A look back: Andy Coulson arrives at the Old Bailey ahead of his sentencing, 4 July. Photo: Getty
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Hacks in the dock: Duncan Campbell on the history of jailed journalists

What means, legal or illegal, are justified by what ends? And how has the law treated the British journalist over the years?

“It is not often that a man can look back upon his conviction and sentence as a criminal convict with pride and exultation,” wrote W T Stead, the editor of the Pall Mall Gazette, after being jailed for child abduction in 1885. “Such however is my case.”

Indeed, so proud of his criminal record was the man described as the father of investigative journalism in Britain, that every year, on the anniversary of his jailing, he would arrive at his office dressed in his prison uniform. Many journalists, most recently Andy Coulson and his News of the World colleagues, have appeared in the dock of the Old Bailey since W T Stead had his collar felt but few could claim, as Stead did, that the Queen was an admirer of their work or that their muckraking led to an important change in the law.

Stead was jailed for three months under the Offences Against the Person Act 1861 for purchasing a 13-year-old girl called Eliza Armstrong. He did so to expose the scandal of child prostitution, which was prevalent at the time in London, as W Sydney Robinson’s excellent biography, Muckraker, explains. “I have just interviewed a brothel-keeper who has undertaken to procure for my abuse two English girls of 13 or 14, warranted virgins,” Stead wrote to a friend. “Price £5 per head.” He then published a sensational series of revelations in the Gazette entitled “The Maiden Tribute of Modern Babylon”. “All those who are squeamish, and all those who are prudish” were warned not to read the stories. This, along with news-vendors’ placards proclaiming “I Order Five Virgins” and “Strapping Girls Down”, inevitably led to record sales. Not everyone agreed that Stead was justified in his actions. While the Methodist Times argued that it was what “Christ Himself would have done” and Queen Victoria supposedly “sympathised very keenly”, the Times dismissed Stead as a “self-elected guardian of morals”.

Stead was convicted at the Old Bailey, served most of his time in Holloway, then a men’s prison, and was even allowed to carry on editing the paper from behind bars. As a result of the public and political reaction to the story, the age of consent was raised from 13 to 16, where it remains to this day.

So what means, legal or illegal, are justified by what ends? And how has the law treated the British journalist over the years?

Since Stead’s day, many reporters working at the dark end of the Street have had to answer those questions as laws and ethical standards change. It was, for instance, once standard practice to pay convicted criminals for stories. In 1958, Harry Procter, one of the great Fleet Street crime reporters, addressed the subject in his aptly titled memoir, The Street of Disillusion. One of Procter’s big cases was that of John Reginald Christie, the subject of Ludovic Kennedy’s book 10 Rillington Place, who was hanged in 1953 for the murder of his wife; he had also killed at least seven other women. In order to get Christie’s story, Procter’s paper, the Sunday Pictorial (now the Sunday Mirror), agreed to pay for his defence, beating off the Sunday Dispatch, which also offered to foot the legal bill. Imagine that today: newspaper hires top QC to defend slippery serial killer.

Highly strung: journalists dangle from a lamp-post in this 1872 caricature. Image: Getty

Duncan Webb was another crime reporter of the era who sailed close to the wind. In his 1955 memoir, Dead Line for Crime, he recounts how he unmasked the Soho vice rackets, on one occasion tracking down a prostitute to her room: “I hastily pushed two pounds into her hands. ‘Darling!’ she said. ‘Look,’ I said fervently, ‘I don’t want the usual.’

The Australian journalist Murray Sayle, who became a distinguished foreign correspondent with the Sunday Times, worked for Webb as a young reporter and is credited by some with making up the popular phrase “I made my excuses and left”, which was what journalists were meant to do when they were about to compromise themselves.

Sometimes Webb made his excuses and stayed. He became the lover of Cynthia Hume, the wife of a double murderer called Donald Hume, who was acquitted of the murder of Stanley Setty in 1949 and some years later sold his story – “I killed Setty . . . and got away with murder” – to the Sunday Pictorial for £2,000.

In those days, you could not be tried twice for the same offence and the Pictorial even agreed to let Hume skip off abroad with his cash before it ran the story. Nowadays both Hume and the paper would fall foul of the law: the Criminal Justice Act 2003 removed double jeopardy protection and the Coroners and Justice Act 2009 prohibits criminals from selling the story of their crimes.

