The Thunderer

In February the Director of Public Prosecutions, Keir Starmer, said he’d soon publish guidance on how the CPS determined whether to prosecute a journalist for actions carried out while doing their job.

Yesterday the CPS published those guidelines, which don’t change the law but reflect the approach currently taken. These are interim guidelines — formal guidelines will be issued later this year after consultation.

There are three parts to deciding whether to prosecute. The first is determining the public interest in the journalist’s actions. Examples in the guidelines include:

• Conduct which is capable of disclosing that a criminal offence has been committed, is being committed, or is likely to be committed
• Conduct which is capable of disclosing that a person has failed, is failing, or is likely to fail to comply with any legal obligation to which they are subject
• Conduct which is capable of disclosing that a miscarriage of justice has occurred, is occurring, or is likely to occur
• Conduct which is capable of raising or contributing to an important matter of public debate
• Conduct which is capable of disclosing that anything falling within any one of the above is being, or is likely to be, deliberately concealed

The second is deciding the criminality of those actions, which considers:

• The impact on the victims of the conduct in question, including the consequences for the victims
• Whether the victim was under 18 or in a vulnerable position
• The overall loss and damage caused by the conduct in question
• Whether the conduct was repeated or likely to continue
• Whether there was any element of corruption in the conduct in question
• Whether the conduct in question included the use of threats, harassment or intimidation
• The impact on any course of justice, for example whether a criminal investigation or proceedings may have been put in jeopardy
• The motivation of the suspect in so far as it can be ascertained (examples might range from malice or financial gain at one extreme to a belief that the conduct would be in the public interest at the other)
• Whether the public interest in question could equally well have been served by some lawful means

The third is balancing the public interest served and the criminality of the actions.

Although these don’t change the  It’s interesting that the ‘public interest’ part of the guidelines doesn’t include anything regarding someone’s private life – it seems narrower than the PCC’s definition, which includes actions that could cause the public to be misled (e.g. about the state of someone’s marriage).

Even if the CPS does decide to prosecute, in some laws there is a public interest defence available. This doesn’t apply to all laws – for example, the Bribery Act has no such defence.

Over the last few days I’ve been doing some Freedom of Information work. One of those big, country-wide ones that involves a huge numbers of emails and a big old spreadsheet.

There’s been a lot of talk recently about FOIs, about fishing expeditions and pressure on public bodies. One fairly common suggestion has been to charge for requests, to stop daft or baseless ones that just create work for organisations.

That idea concerns me. I’ve sent off about 200 FOIs recently. We don’t know exactly what we’ll get back. If you charged, say, £25 (as Birmingham City Council has suggested) for each of these, that’s £5,000. There’s no way we could do that, and it would basically put an end to attempts to build up nationwide pictures of information held by local bodies.

We did a lot of research before sending the requests: we used the correct terminology and all the information should be quite easily retrievable (unless they’ve changed how they store information), and assuming we get responses we should have some interesting, useful information.

But blimey, even the sending the requests and getting acknowledgements hasn’t been easy.

This is nothing to do with individual FOI officers, who have all been helpful. That is, when I can get to them. This is the main problem. So, here’s a few things public bodies could do to make my life easier (and theirs, because I’ll be far less exasperated when I eventually get to them):

Have a link to Freedom of Information on your homepage

For a lot, this is at the bottom of the page. That’s fine. For others, it’s in a drop-down menu under ‘about us’. That’s alright. But for others you have to use the search function (which is usually horrible), or click on everything until you find it. That’s not a great start.

Give me a way to make the request

Seriously, this should be obvious. But some bodies have a nice page explaining what FOI is, giving a link to the ICO, etc without telling me how I can actually make a request to them. That’s infuriating. It’s worse when you only give a postal address, because it suggests you’ve thought about it and decided you don’t need an email address. Request forms are fine, but they go through to an inbox – please give the address of the inbox, because I’ve got 200 of these to do!

Give me a named person and their phone number

This is for chasing up acknowledgements. If I’ve not had an acknowledgement, I don’t want to send another email, because my first one wasn’t answered! And please, please, please have a voicemail. There’s nothing more dispiriting than having a phone ring and ring and ring and you can’t even leave a message.

