Don’t Let Police Take Liberties

The Leveson Inquiry’s carelessness with basic democratic principles has undermined journalistic freeedom

Nick Cohen

Heroism does not suit men and women who serve Rupert Murdoch. The crimes of his newspapers brought the greatest attack on press freedom Britain has seen in peacetime. His American TV station Fox News is famed for the braying stupidity of its propaganda.

Clodagh Hartley most certainly did not fit the model of the crusading journalist. The Sun‘s Whitehall correspondent hated her work. Her counsel at the Old Bailey described how the paper’s political editor, Tom Newton Dunn, “had succeeded in stealing contacts” from her. “Bullying” and constant demand for exclusive stories from the newsdesk made her ill.

But then free societies should allow ordinary, unheroic people to hold power to account without hearing the thump of policemen’s boots on their stairs. An Old Bailey jury thought so, and acquitted Hartley of charges of arranging unlawful payments to a tax official. But the wider implications of the operation against Hartley and 24 other Sun journalists currently on trial remain ominous in the extreme. The British state will now use surveillance technology to unmask the contacts of newspaper journalists, broadcasters and political campaigners. They will act without a warrant from a judge. The smallest leak of classified information will set them off.

Clodagh Hartley’s leak was so trivial hardly anyone remembered it. She paid a Revenue and Customs source £17,000 for a series of minor stories, the most notable of which contained details of how Alastair Darling’s Treasury was planning to spin the 2010 Budget.

The prosecution did not say that she had threatened national security or harmed any citizen. When Hartley said she was “just doing her job” by exposing a Whitehall spin, it came up with a reply that had a horrible ring of truth to it. The prosecution said the press did not need to hold the government to account. That was the job of the opposition. In a few words, a Crown Prosecutor, briefed by the state, funded by taxpayers’ money, showed us where Hacked Off and Lord Leveson’s carelessness with basic democratic principles have left Britain. Only the official opposition can use confidential information to expose spin or worse. Everyone else must steer clear. (Incidentally, they don’t even offer that small concession sincerely. When the Conservative MP Damian Green was an Opposition MP, the Metropolitan Police ignored a tradition of Parliamentary privilege dating back to the 1640s and arrested him.)

We cannot know why the jury acquitted Hartley. But it is reasonable to assume that they were not impressed by the notion that embarrassing information must remain in the hands of the political class, bureaucracy, police and armed forces. Jurors on the whole do not respond well to prosecutors telling them to vote keep the public in ignorance.

The jury could do nothing for Jonathan Hall, Hartley’s source at the Revenue, however. Hartley had in all honesty assured him that the Sun would hide his identity. There is no more sacred principle in journalism than your obligation to protect your sources — indeed at times it can seem the only principle we have. Betray the source and you break your word. Betray the source and you harm the public interest, for whistleblowers will not come forward if they know that journalists will hand them over to the police.

Rupert Murdoch betrayed him nevertheless, just as he betrayed Hartley, and dozens of other journalists, who had loyally worked for him, and dozens of other sources, who had naively trusted him. To save his own skin after the hacking scandal, Murdoch opened up his company’s electronic archives and allowed the police to haul in anyone who might or might not have behaved badly, however inconsequential the alleged offence. The police did not need warrants or reasonable suspicion. Murdoch and his henchmen gave them everything they could want gratis.

Partly because of contempt of court laws and partly because of the cultural contempt for Sun journalists and those who deal with them, the enormity of one of the largest media organisations in Europe inviting the state to arrest more than 100 of its journalists and sources has barely registered.

The trials of the men and women Murdoch betrayed will end eventually. I cannot comment on them, but it is a matter of public record that many other journalists will present public interest defences to juries. We will then see if the vast police operation against them was justified. I — and I hope many others — will hammer the Met and Crown Prosecution Service if it is not. But even when the assault is over, the pressure on free journalism in Britain will not abate. The Leveson Inquiry told a receptive bureaucracy that no civil servant was ever justified in leaking to the media. The police have taken the advice to heart and have been using powers politicians swore would only be used against terrorists and organised crime to spy on the media.

They covertly accessed the phone records of Tom Newton Dunn, the political editor who made Clodagh Hartley’s life a misery, to find out who had been talking to him about the Plebgate affair. They downloaded all the records of conversations from phones from the Mail on Sunday newsdesk simply to discover who was helping the paper find stories about the disgraced cabinet minister Chris Huhne. They have placed left-wing figures, including the comedian Mark Thomas, on a database that monitors “domestic extremism”. As with the Sun journalists the justifications for police action were trivial. “Plebgate” was about whether a cabinet minister insulted a police officer. The Huhne affair began with a minor violation of traffic law.

I never like people who compare Britain to a dictatorship — it diminishes the suffering of the subjects of tyrannical regimes. That said, you can say without hyperbole that the police have been behaving as if they were the servants of a dictatorship.

Two consequences follow. First, every journalist, broadcaster and campaigner dealing with sensitive information must assume the police are spying on them. They should not endanger sources by using traceable phones and email addresses. Second, the Home Secretary, police and intelligence services are asking for more surveillance powers. Once again they are promising that these powers will only be used against potential terrorists. Journalists know this is a lie. But will they act on what they know? Will right-wing papers, in particular, abandon their dogged support for the state and say what they have learned from harsh experience: you cannot trust the British police?

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