Journalists should not have extra protection from bribery law, says Justice Secretary

Ken Clarke said he was "not persuaded" that journalists should have a specific right to a public interest defence when they pay for stories. He said that prosecutors already take into account whether it is in the public's interest to bring charges under the Act and that he did not think prosecutors would try to prosecute reporters who would be likely acquitted or given a conditional discharge, according to the Press Gazette.

"Some stories are obtained by telephone hacking, some by blagging, some by blackmail and some by bribery. They are all illegal. We are all subject to the rule of law and that should be enforced," Clarke said at the Society of Editors conference, according to the Press Gazette's report.

"Prosecutions will only be brought under the Bribery Act if there is a public interest in bringing the prosecution. It is true with all prosecutions. The prosecution will be at the discretion of the Director of Public Prosecutions [and] the Head of the Serious Fraud Office that it is in the public interest to bring that prosecution," Clarke said.

The Bribery Act came into force on 1 July. Under section two of the Act it is an offence if a person requests, agrees to receive, or accepts an advantage, financial or otherwise, with the intention that they or someone else perform a "relevant function or activity" improperly. The maximum penalty for individuals found guilty of bribery under the Act is 10 years' imprisonment and an unlimited fine. 

Corruption law expert Barry Vitou, of Pinsent Masons, the law firm behind Out-Law.com, said that the Serious Fraud Office (SFO), which is the lead prosecutor of offences under the Bribery Act, had already confirmed that charges of corruption or bribery would only be brought if it was in the public interest to do so.

"A critical piece of the equation is the public interest test," Vitou said. "The point Ken Clarke makes about prosecutors not bringing cases where a jury would probably acquit is a point the SFO have made on numerous occasions. It would be a mistake to amend the Bribery Act on this basis."

Clarke was reacting to comments made by Richard Caseby, managing editor of the Sun newspaper, who revealed that a Sun reporter had been suspended by the paper after being arrested on suspicion of making illegal payments. Although Caseby did not refer to the reporter by name, it is thought the journalist is Jamie Pyatt, the Press Gazette said. Pyatt was arrested on 4 November in connection with a police investigation into the alleged payment of officers for stories by newspapers.

Clarke said he was "surprised" the Sun had suspended the reporter but reiterated that journalists should be subject to the same bribery laws as anyone else.

"We are all subject to the rule of law, if somebody pays a bribe it is a crime. We didn't invent that law, all we did was bring it up to date. There has never been a public interest defence for bribery. Your journalist could have been arrested for bribery any time in the last 100 years," Clarke said.

Caseby had earlier said that the Sun had helped secure the first conviction under the Bribery Act with a "bribe", according to a separate Press Gazette report.

In October Munir Patel, a former magistrates' court administrative officer, admitted accepting a £500 bribe to "get rid of a speeding charge" and pled guilty to an offence under section two of the Bribery Act. An "undercover investigator" working for the Sun paid Patel in what the paper has called a "sting operation".

Caseby said that his involvement in the sting had "exposed" himself and the newspaper to "unlimited fines", according to the Press Gazette. Under the Bribery Act companies can be found responsible for bribery carried out by its employees without its knowledge or consent.

"I was technically guilty of an offence under the Bribery Act," Caseby said.

"I exposed the whole company to unlimited fines because of the way the Bribery Act is defined. If a policeman came to my door and arrested me because of that technical offence I would probably have to sell my house. I would be left in a very high and dry place at your discretion," he said.

Keir Starmer, the Director of Public Prosecutions, said that journalists had some free speech protections, as guaranteed under Article 10 of the European Convention on Human Rights, which he said "built in safeguards for journalists to do their job".