JOURNALISTS' OWN SECRETS
sympathy with journalists who obstruct the law
ORGANISATIONS which need secrecy to carry out their duties are finding life increasingly difficult. The spirit of the age is opposed to secrecy. The Government's armour wherein it trusted — the old Official Secrets Act, with its devastating catch-all Section Two — is now rusty, since juries will not convict in marginal cases. The former Lord Chancellor, Lord Hav- ers, spent eight years feebly trying to devise an alternative form of words, and failed. Now Sir Patrick Mayhew, the pre- sent Attorney General, is going to have a go. I wish him luck. The present mess is dangerous, inviting all the most irrespon- sible elements in the country, such as BBC producers, to achieve notoriety by hurting national interests. Only the Soviet Union, terrorist regimes like Khomeini's and Gaddafi's, and terrorist gangs generally, stand to profit. But the Government is not the only institution which is losing its security trous- ers. The media, so anxious to strip minis- ters of their garments, is beginning to look a little naked too. The journalistic equiva- lent of the Official Secrets Act is the Protection of Sources Act, which enables reporters and editors to defend secrecy even in a court of law on the grounds that the confidence they guarantee to their informers must be absolute. Of course there is no Act as such. The understanding is informal. Journalists have never enjoyed the degree of privilege accorded to priests and doctors. Moreover, there is often humbug in journalists' claims to the right of secrecy: they want to 'protect their sources' for the good and simple reason that such sources do not exist — the story has been invented.
All the same, some kind of protection is necessary and has usually been accorded. Then, in 1981, the Contempt of Court Act put the rights of the media on a formal basis, though, as Section 10 reads: No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of in- formation contained in a publication for which he is responsible, unless it be estab- lished to the satisfaction of the court that disclosure is necessary in the interests of
justice or national security or for the preven- tion of disorder or crime.
The issue, then, is whether protection of sources conflicts with the course of justice. In 1985-6 Jeremy Warner, a financial journalist, published articles indicating knowledge of insider trading. At the end of 1986, under the new and draconian Finan- cial Services Act, Department of Trade inspectors were appointed to investigate evidence of the insider trading in takeover bids. They wished to question. Warner about his sources. He refused to identify them. They then reported him, under Section 178 of the 1986 Act, to the High Court, which has power to punish a recal- citrant non-informant 'as if he had been guilty of contempt of court'. In due course the case reached the House of Lords, who decided last week in favour of the inspec- tors. In effect, the Lords ruled that where the 'prevention of crime' in its broader sense required disclosure, and the inves- tigative agents plausibly certified to this effect, journalistic privilege did not justify silence. However, one of them, Lord Oliver, said he had some misgivings about the ruling and added: 'It should not be thought that the protection afforded by the Act [i.e., the 1981 Act] can be overcome merely by the ritualistic assertion on affida- vit that particular information is required for the prevention of crime.'
That was well said and the courts will take note of it. Clearly journalists cannot be expected to reveal everything they know merely to suit the convenience of the police or any other law-enforcement agen- cy, who are often idle, unimaginative or incompetent. The protection of the 1981 Act should fail only when investigative authority can show that journalistic disclo- sure is vital to the interests of justice. But, `Why do we always have the same thing for Christmas dinner?' subject to this qualification, I see no reason to quarrel with the Lords' judgment, and some of the newspaper reaction to it seems excessive. The Independent in particular, having no coherent policy on general poli- tical matters, makes a fetish of media rights by way of substitute, and printed a para- noid leader entitled 'The steadily shrinking boundaries of press freedom'. This seems to me nonsense. I have been in journalism for over 35 years and during that time press freedom in this country has, on balance, steadily expanded, to the point where it is in danger of threatening both the defence (and so the liberties) of Britain and the needful privacy of its inhabitants.
The notion that the media is more heavily censored in Britain than any other Western country is now regularly put forward by left-wing practitioners, espe- cially those who call themselves 'investiga- tive journalists'. But these are people who approach each subject with a fixed and tendentious conclusion and see journalism as the process of finding, bending or inventing evidence to prove it. Their idea of press freedom is the right to invade Britain's most secret defence establish- ments and publish anything they find there, or to charge into the Prime Minis- ter's bedroom and examine her under- clothes. The truth is they want to transform journalism from a method of informing the public into an instrument of political change.
It must never be forgotten that journal- ism is primarily a commercial activity. It may have an altruistic side, but the chief aim of editors is to raise circulation, the chief aim of managements is to make profits, and the chief aim of individual journalists is to enhance their own profes- sional reputations and so their earning- power. At the same time, a journalist is a citizen first and a professional man second. His primary loyalty must be to the country and the society of which he is part, and so his first duty must be to obey the law and help to enforce it. That is why, for instance, members of the media should normally co-operate with the police in their enquiries, as every other citizen is expected to do. If the police, investigating a riot, need to see still photos or tapes or films, in order to identify, charge and convict offen- ders, then newspapers and television com- panies ought to make the material avail- able. Naturally, as with Board of Trade inspectors, the police must make out their case and provide reasonable evidence that the help of the media is necessary.
But once this is done, editors and televi- sion executives should cheerfully submit, and if they refuse the courts should punish them. It can never be in the long-term interests of the media to obstruct, and be seen to obstruct, the course of justice. God knows, we are unpopular enough already — never more so. Let us take a collective New Year resolution to show the public that we are firmly on the side of the law.
Previous page
