The recent court victory of Milton Keynes Citizen reporter Sally Murrer should be savoured by everyone interested in freedom of expression.
It saw imported European law delivering the same sort of justice that English common law delivered in a case involving a newspaper almost 250 years ago.
Murrer’s case raised important questions about the power of the police to interfere with the flow of information to and from the media in a democracy.
This has been an area of friction.
For example, information leaked to the media is increasingly being investigated for possible offences under Section 55 of the Data Protection Act, with journalists quizzed about their role.
Police have also searched an MP’s office in Parliament to probe leaks of information to the press, have tried (unsuccessfully) to prevent publication of reports about the ‘Cash for Honours’ affair, and denounced Channel 4’s investigative journalism about extremism in Britain’s mosques – only to be forced to apologise.
To this trend of assertive policing in the realm of journalism is now added the startling case of Sally Murrer.
In time-honoured fashion, she received information about low-level crime stories from a serving police detective, such as that a local footballer was suspected of assaulting a DJ at a hotel party. Not all the stories were published.
Murrer was charged with aiding and abetting misconduct in a public office. The 50-year-old mother was strip searched, her home and office were searched and her notebooks seized.
The prosecution was based on secret recordings, after police bugged her conversations with the Det Sgt. A warrant for the bugging apparently failed to mention she was a journalist.
Judge Richard Southwell, at Kingston Crown Court, was persuaded by defence counsel Gavin Millar QC that the evidence was inadmissible because the bugging of a journalist in these circumstances infringed the right to freedom of expression under Article 10 of the European Convention on Human Rights.
Article 10 provides that everyone has the right to receive and impart information and ideas without interference by a public authority, subject to various exceptions that are prescribed in law and necessary in a democratic society. There was no exception that justified the bugging and interference with Murrer’s Article 10 right.
Gavin Millar QC told the hearing: “One wonders how many journalists would end up in this court if it was justifiable. We wouldn’t have a journalistic profession – they would all be fighting cases in court.”
With bugging evidence excluded, the prosecution collapsed.
The case is reminiscent of a great precedent in English jurisprudence, the case of Entick v Carrington (1765) in which a search warrant issued by the Secretary of State for the Northern Department, the Earl of Halifax, was held to be “illegal and void”.
The government was concerned by an edition of the North Briton newspaper, whose editor used it to ridicule its administration. In a clampdown on suspected collaborators, the warrant invalidly ‘authorised’ the search of clerk John Entick’s home and seizure of his private papers to secure evidence of sedition.
Officers forced entry and spent four hours searching his house, “carrying away goods and chattels”. Similar warrants had been used without challenge for the past 80 years but the court was unimpressed by that argument.
Entick’s counsel said: “It was reserved for the honour of this Court, which has ever been the protector of the liberty and property of the subject, to demolish this monster of oppression, and to tear into rags this remnant of Star-Chamber tyranny.”
Strong words indeed.
Finding in Entick’s favour, the judge Lord Camden said: “What would the Parliament say if the judges should take upon themselves to mould an unlawful power into a convenient authority, by new restrictions?….And with respect to the arguments of State necessity, or a distinction that has been aimed at between State officers and others, the common law does not understand that kind of reasoning, nor do our books take notice of any such distinction.”
Nowadays, our criminal law has become such a dense web of common law and statutory offences that there is often at least an accusation that can be levelled against a journalist who acquires information that vested interests would rather keep under wraps.
With the police flexing their muscles over leaked information, and reporters increasingly in the firing line, the courts must protect a fair balance between the state and individual freedoms, particularly the journalistic freedom that is the bedrock of any democracy.
Murrer’s court victory is some comfort, but the profession is unlikely to be reassured until the police tread more carefully pre- and post-charge when dealing with cases involving journalists and freedom of expression.