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Manchester Electronic Media. He has trained editors and journalists from all the UK’s key media groups:    Newspapers: Archant. Newsquest. He has done freelance work for all the national daily and Sunday papers and for magazines. Cleland is a member of the Society of Editors and the Chartered Institute of Journalists. He worked on an expose of an alleged ticket scam at Chelsea FC and investigated a fraud by a London landlord which resulted in one man going to prison. The Local Radio Company and United Utilities. He is a regular legal blogger for the Press Gazette. Essex Independent Newspapers. He has worked on investigative assignments for the Sunday Mirror. local radio and television. the UK’s largest media and communications e-college. Trinity Mirror. Janes Information Group. GPSJ. Another investigation into corruption in the Haringey Emergency Corps also resulted in another man going to prison. Veterinary Business Development and the Consumers’ Association. Northcliffe. His clients include many Footsie 100 and Fortune 500 companies. He now trains investigative journalists from some of the UK´s leading regional papers. GMG and Johnston Press. and is a member of the Chartered Institute of Journalists Professional Practice Board. He is recognised as one of the UK’s leading media and communications trainers. Radio stations: GMG Radio and TLRC. 2|Investigative journalism under threat? . His 25-year investigation and campaign to free two men wrongly convicted of a double murder was nationally acclaimed and was featured in an ITV documentary and on BBC 2's Rough Justice. the News of the World and the regional press.An e-book by Cleland Thom Cleland Thom is director of CTJT. governmental and non-profit institutions. as well as renowned media. TNT magazine. educational. Since 2003 he has been legal adviser to the Manchester Evening News. Magazines: RBI. TMG.

They breathed dark threats about ‘statutory regulation’. the vast majority of which operates legally and ethically. Most journalists in this country work for local papers and business / trade magazines. and is seizing the opportunity with relish. or editors from breaking the law if they choose to. Stricter regulation will do nothing to stop journalists. But there isn’t. Lord Justice Leveson’s inquiry assumes there is a problem. 3|Investigative journalism under threat? . too. And now the party of freedom is at it again. But I suspect Parliament has been waiting to take revenge on the media since the expenses scandal in 2010. the same as they do in every other profession. And to leave the police and the courts to sort out the criminals. And that’s bad for democracy. and probably wouldn’t know how to hack a phone if they tried. But maybe it’s not too late to for the constitutional right to a free press in the UK. As for Mr Cameron – I suspect his own Watergate may only just be beginning.1: Why we don’t need the Leveson inquiry David Cameron’s decision to set up the Leveson inquiry into the ‘culture. They established the Calcutt inquiry which birthed press regulation in this country. It will just shackle the media even more than it is already. It’s too late to stop the Leveson juggernaut. Then. They uphold the law and follow strict ethical guidelines every day. Yet the allegedly criminal actions and disgusting behaviour of one organisation and its staff will undoubtedly result in stricter press regulation for everybody. Of course. Ours should be. He used the suspected criminal behaviour of journalists at the News of the World as a reason to examine the integrity of the entire media. It couldn’t happen in America. It’s worrying that a Prime Minister and a judge are in a position to restrict our free press. we’ve been here before with the Tories in 1990. suggested imposing VAT on newspapers. practices and ethics of the press’ was a clever move. Their free press is protected from government interference by their constitution.

is that the Leveson inquiry will see the issues of press behaviour in black-and-white tabloid terms. who aren’t worthy of the title. But the treatment of the Dowler and McCann families is beyond belief and cannot be justified or defended. It is a shocking indictment on the editors concerned. It later emerges that the journalist’s actions potentially saved lives. He cannot gather evidence any other way. and know the ‘dark arts’. The journalist hands his information to the police. the journalist hacks the suspect’s phone. though. Let’s suppose a tabloid journalist is investigating an individual he believes is a potential terrorist. My worry.2: Red top behaviour is not always black and white Some of the evidence of journalists’ behaviour given at the Leveson inquiry has had made me shudder. They clearly lack judgement and integrity I have limited sympathy for the McCanns. he’d probably be prosecuted. As an essential part of his investigation. I’ve worked for the Sunday red -tops. and sacked. He’s a hero. The buck stops with them. If they had done their jobs properly. 4|Investigative journalism under threat? . But the journalist broke the law – phone hacking is illegal! So should he be prosecuted? Or given an award for outstanding journalism? In the current climate. we would not need a PCC. He has facts that may point to a possible Norway-style attack by a far right individual in the UK. who started a global media firestorm and should not have been surprised when that’s exactly what they got. It’s a last resort. The voicemails indicate that the suspect could be planning an attack. or a Leveson inquiry. who arrest the man and charge him with offences under the Prevention of Terrorism Act. I’m a tabloid hack and was reared in a ‘publish and be damned’ culture. There are many shades of grey that may be missed.