Webb’s rival was Stanley Firmin of the Daily Telegraph, who in his own memoirs, Crime Man, tells of a colleague whose behaviour today would have landed him at the Old Bailey. During a murder investigation near the Blackwall Tunnel in London, the reporter bought a handkerchief, smeared it with blood from his pricked finger and left it in the tunnel where a passer-by would find it and hand it in to the police.

Then he wrote a story about “the clue of the bloodstained handkerchief”. Firmin made it clear that such conduct was “indefensible . . . But the story does, I think, illustrate to some degree the quality of initiative and enterprise that the present-day crime men have, so to speak, inherited.” Indeed.

One case that famously ended at the Old Bailey was that of “the Silent Men”: Reg Foster of the Daily Sketch and Brendan Mulholland of the Daily Mail. Both refused to reveal their sources for their stories about John Vassall, an Admiralty civil servant who had been blackmailed because of his homosexuality into giving secrets to the KGB and jailed for 18 years in 1963. They were supported in their stance by all of Fleet Street but jailed for contempt for three months and six months, respectively. Paul Johnson, then editor of the New Statesman, wrote that journalists were “seething with anger” over the jailing, although a controversy over whether Foster and Mulholland’s sources ever actually existed rumbles on to this day.

In that period, paying police officers for information was seen by some as part of the job that could be charged to expenses, like taking a taxi. Peter Burden, the crime correspondent for the Daily Mail for more than 25 years, described in his memoir, How I Changed Fleet Street, an occasion when “a famous director of a national newspaper organisation” asked for his advice when delivering a speech to an international conference on press-police relations. Burden noted that the director, in his speech, recalled how, as a young reporter, he had regularly paid police station sergeants for information and for the home addresses of famous people caught up in investigations. “I told him that he was making public that in his early days he regularly bribed policemen – a criminal offence. He immediately deleted those paragraphs, and I received a bonus cheque. And the famous newspaper man’s reputation remained intact.”

Burden explained the relationship between police and press in the late 20th century, a relationship which now, post-Leveson, no longer exists.

“Detectives knew and trusted the crime reporters. They knew the sources of their stories (relayed over beers, purchased by reporters) would never be disclosed. I decided that, while the official information was vital, this pub scenario was not the life for me . . . I decided that one-to-one meetings with selected senior officers at high-class restaurants would be a much more profitable way of spending my expenses.”

Members of the fourth estate who found themselves in the dock in the 1970s tended to work for publications outside the mainstream – International Times, Oz, Nasty Tales, Gay News and Time Out – and certainly did not receive the clubby support of Fleet Street that was offered to Foster and Mulholland.

In perhaps the best-known of these cases, the editors of Oz magazine, Richard Neville, Jim Anderson and Felix Dennis, found themselves charged at the Old Bailey in 1971 with “conspiracy to corrupt public morals”. This was because they had handed over the magazine to schoolchildren for one edition, the famous – or notorious – “Schoolkids Oz”. The scatological results, including Rupert the Bear minus his trousers, led to an investigation by the Obscene Publications Squad – or the “dirty squad”, as it was known at the time, for more reasons than one.

The prosecution suggested that the trio had conspired “with certain other young persons to produce a magazine containing obscene, lewd, indecent and sexually perverted articles, cartoons and drawings with intent to debauch and corrupt the morals of children and other young persons and to arouse and implant in their minds lustful and perverted ideas”. John Mortimer QC, counsel for the defence, described the case as standing “at the crossroads of our liberty, at the boundaries of our freedom to think and draw and write what we please”. Many of the liberal great and good – Feliks Topolski, George Melly, John Peel, Edward de Bono – gave evidence for the defence but the three editors were convicted and jailed.

The judge, Michael Argyle, told Dennis (who died of cancer in June this year) that he would receive the shortest sentence, of nine months, because he was “very much less intelligent” than the others. But Argyle made a hash of the case and the three were cleared on appeal.

Dennis had his revenge by becoming a multimillionaire media magnate and got a grovelling apology and a £10,000 charity donation from the Spectator in 1995 after it published some of the judge’s dafter allegations about him.

