Daily round up of legal news and content from The Guardian, added daily to help inform visitors to Ratedlegalprofessionals.
- CPS statement on decision not to charge police officer or Amelia Hill
Alison Levitt QC, principal legal adviser to director of public prosecutions, says prosecution would not be in public interest
On the 2 April 2012 the Crown Prosecution Service received a file of evidence from the Metropolitan police service requesting charging advice in relation to two suspects. The first is a serving Metropolitan police officer in the Operation Weeting team whose name is not in the public domain. He is currently suspended. The second suspect is Amelia Hill, a journalist who writes for the Guardian newspaper.
The allegation is that the police officer passed confidential information about phone-hacking cases to the journalist.
All the evidence has now carefully been considered and I have decided that neither the police officer nor the journalist should face a prosecution. The following paragraphs explain the reasons for my decision. It is important to bear in mind that the question I have addressed is whether there is enough evidence resulting from the investigation to provide a realistic prospect of conviction and whether a prosecution is required in the public interest. Those are the tests set out in the code for crown prosecutors issued by the director of public prosecutions under the Prosecution of Offences Act 1985. It is not my function to make findings of fact and I have not done so. Both the police officer and Ms Hill are entitled to be presumed innocent and that is the basis upon which I have approached this case.
In reaching my decision, I have applied the interim guidelines on assessing the public interest in cases affecting the media, which were recently published by the director of public prosecutions.
The suspects have been considered separately, as different considerations arise in relation to each of them.
Between 4 April 2011 and 18 August 2011, Ms Hill wrote 10 articles which were published in the Guardian. I am satisfied that there is sufficient evidence to establish that these articles contained confidential information derived from Operation Weeting, including the names of those who had been arrested. I am also satisfied that there is sufficient evidence to establish that the police officer disclosed that information to Ms Hill.
I have concluded that there is insufficient evidence against either suspect to provide a realistic prospect of conviction for the common law offence of misconduct in a public office or conspiracy to commit misconduct in a public office.
In this case, there is no evidence that the police officer was paid any money for the information he provided.
Moreover, the information disclosed by the police officer, although confidential, was not highly sensitive. It did not expose anyone to a risk of injury or death. It did not compromise the investigation. And the information in question would probably have made it into the public domain by some other means, albeit at some later stage.
In those circumstances, I have concluded that there is no realistic prospect of a conviction in the police officer’s case because his alleged conduct is not capable of reaching the high threshold necessary to make out the criminal offence of misconduct in public office. It follows that there is equally no realistic prospect of a conviction against Ms Hill for aiding and abetting the police officer’s conduct.
However, the information disclosed was personal data within the meaning of the Data Protection Act 1998 and I am satisfied that there is arguably sufficient evidence to charge both the police officer and Ms Hill with offences under section 55 of that Act, even when the available defences are taken into account.
I have therefore gone on to consider whether a prosecution is required in the public interest. There are finely balanced arguments tending both in favour of and against prosecution.
Journalists and those who interact with them have no special status under the law and thus the public interest factors have to be considered on a case by case basis in the same way as any other. However, in cases affecting the media, the DPP’s interim guidelines require prosecutors to consider whether the public interest served by the conduct in question outweighs the overall criminality alleged.
So far as Ms Hill is concerned, the public interest served by her alleged conduct was that she was working with other journalists on a series of articles which, taken together, were capable of disclosing the commission of criminal offences, were intended to hold others to account, including the Metropolitan police service and the Crown Prosecution Service, and were capable of raising and contributing to an important matter of public debate, namely the nature and extent of the influence of the media. The alleged overall criminality is the breach of the Data Protection Act, but, as already noted, any damage caused by Ms Hill’s alleged disclosure was minimal. In the circumstances, I have decided that in her case, the public interest outweighs the overall criminality alleged.
Different considerations apply to the police officer. As a serving police officer, any claim that there is a public interest in his alleged conduct carries considerably less weight than that of Ms Hill. However, there are other important factors tending against prosecution, including as already noted, the fact that no payment was sought or received, and that the disclosure did not compromise the investigation. Moreover, disclosing the identity of those who are arrested is not, of itself, a criminal offence. It is only unlawful in this case because the disclosure also breached the Data Protection Act.
In the circumstances, I have decided that a criminal prosecution is not needed against either Ms Hill or the police officer.
However, in light of my conclusion that there is sufficient evidence to provide a realistic prospect of convicting the police officer for an offence under the Data Protection Act, I have written to the Metropolitan police service and to the IPCC recommending that they consider bringing disciplinary proceedings against him.