and I could not have obtained information any other way. And I used a range of methods. press is muzzled. Recent governments have introduced legislation that means journalists can be threatened with prosecution for a whole range of offences. completely unafraid to challenge authority … but one that. Now. I have no doubt that I would have hacked them. 5|Investigative journalism under threat? . who broke the law with no thought of serving the public interest. Many press photographers. on occasions. the only way to dig out information on law breakers is to sail close to the legal boundaries – and sometimes step over them. David Cameron has already pre-empted the Leveson inquiry’s findings by saying he wants a free and vibrant media. who have been harassed. I conducted two investigations that put people in prison. I have done. But here’s a prediction. When I was a journalist working for the national and local media. to get the evidence I needed. And that would be a tragedy for the freedom of the press and democracy. I could not have published the articles without it. I’m totally against the reckless actions of News of the World reporters. But there’s one heck of a lot of law the media can break these days. So when Mirror journalist Ryan Parry exposed lax security at Buckingham Palace. If mobile phones had existed in those days. It would appear they betrayed their profession by hacking phones as a fishing expedition rather than to confirm information they already had. Parry wasn’t prosecuted. Like you. he broke at least one law.And that bodes the question: should journalists be prosecuted for breaking the law if they act in the public interest and expose a greater wrong? Investigative journalists have always sailed close to the wind. So already. And the point is – it wouldn’t happen again now. some ethically questionable if not illegal. one for child abuse and one for a fraud against vulnerable people. But he acted in the public interest and did a lot of good – a subsequent Security Commission report said there were lessons to be learned from the incident. although it was considered. “operates within the law”. tellingly. But they often feel a strong sense of duty to the public they serve and the need to hold people to account. will confirm this. Too risky. both legally and ethically. intimidated and beaten by the police. I bet he would be if the same thing happened again now. And sadly. Most journalists worth their salt have done the same. no journalist wants to break the law. The Leveson inquiry will call for – and get – a new regime that shackles journalists to the extent that they will never dare step over the legal line to expose issues in the public interest. though not to unearth the garbage that the NOTW journalists discovered.

I believe Leveson will draw that day a lot closer.I’ve been predicting for seven years that the day will dawn when journalists are routinely jailed. 6|Investigative journalism under threat? .

to omit key facts from news stories because they’re ‘private’. What went wrong? Our industry only has itself to blame. We should have challenged the government to bring in a constitutional right to a free press. you’ve never worked for the free press. and to ask for people’s consent before publishing just about anything. When journalists were encouraged to ‘publish and be damned’ and the rich. rather than be allowed to hide their murky activities behind super-injunctions. Had we stood our ground. It may also be routine for you to kow-tow to the police. It didn’t used to be like that. Note – the brief was not to see what measures were needed. and rejected the Calcutt recommendations. and probably part of your job contract. There was a time – pre-1991 – when the UK really had a free press. head teachers and spin doctors who tell you what you can and can’t print and how you should cover anything from a road accident to a school nativity play. Our industry duly obeyed. the powerful and the famous were called to account. In 1989. the Mrs Thatcher’s Tory government set up the Calcutt Inquiry to … ‘consider what measures (whether legislative or otherwise) are needed to give further protection to individual privacy from the activities of the press and improve recourse against the press for the individual citizen’. to pixelate faces in photos. they would have backed down. 7|Investigative journalism under threat? . You may have been threatened with arrest by police who don’t like the press taking photos. How foolish. We should have used ‘vigour and great speed’ to tell the government what to do with their threats.3: Hang on to those remaining freedoms If you’re a journalist working in the UK and you’re under 35. What you’ve experienced are the remnants of freedoms that have been tragically eroded – or given away would be more accurate – over the past 20 years. For you. The assumption was that they were. it’s routine. Calcutt reported in 1990 and recommended the establishment of the Press Complaints Commission – or else. We are still paying the price for that foolishness. We should have called their bluff. showing what the PCC now describes as ‘vigour and great speed’.

