers had supplied information was “because they were paid sizeable amounts of money” rather than for any reason of public interest.

The judge said: “You may think that a reasonable excuse is intended to cover the sort of case where a whistle blower is disclosing some behaviour which the public really ought to know about but is being kept from them…”

Mr Justice Marks added: “The defence, on the other hand, say that the consequence of disclosure in this case which involved putting into the public domain what the public were entitled to know was not so serious as to amount to misconduct in public office.
“Furthermore, they argue that it does not become so because payment was made for the information.”

The judge said the fact that some Sun readers might have been interested in the resulting stories “is not necessarily the same as it being in the public interest for the stories to be published.”

He said the jury must be sure of four things before they could find any one of journalists guilty, namely that:

1) “He conspired together with another or others to purchase information from an individual whom he knew at the time was a public officer and was acting as such;

2) “He knew or intended at the time that he entered into the agreement that at least some of the information that was to be provided would be information that the public officer held in confidence by virtue of his employment;

3) “He knew or intended at the time, that the behaviour of the public officer in providing information held in confidence by virtue of his employment, would amount to wilful misconduct on the part of the public officer;

4) “The misconduct of the public officer in agreeing to sell the information was, to the knowledge or within the intention of the Defendant at the time he entered into the agreement: a) sufficiently serious to amount to an abuse of the public’s trust in the office holder and b) was misconduct for which he (the public officer) had no reasonable excuse or justification.”

Mr Justice Marks said that, with the exception of Count 2 (where Mr Dudman is alleged to have paid an unidentified police officer for information about the investigation into the Soham murders in 2002), the jury must be sure a defendant conspired with a public officer and at least one other journalist.

Before reading out his directions this afternoon, the judge told the 12 jurors (all wearing Christmas jumpers for Save the Children): “I am the judge of the law and you are the judge of the facts.”

The case resumes on Monday, with the expectation that prosecution and defence closing speeches will be concluded by Friday. Owing to the need of a juror to attend a funeral, Thursday is scheduled to be a non-sitting day.

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