IT (formerly International Times), the grandfather of the underground press in Britain, was also the target of many speculative police raids and in 1970 it was prosecuted for conspiracy to corrupt public morals and conspiracy to outrage public decency by running gay contact adverts, even though homosexuality had been legalised three years previously. The publishers were convicted on both counts, although cleared of the latter on appeal, and the paper briefly closed down as a result.

While the Oz trial passed into legend, much less is known of the equally entertaining case of Nasty Tales in 1972. This was a comic that emerged out of IT and contained the cheerfully explicit work of the great American cartoonist Robert Crumb, among others. Four members of the Nasty Tales staff, including the cartoonist Ed Barker and Mick Farren, who went on to work for the New Musical Express, were charged.

Farren, who died last year while performing on stage with his band, the Deviants, defended himself, telling the court that “it seemed from where we were in the underground press that being raided by the police was almost a fact of life, like rain”.

The judge in the case, Alan King-Hamilton, could not quite restrain himself from assisting members of the jury in making up their minds. “The pendulum of permissiveness has gone too far and it is time it began to swing back again,” he told them in his summing-up. To the delighted surprise of their rowdy supporters in the public gallery, all four were acquitted.

In 1977, Denis Lemon, the editor of Gay News, found himself in the dock at the Old Bailey for blasphemous libel for publishing the poem “The Love that Dares to Speak its Name” by James Kirkup, in which a Roman centurion expresses his love for Christ at the crucifixion. A private prosecution was brought by Mary Whitehouse on behalf of the National Viewers’ and Listeners’ Association. Lemon was convicted, sentenced to nine months suspended and fined £500.

Elsewhere in the forest, in the late 1970s, Time Out magazine became involved in exposing British and US government secrecy with help from Philip Agee, a dissident ex-CIA agent. Agee and Time Out’s American reporter Mark Hosenball – who had just co-authored with Duncan Campbell (my namesake, the former New Statesman investigative journalist) a prescient exposé of GCHQ called “The eavesdroppers” for Time Out – were served with deportation orders by the then home secretary, Merlyn Rees, “in the interests of national security”.

Angered by the deportation decision, John Berry, a former member of Signals Intelligence, contacted Time Out and agreed to be interviewed by the reporter Crispin Aubrey and Campbell. The phones were tapped; all three were arrested by Special Branch as they left Berry’s north London flat, held in Brixton Prison and charged under the Official Secrets Act.

The three men were convicted in 1978 under the lesser Section Two of the act at the end of an Old Bailey trial and given non-custodial sentences. The case led to the ABC (after the defendants’ initials) campaign, which challenged the then somewhat deferential national attitude to official secrecy, and to the discrediting of the act.

Journalists who have refused to divulge their sources since the Foster-Mulholland case have usually not gone to prison, though in 1971 the BBC reporter Bernard Falk was held for four days in the cells at Crumlin Road jail in Belfast for refusing to identify an IRA man in the dock as the source of his story. In 1988, the Independent journalist Jeremy Warner was fined £20,000 in a case brought under the Financial Services Act 1986 for refusing to divulge his sources in a story about purported insider trading by civil servants.

“Parliament in a democratic free society lays down what is the law and what must be done,” the judge, Sir Nicolas (later Lord) Browne-Wilkinson, told Warner. “Journalists are no more entitled to say they do not comply with it than anybody else.” Asked by the judge if he thought journalists were “above the law”, Warner responded that although not above the law, reporters “feel they must adopt the principle of confidentiality throughout their dealings with people and must suffer the consequences if, as a result, they are brought into conflict with the courts”. The judge sensibly avoided the overbearing Argyle/King-Hamilton approach and decided that he was not going to risk “the creation of a martyr” by jailing Warner. He imposed the fine instead.

In 1990, a young reporter for the Engineer magazine, Bill Goodwin, also found himself in trouble for protecting his source in a story about Tetra Business Systems. He, too, was initially fined, but eventually took his case to the European Court of Human Rights and won.

Arrests of journalists remained rare until 2011 and the arrival of Operation Weeting and Operation Elveden, the investigations into phone-hacking and payments to public officials, which have led so far to the arrests of more than 60 members of the media and the recent jailings. But while in the past an Old Bailey trial – for protecting a source, exposing an evil or for challenging censorship or government secrecy – could be worn as a badge of honour, hacking the phones of the vulnerable or famous carries no such cachet.