the ECHR has been operating alongside the PCC since 2000. will lead to it not appearing at all. And perhaps our good friend Major hoped that a new system of press regulation would ensure that his fouryear affair with Edwina Currie never made the headlines. In fact it still states that it has ‘no formal powers of prior restraint’. TV celebrities and politicians want today.’ That must delight politicians and others. 8|Investigative journalism under threat? . who obviously didn’t understand that a free press was part of our national heritage. And under the convention. who have something to hide! Since 1991. and initiate investigations into press behaviour. like Ryan Giggs. the then Secretary of State for National Heritage. even when there has been no complaint. Both men had every reason to see a ‘regulated’ the media – the same as footballers. It did – though it probably wouldn’t have done now. It’s not an unconditional freedom. But over the years it has nonetheless awarded itself any number of ‘informal powers’. the key government figures who pressed hard for the establishment of the PCC were the Prime Minister John Major. In fact it boasts that it can … ‘stop media harassment in its tracks. and now routinely exercises a subtle kind of prior restraint on newspapers and magazines. To make matters worse. It only provides the general freedom of expression. despite the fact that courts only used such powers on the media only in the most exceptional circumstances. the right to free speech is not sacrosanct – it can be overturned by the individual’s right to privacy. had little involvement in pre-publication issues. The PCC was set up in 1991. and David Mellor. the PCC code has been revised around30 times – and each change has taken further power away from the media. History now informs us that both Major and Mellor had every reason to oppose a free press.’ So much for having no powers of prior restraint! The PCC can also issue advisories and desist notices when it believes journalists are harassing people.Interestingly. The convention gives individuals the right to privacy. In fact the commission proudly claims on its website that ‘the discussions we have [with editors] will affect the way the story is handled by the publication and in some cases. Mellor was exposed by the media for having an affair with Antonia de Sancha in 1992 and resigned in a major sex scandal that he admitted was ‘a point of weakness’ for his government. and at that time. but does not specifically guarantee a free press.

But will Generation Latte rise to the challenge? (I use the term because many journalists under 35 have sadly never stirred much more than their Starbucks). The result is the mess we have now – super-injunctions being used to censor the press and keep the public in the dark. There. they laughed at us when we tried to impose our style of censorship on Californiabased Twitter. over in the USA. people like Max Moseley and Ryan Giggs would be laughed out of court. There is no doubt that the ECHR. It has a constitution right.’ This includes everything from newspapers to blogs – and of course. Twitter! If the UK still had a free press like this. Lovell v. 9|Investigative journalism under threat? . Journalists who attend my law training sessions will know I’ve been forecasting for several years that journalists would be routinely fined and jailed as privacy laws and other legislation grew stricter. But you do have the power to change things.Compare this to America. you won’t know what that’s like. under the First Amendment. and the courts threatening journalists with fines and imprisonment while telling our sovereign Parliament what it should and shouldn’t say. Meanwhile. if you’re under 35. ably assisted by the PCC. Who can blame them? Their press is still free. to remain so. City of Griffin. In a famous test case. Chief Justice Hughes defined the press as … ‘every sort of publication which affords a vehicle of information and opinion. the freedom of the press is specifically protected by the First Amendment to the Constitution. Sadly. has done more to erode a free press in this country than anything else in our nation’s history.

