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- The Guardian, Monday February 25 2002
Few things generate as much heat (and as little light) as chequebook journalism - the payments by tabloid newspapers to witnesses in criminal trials. The legal view is clear: "Highly reprehensible state of affairs," "It's time to outlaw this practice," and "It could put justice at risk," are just a few of the comments made at the trials of Gary Glitter, the Taylor sisters and Rosemary West.
This month, Judge John Bull QC drew it to the attention of the jury in the trial of Canadian teacher Amy Gehring, who was accused of having sex with underage pupils, after tabloid newspapers struck deals for the inside story from witnesses for between £4,000 and £10,000. The press complaints commission (PCC) subsequently launched an investigation into whether payments to the schoolboy witnesses breached its code, and the lord chancellor plans to issue a consultation paper next month which will review payments to witnesses.
We have been here before and nothing has been done. Do we need new legislation?
Perhaps inevitably, the first time chequebook journalism caused public outrage involved one George Carmen QC, who defended Jeremy Thorpe, then leader of the Liberal party, on trial accused of the attempted murder of his lover, Norman Scott. Nearly four years later, Thorpe and three other men were acquitted of the charge of conspiracy to murder, but the case is not remembered for the famously affectionate letters Thorpe wrote to Scott ("Bunnies can and will go to France... I miss you"), but the bizarre perversion of justice committed by the Sunday Telegraph which paid the key witness, ex-Liberal MP Peter Bessell, on a "double your money on conviction" basis. Jurors later told the New Statesman that the chequebook deal for the witness' story - £25,000 up front with £25,000 to come if Thorpe was convicted - had made his evidence worthless to them.
There was much public condemnation at the time but no action. It was events leading up to the trial of Rose West in November 1995 on 10 counts of murder that brought payments to witnesses back into the legal spotlight. Five prosecution witnesses had been paid sums by newspapers of between £750 and £30,000. Disclosure of these contracts with the media had been made to counsel for the crown, and the witnesses had been cross examined on them. The court of appeal, when reviewing the convictions of Rose West, thought that the effect had been merely to weaken the crown's case rather than make the verdicts unsafe, although in their Lordships' view, the whole issue of media payments to witnesses needed to be reviewed. The court of appeal was particular in the wording of its conclusion: "We believe that in some circumstances it could put justice at risk."
As a result of these payments the PCC required any offer to be disclosed to both prosecution and the defence, while the voluntary code made clear that payment for stories or information by the media should not be made to witnesses in current criminal proceedings unless there was an overriding public interest. Lord Wakeham elaborated in 1999: "There are three tests relating to witness payments. One, was the payment in the public interest? Two, did payment influence the evidence of any witness? Three, was payment disclosed to the court?"
The establishment moved slowly. In October 1996, the lord chancellor's department issued a consultation paper, Payments to Witnesses; two years later the chancellor announced that the government believed that there should be legislation forbidding payments to witnesses.
The concern was an unsubstantiated risk of encouraging witnesses to exaggerate their evidence to make it more newsworthy or to withhold relevant evidence from the court and make it available as an exclusive to a newspaper. But there were legal problems in the definitions. And why should victims not be able to have some financial recompense?
But there is a potential stick with which to beat the media - section 51 of the Criminal Justice and Public Order Act 1994, which made express provision for a new offence of intimidating or causing harm to anyone who is a juror or witness or a person assisting in the investigation of an offence.
The section was intended to stop bullying and corruption in the context of serious criminal trials, but could catch bullying by tabloids if there was an intention to interfere with the course of justice. When a story becomes newsworthy, witnesses can be pestered by journalists keen to buy them up. Could this amount to intimidation? Certainly if extra money is on offer for a guilty verdict.
If a defendant has been acquitted and the procedure has been tainted by the intimidation of a witness, the high court can, under the Criminal Procedure and Investigations Act 1996, quash the acquittal and order a retrial, departing from the general principle that you cannot be tried twice for the same offence.
So if the media had intimidated and bullied the boys or their parents in the Amy Gehring case badly enough, she could face a retrial, which hardly seems fair. In fact, Judge John Bull QC was of the view that the reporters had behaved scrupulously in their approaches to the boys, but the next time the tabloid press works itself up into a frenzy, commercial pressures may lead to an unexpected and dramatic result from a forgotten statute.
But expert witnesses get paid, and all are entitled to expenses, so why shouldn't willing witnesses benefit? And the tabloids are not one-sided: Gehring's barrister Andrew Thomson said she too had received offers to sell her story. After all, all is fair in love and circulation wars.
· Duncan Lamont is a media partner in City law firm, Charles Russell