But if you can’t do that, then please at least…

Tell your switchboard who the FOI officer is

“Hi, can you put me through to your Freedom of Information Officer please?”

“Freedom of what?”

“Freedom of information”

“Is that Data Protection?”

“No, Freedom of Information”

“Access to medical records?”

“No, Freedom of Information”

“I’m going to put you through to Communications”

*headdesk*

There are some other things that would be useful, like each body having an email address that’s FOI@organisationname.relevantdomain.uk. But maybe that’s me being greedy. The points above, though, shouldn’t be too difficult; it would be really nice to see them put into practice…

Today’s Sunday Times splash reveals that the Conservative Party treasurer Peter Cruddas offered access to David Cameron and George Osborne for a donation of £200,000.

The Conservative Party website already offers membership of the Leader’s Group for £50,000 a year, which includes attending events with the Prime Minister and senior Conservatives.

But Cruddas suggested that the “Premier League figure” of £200-250k would also let donors influence policy: “If you’re unhappy about something, we will listen to you and put it into the policy committee at number 10 – we feed all feedback to the policy committee,” he told undercover reporters.

Analysis of records kept by the Electoral Commission show that since the 2010 General Election seven individuals have made single donations worth more than £200,000 to the Conservative Party:

• On June 17 2010 City financier Michael Farmer donated £258,500.
• On June 30 2010 Mark Bamford gave £250,000. Bamford works for the JCB Group, and JCB Research also donated £750,000 on June 1 2010.
• On September 16 2010 David Rowland donated £1,065,966.52. This was shortly after he had been named as – and then rejected the position of – Conservative Party treasurer.
• On September 20 2010 Jean Parmer donated £200,000. Seems she’s a former Councillor in Finchley (her donation was received by the Finchley and Golders Green branch of the Party).
• On October 5 2010 Conservative peer Michael Bishop donated £335,000.
• On November 22 2010 May Makhzoumi donated £300,000. Makhzoumi’s husband, Fouad, is a former arms dealer who is now a politician in Lebanon.
• On August 1 2011 Peter Cruddas himself donated £258,500.

There’s nothing illegal about donations buying access, and Cruddas could have been exaggerating. But if Cruddas is right, all these individuals have, through sheer wealth, had their ideas passed to number 10’s policy committee. That’s some clout.

Still, after this I’m sure Peter Cruddas got his meeting with Cameron…

(I’m intrigued as to why both Peter Cruddas and Michael Farmer donated the same quite specific amount. Any suggestions?)

There have been a couple of different ways I’ve seen recently where people have tried to think about how best to support investigative journalism outside of the traditional ‘subsidise it with sales/ad revenue from the rest of the product’ model.

The pot of gold

The first involves finding money from some outside source, then distributing it to reporters or organisations doing investigative journalism. This could be philanthropy, or some other way of raising funds. Here are a few ways it’s been suggested that could be done:

• The House of Lords Communications Committee suggested fines could be distributed to investigative journalism (something I’ve looked a bit at here).
• Michelle Stanistreet, NUJ general secretary, wants executive pay cuts to fund investigative journalism (a nice thought, but probably very unlikely to happen).
• The Co-ordinating Committee for Media Reform suggests levies on news aggregators, search engine and social media advertising.
• Encourage charitable giving to journalism by reforming charity law.

There are a few problems with these, not least that the amounts raised might be quite variable, particularly in the case of using fines. Some of them require significant legal or cultural changes, which may be difficult or impossible to implement in practice. There are questions of oversight, and of how the money would be distributed. They also represent a sort of admission that investigative journalism can’t be sustained through the market alone.

Still, having said all that, these ideas could all bolster investigative journalism, even if only to ‘top it up’. And if investigative journalism can’t be guaranteed by the market, and its importance to society is so great that we need to ensure it occurs in some form, they could be the only way to keep it going.

Business models

The other option is to try to find a business model that supports investigative journalism. There are still plenty of publications that do make a profit, and some of those (Private Eye, some B2B magazines) undertake investigations, and ExaroNews is a recent new attempt to do just this. 