The two elements of Mr Cameron’s statement contradict one another. 6. 10 | I n v e s t i g a t i v e j o u r n a l i s m u n d e r t h r e a t ? . Financial Services Authority inspectors can do the same as 4) above. let’s look at a relatively new list of offences for which journalists can be jailed. The Pensions Act 2004 can be used by the Pensions Regulator to prosecute a journalist who refuses to reveal their source of information that relates to a pensions investigation. The Coroners and Justice Act 2009 means that a crime reporter could be face jail if he tells someone that an individual is helping the police with their inquiries – even if nothing is published.’ Journalists who refuse can be prosecuted and jailed. It’s an illusion to say we have a free and vibrant media when an avalanche of new legislation – mainly introduced by the Blair government – has made journalism the most legislated-against profession there is. 3. Yes. Department of Business. 5. Recent governments have introduced so many laws that curb journalists’ conduct. tellingly. “operates within the law”.4: Eight ways journalists can go to jail for doing their jobs David Cameron made a telling remark when he first gave details of Leveson inquiry into media conduct. 1. Innovation and Skills inspectors can summon a journalist to meet and assist officials. jailed. The restrictions build into a terrifying list. completely unafraid to challenge authority … but one that. The Serious Organised Crime and Police Act 2005 makes it an offence carrying a jail term of up to five years to disclose a new ID given by police to people like ‘super-grasses’. Firstly. If they refuse they can be fined. Now there’s around eight. The Serious Fraud Office can summon a journalist to answer questions or hand over information relating to an investigation. that it is difficult for the media to challenge authority legally. or jailed. and answer questions on matters ‘relevant to their inquiries. There only used to be one offence that could land a journalist in jail – contempt of court. Refusal to co-operate could lead to prosecution and jail. He said wanted a free and vibrant media. 4. 2.

8. Both offences carry the prospect of jail terms. So perhaps LJ Leveson needs to look at the above legislation and more listed below. They can also be prosecuted for refusing to hand information over once police get a court order. and ask himself whether a free and vibrant media is in fact possible with such draconian measures in place. Journalists can only report their views neutrally. or condemn them. You’ll see that several of these laws even ride roughshod over the long-standing principle that a journalist should not be forced reveal his or her sources other than under section 10 of the Contempt of Court Act 1981. the media cannot freely report interviews that glorify the commission or preparation of acts of terrorism.7. Penalties include prison. and not associate themselves or their publisher with them. Journalists can also commit an offence if they collect or record information that could be useful to someone preparing or committing an act of terrorism. 11 | I n v e s t i g a t i v e j o u r n a l i s m u n d e r t h r e a t ? . Under the Prevention of Terrorism Act.

When David Cameron refers to a ‘free and vibrant media. Photographers are also vulnerable under the Public Order Act 1986. harassment that is intended to persuade someone to do something he is not obliged to do. Here’s some other recent legislation that is already being used to harass and potentially criminalise photographers and reporters: 1. or even one of their neighbours. A photographer could be arrested without a warrant and could have his property searched. Parliament and the courts have made it almost impossible for journalists to operate effectively without falling foul of legislation. 3. as with many other offences – only that the conduct occurred in circumstances where a reasonable person would have realised that harassment would result.5: More laws that can criminalise journalists As I said above. alarm or distress’. if they use what the police believe is ‘threatening. The prosecution does not have to prove intent. He could be fined or jailed and vulnerable to a civil action for damages. 2. can claim that the presence of the press was causing them alarm or distress. The Serious Organised Crime and Police Act contains a new offence of ‘harassment intended to deter lawful activities’ – ie. abusive or insulting words of behaviour. The same act also gives police the power to order someone to leave the area around someone’s house. or to stop him from doing something he is legally entitled to do. or disorderly behaviour within the hearing or sight of a person likely to be caused harassment. he should realise that the second part of that statement makes the first part well-nigh impossible. 12 | I n v e s t i g a t i v e j o u r n a l i s m u n d e r t h r e a t ? . and not to return for up to three months. This measure can be used to prevent photographers ‘camping’ outside people’s homes and prevent a photographer from door-stepping someone – either they. Photographers are vulnerable here – but the action must have occurred at least twice. completely unafraid to challenge authority … but one that ‘operates within the law’. The Protection from Harassment Act 1997 says that a person must not pursue a course of conduct that amounts to harassment (alarming the person or causing them distress) of someone else and which he knows or ought to know amounts to harassment.