The briefest of glances around the world today – towards Egypt, China, Turkey, Russia, Honduras, wherever – makes clear the far graver dangers that journalists face from governments elsewhere. For a reporter in Britain, a criminal conviction may be a source of “pride and exultation”, a nuisance or a career humiliation, but for others around the world it can be a matter of life or death. l

Duncan Campbell is a former crime correspondent for the Guardian

This article first appeared in the 23 July 2014 issue of the New Statesman, Summer Double 2014

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How a devolved immigration policy could work in Brexit Britain

London and Scotland could keep free movement, or something close to it. 

Just a few short months after the vote to Leave, Britain and the European Union appear to be hurtling towards confrontation – and mutual self-harm. At the Institute for Public Policy Research (IPPR), we believe that what we need is not “hard Brexit” or “soft Brexit” but “smart Brexit”.

At the moment, too much of the debate is characterised by clinging on to obsessively ideological positions, or attempting to relitigate the referendum because you didn’t like the result. There is far too little serious policy thinking taking place.  

Firstly, we should demand that politicians think again on immigration policy. Recent polling has shown that the country is split on whether to prioritise the economy or immigration control in the negotiations. Given this, it would be reasonable to expect politicians to attempt to accomplish both. Yet politicians on both left and right have marched off to the extremes.

Theresa May has indicated that we are heading towards a one-size-fits-all closed borders system; Jeremy Corbyn has made an absolute commitment to freedom of movement, defining immigration as a problem of austerity economics. Both positions are overly simplistic, unoriginal, and show little regard for our democracy or national interest. We should begin by disentangling the different strands of the immigration debate. 

The referendum exposed three broad contours to the immigration question. The first is that different parts of the country have different interests; the benefits and costs of immigration are not evenly distributed, particularly with regard to jobs. Second, there is an important cultural dimension about consent – expressed as "nobody asked us" – and the pace of change in specific communities. It was striking that the areas with the highest levels of immigration strongly voted Remain; but those with the fastest pace of change voted strongly Leave. Third, that there are public concerns about the impact of immigration on public services and housing.

A devolved immigration system would allow different parts of the country to act according to their (divergent) interests. It could work by using certificates of sponsorship to require employers to specify the place of work and residence of the employees they sponsor; and by setting region-specific quotas for these certificates by sector (and possibly pay level).

Such an approach would better secure our national interest by recognising our regional differences, boost democratic decision-making and so address consent, and go some way to address the impact on public services and housing. It would work for both EU and non-EU migrants. There are international precedents, such as Canada. 

A regional solution

Under this option, different regions would determine their interests and then either set quotas for specific sectors or determine that some or all sectors should have no restrictions, differentiated by EU and non-EU migrants. In sectors which required work permits, employers would need to draw down against agreed quotas. Employers would be required to register a place of work for migrant employees, and ensure that their home address was in a commutable distance from their place of work. For those sectors without restrictions, registration would take place but would not be subject to quotas. It would mean some additional rigidity in the labour force - migrants workers would not be able to be redeployed from one part of the country to another without affecting each region’s quotas. 

The key to such an approach is London. The capital is a huge draw for people from overseas - it would have to decide to sustain free movement for a devolved system to have any chance of being effective. There would simply be too much risk of backdoor entry to London if it were to set quotas. Londoners, like the rest of the country, are split on immigration. Nonetheless, they elected a Mayor who openly supports free movement, London’s globally-orientated services sector benefits strongly from immigration, and voted strongly for Remain. There is every reason to believe that London would decide to continue free movement for EU citizens. 

The crucial step for such an approach to have legitimacy would be to have democratic control of setting work permit quotas. For Scotland, Wales, Northern Ireland, and London, the devolved democratic structures are already in place to make decisions on immigration. Not only did Scotland vote strongly to Remain, when Scottish First Minister Nicola Sturgeon gave her first major post-Brexit speech at IPPR in July, she described the importance of free movement for Scotland. The Welsh and Northern Irish Assemblies are clearly well-placed to make decisions for their parts of the Union. 

