Tim Crook: 'Jailing journalists over phone hacking scandal would serve no useful social purpose'

Sending journalists to jail over phone hacking would serve no useful social purpose, academic and journalist Tim Crook (left) argues in one of the articles in a forthcoming book on the hacking scandal.

Crook, senior lecturer in media law and ethics and head of radio at Goldsmiths, University of London, also claims that anger and prejudice directed at British journalists and journalism as a result of the hacking scandal is in danger of "consuming the oxygen of libertarian tolerance".

He writes: "The Hackgate scandal and Leveson Inquiry are profoundly humiliating experiences for any British journalist. The charge, with compelling evidence, that reporters and media institutions with the help of private detectives and corrupt police officers obtained scandalous stories about celebrities and head-start ‘scoops’ in murder inquiries by snooping on mobile phone messaging, planting viruses to hack computer email accounts, and passing wads of cash to bribe public servants, is shameful.

"British journalism is considered socially so bad it needs scores of detectives in multiple police inquiries, parliamentary committees, and a team of lawyers headed by an Appeal Court Judge to investigate and fashion regulatory solutions. Crimes may well be prosecuted at the Crown Court. There is the approaching vista, should arrests lead to charges, of journalists and their former editors appearing for trial in the dock of the Old Bailey."

But Crook adds: "I have argued for many years that human communication generates harm that is largely emotional and immaterial and that civil legal remedies and criminal sanctions should be proportionately restorative and avoid the temptation for popular penalism. Our penal institutions are overfull with young offenders and no useful social purpose would be served by feral youths being joined by the feral beasts of journalism."

He writes: "My late father always used to say there was nothing wrong with the offensive, embarrassing and uncomfortable breeze of truth apart from the halitosis of social attitude. I gladly quoted him in Comparative Media Law and Ethics as stating that ‘There are only two steps from tyranny: the first is when you deny a journalist the right to ask unpopular questions: the second is when you deny a lawyer the right to defend unpopular causes’.

"Campaigning Guardian journalist Nick Davies and tenacious solicitor Mark Lewis had every right to think they might have been in these positions when they stood strong against a tide of political and legal skepticism and condemnatory pressure.

"However, I fear that the aggression and retributive atmosphere of the Hackgate scandal and Leveson Inquiry, the white heat of anger and prejudice directed at British journalists and journalism is consuming the oxygen of libertarian tolerance and confidence in giving the media a necessary though potentially uncomfortable freedom without responsibility.

"Could it be that inquiry, negotiation, mediation, arbitration, conciliation, apology, forgiveness and emotional restitution are solutions that prey too greatly on the egos of the high and mighty? Surely restorative justice and media freedom are preferred options to the multi-million pound adjudicatory sequestration and incarceration of the scoundrels and miscreants of British journalism?"

Crook also argues that a "conscience clause" in journalists' contracts is "a low-cost and constructive reform measure that might be seen as a threat to the body politic, political establishment and media institutions.

"The individual journalist’s conscience clause if made mandatory in all employee contracts (whether staff, contract or casual) would challenge editorial autocracy and oppressive, unlawful, unethical, immoral media professional cultures that serve extremist and cynical business and political agendas.

"The conscience clause has always been advanced and campaigned for by the NUJ – in the past an effective frame for ethical and professional mentoring and the first self-regulator. The clause would move the battleground on irresponsibility and criminality to the employment tribunal. Journalists and media employees would have the right to say no to breaking the law and breaching codes of ethics, a right to compensation for reprisal by sacking, and black-listing, and proper employment law protection."

Crook claims: "Year by year statutes and case law have cumulatively bitten on and restricted the tactics and content of the tabloid market. Leveson might be invited to consider whether the harsh English libel laws, so expensive and claimant friendly, drove scandal mongers to break the law in the pursuit of information that could be guaranteed to be the truth rather than merely provable on the balance of probabilities."

He warns: "Hackgate is sapping News International of tens of millions of pounds instead of investing in new openings for journalism students at university, and the high quality investigative journalism seen as the holy grail of the fourth estate’s democratic function."

• THE PHONE HACKING SCANDAL; JOURNALISM ON TRIAL': Edited by Richard Lance Keeble and John Mair, Arima Publishing, Bury St Edmunds, will be published in February 2012. Available via Amazon.
• See also: Tony Harcup: How a conscience clause for journalists could help fill the ethical vacuum in the newsroom