I ought to say at the outset that this article has nothing to with McCarthyism, a term that evolved in the aftermath of the House Un-American Activities Committee chaired by Senator Joe McCarthy, where the infamous question: “are you now or have you have you ever been a member of the communist party?” was first coined. It is of course a play on words, inspired principally by how McCarthyism is defined across a range of different resources: “making accusations without proper regard for evidence” and applied to the arrests of now some 30 journalists from News International following the phone hacking scandal.

The playwright Arthur Miller, one of those accused by McCarthy of “un-American” activity wrote The Crucible as a parable of his experiences using as his premise the Salem witch trials. Just one quote from Act 1 of his play quickly reveals its resonance not just to Miller but to those journalists that were the subject of dawn arrests last week: “I will come to you in the black of some terrible night and I will bring a pointy reckoning that will shudder you …”

It may seem odd that I should rush to advocate caution about the arrests of journalists from News International. I was the “expert” Nick Davies of the Guardian relied on in his submission to the Home Affairs Select Committee. The context there was that the Metropolitan Polices’ excuse for not investigating the allegations, namely, that voicemails that had been listened to could not be intercepted, was wrong. My position on this hasn’t changed, although I have said and repeat my concern that there has been no judicial finding yet that a single phone was in fact hacked. The cart, at least in my view, is before the horse. There was a glimpse that this may be true of the whole inquiry that followed the allegation that Milly Dowler’s voicemails may have been lost as a result of hacking when an officer from the Metropolitan Police gave evidence to the Leveson Inquiry before Christmas that this may not in fact be the case.

Let me be clear: I am not saying Milly Dowler’s phone was not hacked but that clear evidence should have established one way or the other before judgment was passed. The time to find out was not during a police officer’s evidence to an Inquiry set up on the basis of a presumption that it had. It is as if, as Miller wrote, “I have seen too many frightful proofs in court – the Devil is alive in Salem, and we dare not quail to follow wherever the accusing finger points”.

If I committed to the view that the law, as applied by the Metropolitan Police, was wrong then it was as a result of a belief that the law should be applied strictly. In tweeting some concerns about the arrests of several journalists at the same time and in dawn raids, criticisms were levelled at me that I was suggesting journalists were above the law and that I was naive to think this has constitutional implications. Few mulled over the excruciating provisions of the Public Bodies Corrupt Practices Act 1889 or the meaning “corruptly” for the purposes of that Act. Unusually, this definition of “corruptly” has been the subject of only a handful of cases since it was enacted over 100 years ago. Its impotence as a piece of legislation was one reason why the Bribery Act 2010 came into force. Notwithstanding this, if there is evidence of an offence being committed then it is important that it is investigated and appropriate action taken.

My suggestion that it may be unconstitutional arises for two reasons. First of all, it is the manner in which referrals are being made to the police, through the News Corp Unethical Activities Committee (or Management Standards Committee). This committee determines whether a complaint is made to the police or not. It has, according to its own policy, power “to preserve, obtain and disclose appropriate documents” and based on this decides whether to hand the material over to the police (incidentally any suggestion that dawn raids could be justified in order to preserve evidence in light of this wide policy is tenuous). The Committee does not seek out exculpatory material, nor is it its role to provide the individuals the opportunity to first explain their position on the material. Put simply, the case is built and the referral made. The first inkling those affected by this process have is when eight men teams of police officers pay the now suspect “a visit in the black of some terrible night”.

There is something decidedly Orwellian about this wheels-within-wheels process. It is interesting many of the same officers involved in the criminal inquiry, Operation Elveden, as it is known form part of the unit responsible for the arrest of Damien Green the MP accused of leaking material to the press. He too was arrested and his parliamentary office searched, although there was no suggestion that money had changed hands. At the end of the investigation the file was sent to the CPS for a decision on whether to prosecute. The Director of Public Prosecutions Keir Starmer in deciding not to charge Mr Green observed in his reasons “in this case, where the alleged misconduct in question is the leaking of information to an Opposition MP and, apparently through him, to a national newspaper, some assistance on the threshold for criminal culpability is provided by Article 10(1) of the European Convention on Human Rights (incorporated into our law by the Human Rights Act 1998), which strongly protects the freedom of the press. It does so by safeguarding the right of everyone to receive and impart information and ideas without interference”.  

The DPP continued “it is important that public officials should not leak restricted and/or confidential information. But, it is important that a breach of duty that might best be considered as a disciplinary matter should not be elevated to a criminal offence simply by virtue of the fact that the person leaking the information is a public official. Thus there is a need for an intense focus on any additional damage actually or potentially caused”.

This guidance has gone unheeded in a number of similar cases, not just, in my view, the arrest of News International journalists. We are dealing with the underlying issue of freedom of the press in this case. It engages Article 10 of the Convention. It does not matter, as some have suggested that, the Sun or the News of the World have been critical of the Convention in the past. Just because a man says he supports hanging does not mean, finding himself in the dock he should be hanged. I am reminded of the publisher Richard Carlile’s speech in his own defence after being accused of blasphemy in 1819 after he had published Thomas Paine’s Theological Works. Carlile talked of our country even then boasting of its “toleration and liberty of the press” but where journalists and publishers were “placed under continual fear of being harassed with prosecution and ruinous expense”.

But in addition, this inquiry needs to consider issues of public interest, those matters jurists have said “which makes their doing legitimate matters of public concern” and the protection of confidential sources. The Committee’s terms of reference a wide-ranging: fundamental tenets of freedom of expression and source protection have been usurped in the process. If you accept as Thomas Jefferson opined that “our liberty depends on the freedom of the press, and that cannot be limited without being lost” then every democracy must be exercised when its journalists are arrested and the question asked: was this really necessary?

What seems to clear to me in the responses I get that we are entering dangerous waters in sanctioning the approach taken to the issues arising out of that which has yet to proven is the venom directed towards journalists at News International particularly from lawyers representing those who have been victims of some of the Sun/News of the World’s more questionable journalism and elected officials. I find myself ending this article where it began, back at the resonance it has with other acts of history justified then and on reflection condemned as an encroachment of basic principles of liberty that we all take for granted and these words of caution from Miller’s The Crucible again: I’ll tell you what’s walking Salem – vengeance is walking Salem. We are what we always were in Salem, but now the little crazy children are jangling the keys of the kingdom, and common vengeance writes the law!”