Democratic solutions for other parts of the country would need to be bespoke. One approach might be to form “Grand Committees” of existing elected representatives in different regions. These would bring together elected council leaders, the newly-elected Metro Mayors, and Members of Parliament, with voting in an electoral college, determined by population size. They would then consult with the public and employers, examine the evidence, and make the decisions for which the public could hold them to account.   

Goodbye, net migration target

Elected politicians would need to be able to make informed decisions, based on analysis of the skills base and the workforce requirements for sectors in each region. It would be vital to have proper consultation processes with employers and with citizens and communities. 

Such an approach would also require the devolution of the education and skills systems. If employers cannot seek skilled labour from overseas, they will need to be able to secure skilled workers at home. The entity responsible for immigration policy would need to make skills policy, too. 

National immigration policy would be reserved for those areas that are properly national, such as refugee resettlement and asylum policy for those fleeing persecution. By focusing national political choices on matters of principle, it would enable us to have a more moral conversation about our obligations in the world. It would stop us from conflating the people fleeing the terrible destruction in Syria with those looking for a boost to their pay from higher wages in Britain than in Eastern Europe. It might just enable us to begin to act like responsible members of the international community again. We should also embrace what could be termed “cultural free movement”: allowing all EU citizens to visit and to study across the UK visa-free. This would tap into the nobler – and popular – aspects of the European project, and might be used to secured our continuing participation in pan-European scientific research and the Erasmus programme. Immigration controls on the citizens of European countries should be reserved for employment, through work permits.    

It would also require the net migration target to be abandoned, as it is completely inconsistent to have a national net target with devolved controls. This would be a good thing: it would provide political cover to abandon a particularly stupid piece of policy. As IPPR has argued for many years, it makes absolutely no sense to lump together American bankers, Polish builders, and Syrian refugees and count them all as the same. Furthermore, a recent IPPR report concluded that the numbers are probably shoddy anyhow. They simply don't stand up to serious scrutiny. If you believe the official figures, tens of thousands of people get university degrees and then disappear into black economy jobs earning cash-in-hand every year. It’s just not plausible.

So, how can a devolved immigration system help?

Professors and fruitpickers

A devolved immigration system would recognise that different parts of the country have different interests. Strong majorities in London and Scotland have voted for political leaders that openly support free movement of people. In other parts of the country, there appears to be a stronger consensus that free movement is not in their interests. 

The East of England, for example, might conclude that it needed migrants to work in the fields of the fens and to work in research laboratories in Cambridge’s world leading institutions, and place no restrictions on fruit pickers and professors. But it might also decide to set quotas for skilled jobs in light manufacturing, and to direct the skills system to train local workers for those roles instead of opening those opportunities up to migrants. This would mean that the immigration system could be optimised to the interests of different parts of the UK. 

Moreover, a devolved approach would humanise the debate on immigration. It would require practical choices determined by regional needs. It would remind us that migrants are people who do essential jobs like work in our hospitals (I imagine every part of the UK will want to keep the NHS functioning). It would demand that local employers make the case to local politicians. It might just take us away from high level statistics and low level instincts. It would take us from the politics of the gut being fought in the gutter to a more responsible discussion. 

Critics will say that this will end up with free movement in a complex and bureaucratic way. Even if this was the case – it is not clear that it would be – it would mean that people would have decided for themselves that migration was beneficial. Some degree of messiness is inherent in any compromise solution; and the incremental complexities of a devolved rather than national system are marginal. If Britain found its way to free movement by democratic consent rather than by Whitehall diktat, that would surely be preferable. Then, the question, “what have the immigrants ever done for us?” might well receive a Monty Pythonesque response. 

Tackling the pressures

Proper management of immigration means addressing its consequences. In a world where public sector budgets are being cut, services have struggled to cope with demand. Most studies have demonstrated that migrants, in the aggregate, are net contributors to the public purse but that does not take away from the pressures felt locally. Politicians on the left and right have alighted on some common ground in their approach - all major parties support a migration impact fund. Yet a migration impact fund, whilst necessary and useful, is ultimately marginal.  

The real solution must be to address the underlying allocation formulae that create these distributional problems. In addition to his pointless, destructive, and unnecessary reorganisation of the NHS, Andrew Lansley also tampered with the allocation formula that distributes NHS budgets across the country. It was reweighted to increase the significance of age, meaning that areas with more older people received disproportionately more money, while resources were moved away from younger, poorer areas. 