You don’t need a huge profit margin to do investigative journalism – I know of at least one study that found no relation between the financial health of a news organisation and its willingness to investigate (in fact, struggling organisations sometimes did more investigations to try to improve their reputation). This obviously has a limit – if a newsroom’s so cash-strapped that its reporters have to sit recycling agency stories then you’re not going to get investigative work – but it does suggest a newsroom’s culture is also important.

Away from this, one interesting new effort is Matter. The idea here is that you pay a small amount to read a piece of long-form, investigative journalism (similar to Kindle Singles).

This sounds like it depends on freelancers (not necessarily a bad thing, but even the costs of determining whether there’s a story can be high), and obviously only certain types of investigations would work. I can’t see, for example, an undercover sting being successful here in print. In this video Felix Salmon argues with someone researching online business models about whether it’s achievable – worth watching.

They’ve started well. It would presumably have similar costs in the UK but a smaller potential market, so even if it’s successful in the States I wonder whether it’s transferable here. Not everyone’s certain this particular idea has merit – but it’s part of a trend towards trying to publish individual stories (rather than supporting an organisation) shown by Byliner and Atavist.

Whether any of these will work in practice is an open question. That’s only going to be answered by, well, trying them. That’ll be messy and uncertain. There’s no ‘silver bullet’ here, and anything that could work depends on a lot of factors: the will of policy-makers, the will of philanthropists, the will of journalists to take a risk on a new venture, the will of the public to pay for news (whether individual stories or a bigger product), and the will of journalists, editors, and media owners to support investigative journalism.

On Wednesday I interviewed Lord Inglewood, chair of the House of Lords Communications Committee. The piece is now up on Journalism.co.uk:

The chair of the House of Lords communications committee has warned that the debate on the future of journalism must not be “hijacked” by a focus on the past.

Lord Inglewood told Journalism.co.uk that while some “terrible things” have occurred, politicians must not lose sight of the “awful lot of good” that the media does.

You can read the full article here

Guardian journalist Nick Davies’ phonehacking investigation won him the Paul Foot Award on Tuesday.

Davies beat off competition from publications including the Sunday Times and Chemist and Druggist magazine.

The Press Gazette has a full report, and the Bureau of Investigative Journalism has spoken to some of the shortlisted journalists.

Even before Sue Akers told the Leveson inquiry yesterday that there was a “culture of illegal payments” at the Sun that had seen public officials being on ‘retainers’ for the newspaper, the question of paying sources was in the air.

David Hencke, formerly of the Guardian and now at ExaroNews, was first, responding to Trevor Kavanagh’s even-more-extraordinary-in-hindsight column that condemned the police “witch-hunt”:

Where I do quarrel with [Kavanagh] is his implication that somehow allegations of bribing police officers ( which I gather is the reason for all this) is an essential tool of journalism to expose scandals to save Britain from turning into a corrupt cesspit.

It isn’t. If you think so it sends out all the wrong messages and puts journalism in the dock – and encourages a culture where money is the main motive and moral outrage irrelevant.

He then gave examples from his own career:

[N]obody needed paying to expose the ” cash for questions” scandal in the 1990s nor that Peter Mandelson had taken an undeclared £373,000 home loan from a  fellow minister.

Nor did any money change hands in the latest scandal of Ed Lester, the student loans company chief, and his tax affairs – just one  morally outraged source, a few beers, and a well targeted freedom of information request.

Another veteran reporter, Andrew Jennings, has also criticised payment of sources on OpenDemocracy:

It’s a media myth created in part by lazy reporters that offends the overwhelming majority of us who get good stories through experience, patience and practicing the journalist’s craft under good supervision.

…

The journos I’ve worked with over the past 45 years have had our share of great stories – and there was never a price on them. Granada would never have allowed bungs and neither would the three Panorama editors I’ve worked for in recent years. Anyway, it wasn’t necessary. Effective reporters engage with conscientious sources and serve the public interest without cash or chequebook.

And this morning Roy Greenslade also comes out against it:

Investigative journalism will not die without money changing hands. In the end, as yesterday’s evidence in front of the Leveson inquiry implied, payments by journalists lead to a corruption of journalism itself.

There have been a few dissenting voices (well, Kelvin MacKenzie twice) but the weight of opinion’s fairly clear.