Alison Levitt QC, principal legal adviser to the DPP
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- Secret justice bill not perfect, says Ken Clarke
But Clarke defends closed evidence where it affects national security as ‘otherwise you’d have terrorists making notes’
Ken Clarke has admitted plans to allow evidence to be given in closed proceedings in cases where it affects national security are “less than perfect” but insisted the only alternative would be “silence”.
The Conservative justice secretary has dropped plans to introduce closed inquests with evidence heard in private from the government’s “secret justice” bill to be published on Tuesday following a dispute between David Cameron and Nick Clegg.
The justice and security bill also stipulates that closed sessions will only be allowed for cases involving national security, rather than all cases containing sensitive information. Judges will decide whether to agree to a minister’s request that evidence should be heard only in secret on grounds of national security.
However, the main purpose of the bill will remain – evidence and claims made by MI5, MI6 and GCHQ would be presented to the court but would not be disclosed to individuals seeking damages or making complaints. As a result, they would not be able to challenge the agencies. Instead, their interests will be presented by vetted “special advocates”.
The move to ditch plans to hold sensitive inquests behind closed doors has been described as part of “slight concessions” made to “sweeten the bitter and unnecessary pill”, according to Shami Chakrabarti, the director of the human rights group Liberty.
Clarke defended his plans to allow evidence to be given behind closed doors in cases where it affects national security, insisting that “no country in the world” allows spies and national intelligence to give evidence in court because otherwise, “you’d have terrorists in the public gallery, lining up making notes”.
He told BBC Radio 4′s Today programme: “A judge will decide, I’ve made that clear in what I put forward, and the only issue where you’ll go into closed proceedings will be national security. No evidence that at the moment is heard by a claimant, a plaintiff or by the press is going to be excluded. We’re talking about additional evidence, when it’s relevant to the case, that can be given – has to be given – in private, in special closed proceedings, by a spy who can’t possibly reveal his sources or his technologies or what the agency knows.
“It’s taken some time to get here, and I will agree that the consultation, which is what I announced, has enabled us to refine it and improve it, and some of the critics are just… are going to be irreconcilable.
“Of course it’s less than perfect, but at the moment the alternative is silence. You either have the judge hearing the evidence in closed material proceedings or what happens at the moment is this evidence is never given at all. Sometimes you have the agencies and the government having to pay out millions of pounds to settle a claim which the agencies are still saying is unfounded, but we can’t call the evidence to prove it.”
Clarke used a column in Tuesday’s Daily Mail to announce the decision to scale back the number of secret trials, admitting the original plans were “too broad”.
Government officials heralded the move as the main concession in one of the most controversial pieces of legislation contained in the Queen’s speech, following a well-publicised row behind the scenes that delayed publication of the bill for almost a week.
Liberal Democrats are claiming credit for ensuring that inquests will not be subjected to so-called “closed material procedures”, which would mean that any information held by the security and intelligence agencies could be heard only in secret.
The advantage of the concession for the prime minister is that his deputy and his Liberal Democrat colleagues in the coalition government will be able to argue they have scored a victory.
But Lib Dem peer Lord Macdonald, former director of public prosecutions, warned that despite changes, the measures in the bill is still “offensive” to the traditional idea of a fair trial.
MacDonald welcomed the improvements but said the reforms to the bill had not gone far enough.
He told Today: “The fact of the matter is that people whose cases are decided against them on the basis of evidence they’ve never been allowed to see are still going to feel, I think, bitterly aggrieved by procedure of this sort and feel they haven’t got justice. And I think some government wrongdoing in the area of national security is going to be less likely to see the light of day if we have closed, secret sessions in court.
“So I think the bill still contains much that is offensive to our traditional notions of equal parties adjudicating cases in front of an impartial judge and I think we still need to look very closely at it.”
Clarke said later on Today: “The initial proposal was ministers subject to judicial review by judges; it was never ministers alone. But yes, I have modified it. I’ve made absolutely clear the final decision is with a judge, because the people I’m trying to satisfy are people I normally agree with. I mean I don’t think Nick Clegg’s any more in favour of civil liberties than I am and I don’t think many of my critics are.”
On the danger of ministers going into closed session to avoid embarrassing matters, Clarke added: “I don’t want that either, and what we’re now clear is it’s national security you’ll have to satisfy the judge is at risk before you go into closed session.”
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