Government curbs on press freedom risk legal chaos

Attempts to track down the Matt Hancock whistleblower and prosecute journalists for embarrassing the Government would create a legal minefield, warns Raymond Snoddy

Culture Secretary Oliver Dowden has deservedly taken a lot of stick for essentially promoting the privatisation of Channel 4 while at the same time “consulting” on the issue.

Any privatisation of the channel is unnecessary, unwanted, unjustified and potentially damaging to the structure of public service broadcasting and independent production in the UK.

As the chairman of Channel 4 Charles Gurassa put it in a letter to the Culture Secretary, privatising would be “a high risk” and a “damaging path.”

Dowden should be criticised as intensely and frequently as it takes to persuade him of the error of his ways, almost certainly under the influence of Broadcasting Minister John Whittingdale.

It is therefore pleasing in the interests of fairness and balance to be able to praise Oliver Dowden for an intervention in the interests of press freedom.

The Culture Secretary has written an important letter to the Information Commissioner Elizabeth Denham. It warns that raids to identify whistleblowers who leaked CCTV footage that led to the resignation of Matt Hancock as Health Secretary, could have a chilling effect on public-interest journalism.

Laptops and mobile phones seized on the raids, with the help of Scotland Yard, are being examined for possible prosecution under section 170 of the Data Protection Act. This is concerned with personal data obtained unlawfully.

MPs’ expenses revelations were also illegal but in public interest

Crucially the Act includes exemptions for journalism and provides for public interest issues to go to court for adjudication.

Further praise for Dowden as he reminds Denham of how free speech and a free press are “the cornerstones of our liberties and democracy.”

The Culture Secretary went even further by asking the Information Commissioner how she planned to ensure that the investigation “fully takes into account the journalistic exemptions in the Data Protection Act 2018.”

There is little doubt that the pictures of the former Health Secretary in a clinch with his special advisor Gina Coladangelo in his own office taken with the office’s own security cameras were, at the obvious level, obtained illegally.

It was illegal in a similar way as the data on MP’s expenses stolen and sold to The Daily Telegraph.

As with MPs’ expenses, there is a massive public interest in pictures obtained by The Sun, demonstrating beyond doubt that Hancock broke his own social distancing rules, quite apart from cheating on his wife.

The Information Commissioner has argued that the raids were undertaken to establish the facts and only then would a determination be taken on whether or not to prosecute.

Elizabeth Denham swore she was passionate about free speech in general and whistleblowers in particular, although the general approach of the Information Commissioner’s Office is that whistleblowers would, in most cases, lose their protection by going to the media.

Whatever the Information Commissioner decides in this case is almost academic.

If the case of the Hancock leaker were to go to court, complete with a public interest defence, all history suggests that no jury would convict when presented with, at the very least, a hypocritical minister caught with his metaphorical pants down.

Treating our own journalists like foreign spies

Two cheers for Oliver Dowden for his letter to the Information Commissioner.

But only two. Because, at the same time as lauding the journalistic exemptions of the Data Protection Act, he is a member of a Government that, through the Home Office, is seriously considering a revamp of the Official Secrets Act that could lead to journalists facing up to 14 years in jail.

The current Home Office consultation – yes another consultation now closed – says that the proposed legislation would mean that journalists who leak, or receive, classified information would be treated exactly the same as spies.

This would mean that no public interest defence would be available to journalists for “serious unauthorised disclosure” of  information.

As many have already pointed out the definition of what constituted “serious unauthorised disclosure” would lie almost entirely in the hands of the Government.

The Home Office justifies its approach on the grounds that the changing nature and ease of data transfers is now capable of causing far more serious damage than in the past.

If such an Act, being billed as legislation designed to “counter state threats”, was currently in place, it is entirely possible that The Sun editor Victoria Newton would by now be on her way to jail.

Prosecutors could argue that “serious unauthorised disclosure” of confidential information was obtained unlawfully from within a Government office. Newton might also be in trouble for refusing to say who provided her with such serious unauthorised information.

Danger of no ‘public interest’ defence

The increase in sentences from a maximum of two years to 14 years is in line with a Law Commission recommendation for tougher sentences for breaches of the Official Secrets Act.

The Commission, however, argued there should be a exemption for journalists and their sources and prosecutions would fail if they could prove disclosure was in the public interest.

There is no such exception in the Home Office proposals, which argue that a public interest defence “could undermine our efforts to prevent damaging unauthorised disclosure.”

The revealing disclosures of Dominic Cummings in recent weeks, going to the heart of the competence of the present government, would almost certainly be caught under such legislation.

As Alan Rusbridger, former editor of The Guardian, writing interestingly in The Mail on Sunday, put it: “These threatened measures amount to an attempt to criminalise journalism and it is astonishing that a government led by a former journalist should be proposing them. Is it conceivable – shocking suggestion I know – that Boris Johnson has not been paying full attention?”

Time for Dowden to write another letter

Should such proposals become law, legal chaos could ensue.

Presumably the new Official Secrets Act would take precedence over the Data Protection Act complete with its public interest defence.

Yet what would happen if defending barristers were to put public interest defences in court in Official Secrets prosecutions?  Would defence barristers be silenced by the judge, or would the judge merely instruct juries that such defences were not provided for under the law?

Would juries continue to acquit as they have in the past whether they had heard a full public interest defence or not?

If they did not we could be facing a succession of journalists heading for jail.

Perhaps it’s time for Oliver Dowden to write another letter, this time to one of his more hapless Cabinet colleagues, Home Secretary Priti Patel on the subject of press freedom.

Dowden could also start to think again about his disastrous predilection for privatising Channel 4.