or argues with the policeman. 6. 5. The media has never faced such an onslaught of restrictive law and regulation in its history … or a police force that enthusiastically uses.com/gadgetlab/2008/04/videoclueless/ http://www. The Criminal Justice and Public Order Act 1994 also established a new offence of intentional harassment – using threatening. or has been. alarm or distress. Intelligence Services and police officers which is ‘likely to be useful to a person committing or preparing an act of terrorism’ will be an offence carrying a maximum jail term of 10 years. UK Intelligence Services. 8.co. This allows police to claim a search is necessary to find out if the images are part of ‘hostile terrorism reconnaissance. 9. if an officer suspects the photos are part of ‘hostile terrorism reconnaissance.4. Under the same act. Photographers / photojournalists can be stopped and searched by police using anti-terrorism legislation. and misuses. publishing or communicating information on members of the Armed Forces. too. The problem for the media is that officers do not have to suspect the photographer is a terrorist. If a photographer on public land persists in taking photos after a policeman tells him to stop. Section 76 of the Counter-Terrorism Act 2008 can make it a criminal offence to take photographs of police officers. 7.wired.com/british-journal-of-photography/news/1644048/jail-photographing-police There’s more legislation like this. a member of the Armed Forces. he can be arrested under the Police Act 1964 for obstructing an officer in the execution of his duty.guardian. a journalist can be prosecuted for eliciting. eliciting.uk/uk/2010/feb/21/photographer-films-anti-terror-arrest http://www. abusive or insulting behaviour.bjp-online. Police sometimes use the Highways Act 1980 to prevent ‘wilful obstruction of the free passage along the highway’ to arrest photographers who are ‘getting in the way’ at a demonstration or major incident. or a police officer – if the information could be useful to someone preparing or committing an act of terrorism. under the Terrorism Act 2000. The police have no powers to stop a photographer taking shots in a public place. the powers that Parliament 13 | I n v e s t i g a t i v e j o u r n a l i s m u n d e r t h r e a t ? . intending to cause a person harassment. But this hasn’t stopped them – and others – using the Prevention of Terrorism Act 2000 harass and intimidate photographers and journalists – see: http://www. Under s76. or publishing information about someone who is.

And of course. But I hope LJ Leveson also uses his inquiry to investigate why there is such a frightening range of legislation that inhibits good journalism.’ No need to ask for a summons any longer. 14 | I n v e s t i g a t i v e j o u r n a l i s m u n d e r t h r e a t ? . Their editors aren’t worthy of the name. It disgusts me.has given it. since SOCAP came into force. police have virtually unrestricted powers to make an arrest if they believe it is ‘necessary. I don’t defend what the NOTW reporters did.

whether the victims like it or not.6: Police stance on news is a cop-out Added to the Leveson Inquiry. The Islington Gazette. who keep the media well away from victims. we had Family Liaison officers. The position in Northumbria. gradually exercised greater control over police news. Together. in some regions. We need to see her report in the context of a disturbing decline in the information that journalists have received from the police over the past 20 years. we solved many crimes. and did enormous public good. Some of them flirted with me … and that was just the blokes. though occasionally turbulent. I had unrestricted access to the incident room in one murder investigation. Olde journalists like me used to deal with individual officers as a matter of routine – there wasn’t an alternative. in the mid-90s. 15 | I n v e s t i g a t i v e j o u r n a l i s m u n d e r t h r e a t ? . We worked in partnership on some stories. So now. It was a relationship that was mutually beneficial. Then. journalists are only told about crimes when police need media help. We sometimes even drank alcohol together! Shock! But only if they paid for it. of course. Alongside this. press officers. After that. place and details of the offence! Then came the Data Protection Act. which enabled the police to withhold just about anything they like from the media – often incorrectly and illegally. reported last year is by no means uncommon. Police press officers are a new-ish creation. time. we have Dame Elizabeth Filkin’s investigation into the relations between the police and the media. And now Filkin is suggesting we ‘regulate’ what little information we have left. Her advice to police officers not to … ‘flirt or drink alcohol with journalists’ belongs in the Richard Littejohn ‘You couldn’t make it up’ department. many forces – Hampshire in particular – began refusing the media details of traffic accident victims … a measure ably fought by the Portsmouth News. in north London went through a stage when they could only get crime information from the police if they told the police the date. I spent most Tuesday mornings having tea and a greasy fry-up in the Holloway police station canteen with everybody from the Chief Super to traffic wardens.

