A public interest?

In January 2012, my client Graham Dudman, the former editor of The Sun, had his house searched, his passport seized, and was subsequently arrested in relation to the Metropolitan Police's Operation Elveden, which centred on allegations
of inappropriate payments
to officials.

Dudman was charged with four counts of conspiring to commit misconduct in public office for making and approving payments to officials in return
for news stories. His first trial at Kingston Crown Court ended with him cleared of two counts, and the jury hung on the remaining two charges. Prosecuting counsel Oliver Glasgow told the court that the crown would be seeking a retrial.

Last month, the prosecution formally acquitted Dudman at the Old Bailey after a Crown Prosecution Service (CPS) review of all Operation Elveden cases concluded it was no longer in the public interest to continue his prosecution. The crown announced it was no longer offering any evidence against Dudman and judge Richard Marks QC formally entered two verdicts of not guilty.

Investigative journalism

The vast amounts of public money and huge policing resources dedicated to
bringing this case to trial raise considerable questions about how the case was conducted, how we expect the press to operate, and whether, ultimately, this prosecution was in the public interest.

During a 30-year career in journalism, Dudman had a record of breaking news. Many of his stories were the result of investigative journalism and, most importantly, were in the public interest. His investigation into security lapses at Heathrow after the Lockerbie bombing triggered new safety rules at all UK airports.

Every story the police
accused Dudman of paying
for or approving payment for was true and in the public interest. They included the revelation that the police family liaison officer in the Holly Wells and Jessica Chapman murder case had been arrested for downloading indecent images of children - for which he was later jailed - and the prison suicide of a convicted killer.

It isn't a surprise to anyone that journalists have key contacts whom they get to know well and rely upon to
help them build or corroborate a story. Similarly, it is known
that many investigative reporters pay some sources
for information. What has been less clear is who, from a legal standpoint, should and should not receive payment.

Legal definition

It is telling that until recently, the media law 'bible' Essential Law for Journalists did not cover the issue of payment, let alone what was or was not permissible under law. It was this lack of knowledge of a law dating back to 1906 that was a reoccurring theme through, not only Dudman's case, but all other prosecutions arising out of Operation Elveden.

The definition of who constitutes a public official, which has become clearer
for everyone as a result of the Elveden cases, will be regarded as basic knowledge for all journalists in the future. Updated guidance means
there will now be no grey
area for misunderstanding
or interpretation.

One unusual aspect of this case was the considerable
delay in bringing the case to
trial. My client was on bail for
19 months before he was charged and endured a total of 1,176 days from his arrest to the CPS announcement that they had abandoned his prosecution.

In my view, the police need
to be as decisive about whether or not to prosecute in cases like these as they would in any other criminal case. The failure to do this is perhaps symptomatic of
the lack of a conclusive legal definition of exactly what is
the public interest.

What is clear is that the press will operate differently as a result of Operation Elveden. I would expect news organisations to update their internal training, policies, and procedures around conduct and payment.

Some journalists may think twice about using certain individuals to help verify
stories. However, it would be
a real tragedy if, as a result of Operation Elveden, we saw a more cautious press unable to uncover stories of corruption
or wrongdoing in our public institutions. SJ

Mark Abbott is a criminal defence lawyer and partner at Blaser Mills