This was an act of grotesque political cynicism. It had the effect of redistributing from poorer typically Labour-voting areas to older, wealthier Tory-voting areas. But the other affect was to shift resources away from places with high immigration, since migrants are typically young themselves and have higher fertility rates. It was a far more significant – and cynical – decision than the abolition of the pitiful migrant impact fund. And so reinventing the migrant impact fund is merely tinkering at the edges.  

Similarly, blaming immigration for the housing crisis is easy but wrong. A large number of new arrivals certainly adds to the pressure. But it pales in significance when compared to our abject failure to build enough houses. Britain has roughly double the population of Canada and yet builds just one-third of the new homes every year. The solution to the lack of affordable housing is to build more homes. No immigration policy is going to solve the housing crisis. 

What are the drawbacks?

A devolved immigration system certainly has some drawbacks, both in substance and implementation. As with any sector-based approach to immigration, there is a risk of getting the numbers wrong resulting in skills shortages for employers, or putting firms off from investment by creating uncertainty about the labour supply. Those areas that had decided to introduce particularly draconian controls might find that employers decided to move elsewhere. This is no more true than at a national level, as reports from international firms reconsidering their investments illustrate.  

Operationally, it could become complex and bureaucratic. The foolish dismantling of the Government Digital Service has seriously eroded central government’s capacity and capability to do things in an efficient, modern way. As with all immigration systems, people will be tempted to abuse it, and it would need to be robustly policed. Moreover, this system would place greater responsibilities on employers - they would have to face stiffer penalties if they abused – or permitted abuse to take place – the system. Part of the price would be the inevitable steady drumbeat of stories in the xenophobic parts of the press finding people working where they were not registered. But these drawbacks – whilst important – are massively outweighed by the benefits. 

Immigration and the Brexit deal

The international response to the government’s strident signals about immigration control has been fiercely negative. The hostility of tone – verging on xenophobia – was regarded with shock and disgust in many European capitals. The political dynamic between British politicians and their European counterparts has quickly become toxic. We are heading down the path of "Mutually Assured Destruction" (MAD). 

For the most part, European leaders see the EU as an inextricable part of their national interests, which is precisely why its preservation is top of their agenda. Right now, their judgement seems to be that Britain must be seen to be worse off because of Brexit in order to prevent the Exit contagion catching, just as they were determined to punish Greece so that the debt crisis would not spread to Italy, Spain, Portugal and Ireland. After all, as Nigel Farage himself pointed out, there are somethings that are more important that GDP, and most European leaders believe preservation of the EU falls into that category. 

Speaking privately, one European cabinet minister recently told me that his country would be pushing for the “worst possible deal” for the UK because “a good deal for you would cause chaos for us, and even if you were seen to be treated fairly, that would push us towards the exit door”. At present, the mindset is that Britain must be seen to pay a price, and there is a very real risk that the EU forces us to choose between our car industry and our financial services sector. This is yet another reason that we need to be seeking common ground, not pursuing a divisive approach in the country or internationally.  

A devolved immigration system might enable EU leaders to say that free movement had been secured because it would continue in London and Scotland (and possibly in other regions too) along with nationwide “cultural free movement”. Given their fidelity to the principle of free movement, it would still require them to make quite a departure from their existing position. But in a devolved immigration system, we might just find our common ground. That, perhaps combined with paying a hefty fee, might be just about enough to secure our access to the single market and participation in some of its key institutions – vital if we are to be regulation makers rather than takers – or at the very least tariff-free trade for tradable goods and passporting for the City of London. It would certainly be a more attractive offer than us pulling up the drawbridge or being "pro having our cake and pro eating it".

Finally, there is a wider issue at stake here. As we enter into the negotiations, we will need much more smart thinking about nuanced solutions. At the present, our political leaders – on left and right – appear to be spending more time posturing and swaggering than thinking. Our Conservative Prime Minister and recently re-elected opposition leader are sacrificing the national interest on the altar of party management, the perpetual problem in British politics. We should demand Smart Brexit, and we should demand more creative thinking from our government, its leaders, advisers and officials. In this period of turmoil, the British people deserve nothing less.    

Tom Kibasi is the Director of the Institute for Public Policy Research.