if she gets her way. not the government. will be something like a state-controlled police news feed. 16 | I n v e s t i g a t i v e j o u r n a l i s m u n d e r t h r e a t ? . And remember – the police are the servants of the public.The result.

These authorities can access numbers called. Sound familiar? Read this and this And this … I could go on. So did he. My Egyptian friend made a telling remark. to request journalists' phone records going back a year. and the Society of Editors believe it could be used to find out who a journalist has been speaking to. This caused me to ask the question: 'Will Egypt end up with our watered-down European freedoms?' It's been heart-breaking to hear about the number of journalists who have been killed or injured in the protests in Egypt. That couldn't happen here. where I mentioned that a new European Union directive on data retention enables 795 public bodies. Another restriction that’s been slipped in by the government. could it? Well. but many journalists. 17 | I n v e s t i g a t i v e j o u r n a l i s m u n d e r t h r e a t ? . take a look at this And this I also read that police in Egypt opened Time magazine photographer Yury Kozyrev's camera and confiscated her memory card. He had just read one of my law updates. and even the rough location of a mobile phone user when the call was made. 'In Egypt our phones are only tapped by the state security and the intelligence presidency.7: Do Egyptian journalists really want a free press like ours? I was chatting to an Egyptian journalist in 2011. I'm not saying that journalists in the UK are experiencing anything like the treatment being meted out in Egypt. The directive is aimed at combating terrorism. ranging from the police and the Food Standards Agency to local councils and the Charity Commission. He had been active in the Tahrir Square revolution and is now helping to establish a free press in a country where the media has been controlled by the state. But your phone records can be accessed by more than 700 organizations. Wow!!' I began to wonder who lived with the most restrictions. the times of calls.

And that journalists must fight to preserve what's left of our 'free' press. Sadly. Egyptians demanding European-style freedoms may only get the 2011. where you can't banter off-the-record without getting fired or criticise a prophet without getting death threats.But it does make you realise that there is. watered-down version. But people escaping from East Germany to the free west 30 years ago would have found the contrast far more distinct. This is even more important with Leveson likely to bring in even more restrictions on the media. certainly. 18 | I n v e s t i g a t i v e j o u r n a l i s m u n d e r t h r e a t ? . a very thin line between democracy and a police state like Egypt. Better than nothing. perhaps.

.. 5. There should be a disciplinary panel. CTJT | Forum House | Stirling Road | Chichester PO19 7DN | www. with the powers to strike them off for certain misconduct. administered by the Society of Editors. and required to abide by a code of practice based on the current Editors Code. A constitutional right to a free press should be introduced in a Bill of Rights that replaces the current ECHR.biz | cleland@ctjt. including failing to train and uphold high standards among their staff. But there is another way of dealing with this crisis.’ 4.8: The solution? LJ Leveson is already preparing us for the fact that press regulation is on the way. Reader complaints against the national press and B2C magazines should be dealt with by the courts. with the power to refer cases to the small claims track if mediation fails. It should be the first stage in the civil courts procedure. 1. ‘Of genuine concern to right-thinking people’. The PCC should be changed into an independent. 3. The Editor’s Code definition of Public interest should be broadened.ctjt. Legal aid should be introduced for libel and privacy actions that use the statutory fast track processes. to include a) subjects that are . 2. statutory mediation service for local and regional newspapers and B2B magazines. and b) articles that depend on the public interest defence must be … ‘published without malice.biz 19 | I n v e s t i g a t i v e j o u r n a l i s m u n d e r t h r e a t ? . Editors be should registered.