The trial of the three men lasted several weeks, and the principal prosecution witness, an undercover reporter, posing as a representative of a wealthy far eastern business, gave evidence of many meetings in 2016 at which one of the men boasted openly about how widespread corruption in English football really is. They asked for and were paid £5,000 by the undercover reporter with a promise of another £5,000 to come in return for preferential treatment to certain players.
English law provides that to offer or ask for a bribe is a criminal offence, regardless of whether it is actually paid, and one might ask how an undercover journalist might do so?
In most cases the answer lies in the intent in making the offer and/or payment. Whereas a person receiving a bribe who doesn’t know he is dealing with an undercover journalist would find it difficult to argue that he accepted the bribe other than for the reason it was given, a journalist is entitled to say that in offering the bribe, he or she did not intend the person receiving it to perform his or her duties corruptly; rather that his or her intention was to expose corruption where it is clearly in the public interest to do so.
Police officers acting undercover are frequently asked to engage in activity which might be considered criminal, but for their real intention to detect and investigate crime, and when they do so they are subject to strict regulations and guidelines.
Journalists too are answerable to a regulatory body in this regard, namely the Independent Press Standards Organisation (IPSO). The IPSO Code of Conduct for Editors permits misrepresentation and subterfuge (in this case posing as a legitimate business) where:
- it is in the public interest;
- the evidence cannot be obtained by other means; and
- it is proportionate.
In this case, the undercover operation of the Telegraph was subject to legal challenge and scrutinised by the trial Judge, who found nothing untoward in the behaviour of the Telegraph’s undercover journalists, and the evidence gathered by them and handed over to the police immediately upon the conclusion of the investigation, was the foundation of the prosecution’s case.
RIAA Barker Gillette partner, Steven Barker, who has advised a number of national newspapers on criminal law issues, assisted the Telegraph in the development of its protocols and procedures for undercover operations and apparatus, and in dealing with its disclosure obligations to the prosecuting authorities before and during the trial.
Rachel Welsh, Head of Editorial Legal at the Telegraph, said:
“We are grateful to Steven for all his support and advice both before and during the case. Steven’s knowledge and experience in this field was invaluable.”
Steven is the author of our own protocols and procedures for preventing corruption and bribery and is available to assist in devising ways to prevent and, if necessary, investigate corruption should any business be concerned that it might exist in their organisation.
It is important to note that businesses and their managers can, in certain circumstances, themselves be prosecuted if a principal bribery offence is proven within their organisation or business and they do not have adequate policies and procedures in place to prevent it.
For further guidance and information, call Steven Barker today.
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