I can only think of one major investigation in recent years where we know money changed hands: MPs’ expenses. But it raises an interesting question. The original source was a public official. Presumably paying for the information was the only way the information – undoubtedly in the public interest – would have been made public.

(Just a little deliciously, both the Times and the Sun turned down the chance to buy the expenses files before the Telegraph got them.)

It’s one thing to be paid for routinely passing tidbits of information on to a journalist, especially if that information is just a tip-off about something that would later be made public anyway (at a police press conference or a trial, for example). That’s low-level, not really defensible but also not necessarily harmful in itself – although it points to a very disturbing culture, and certainly shouldn’t happen.

It’s another to be paid for passing on private information that isn’t in the public interest. I’m thinking here of medical files or benefits records, that sort of thing.

But it’s quite another to pay someone as a one-off for information that’s definitely in the public interest. Maybe most sources, with the right coaxing, can be convinced to spit it out without having to cough up. But in those rare, rare cases when it’s the only way and that source is vital to the story, I think it can be justified.

I’d (genuinely!) like to know what David Hencke, Andrew Jennings, and Roy Greenslade would have done if the expenses disc had been within their grasp.

Update

Nick Davies at Leveson today touched on this, according to the FT’s media correspondent:

The nominees for the 2011 Paul Foot Award have been announced, including journalists from local, national, and specialist press.

Nick Davies and the Sunday Times Insight team are among those shortlisted for the prize, which honours “dogged pursuit of difficult stories”. It was set up by the Guardian and Private Eye in memory of Paul Foot, who died in 2004.

As well as Davies’ work on phonehacking and Insight’s reporting of corruption in FIFA, Jon Austin from the Basildon Echo is nominated for his coverage of the Dale Farm evictions.

The Independent’s Jerome Taylor is chosen for forcing the Court of Protection to allow the media to attend its private hearings, while Mark Townsend from the Observer is recognised for his articles on the exploitation of women and children through trafficking.

Katherine Quarmby makes the shortlist for her investigation into disability hate crime, as does David Rose for his stories on how British aid to India is spent.

The only B2B journalist nominated is Zoe Smeaton, who while at Chemist and Druggist Magazine discovered mistakes in government payments to community pharmacists.

Judges said the shortlisted stories were “exposés that demonstrate how investigative journalism in Britain is still alive and kicking and, today more than ever perhaps, in need of support”.

Summaries of the shortlisted stories are here. The winner of the £5,000 prize will be announced next week, with all runners-up receiving £1,000.

Last week the House of Lords recommended that a fund should be set up to support investigative journalism.

It would collect and redistribute fines for breaches of Ofcom’s Broadcasting Code and, if the new PCC can fine, the Editor’s Code of Conduct – a seemingly neat way of charging the bad to support the good.

Not everyone liked the idea, but it’s worth considering. The question is, how much will it raise?

Ofcom’s website is a bit of a maze, but the fines imposed this financial year so far are here, while last year’s are here.

This year Ofcom’s collected £3,313,120; last year it was £449,750. That’s quite a difference, and would mean the amount available would fluctuate massively, making it hard for any organisation to plan ahead if they relied on the fund.

But if you only take the sanctions relating to broadcasting (as the Lords suggest), it looks a bit different. Of that £3m+ levied this year, only £276,000 was for broadcasters – massive fines against TalkTalk and Tiscali make up the bulk of that bigger figure. Last year the fines for broadcasting came to £399,750.

That’s less of a difference – although also a smaller available pot. How much would a few hundred thousand pounds help to safeguard investigative journalism’s future? The Bureau of Investigative Journalism’s submission to the Lords’ inquiry said it costs about £1.5m a year to run, while Channel 4′s investigative journalism training scheme costs about £250k over two years. In both cases, the £400k collected last year would make a sizeable difference.

It depends a bit, I think, on how thinly that money is spread. That £400k could ‘sponsor’ maybe 20 young journalists to work on projects or investigations more generally, or considerably fewer more experienced hacks. Or it could be divided among organisations, in which case I’d imagine it’d need to be fewer, larger amounts to be useful.

This doesn’t include any fines a new PCC could levy, but I wouldn’t at all like to speculate how much that might raise. Still, while this fund won’t be any sort of cure-all, the amounts involved and what they could do aren’t as insignificant as I’d first thought.