Miss S Taylor complained that a payment by the News of the World to Allison Brown, a witness in the trial for indecent assault of Paul Gadd (also known as Gary Glitter), was in breach of Clause 16 (Payment for Articles) of the Code of Practice.

The complaint centred on a contract between the newspaper and Ms Brown, whose testimony against Gadd formed a key part of the trial against him for alleged indecent assault on her. The contract had been agreed in November 1997, before any charge relating to Ms Brown was made and at a time when she was neither a witness nor a potential witness in any current criminal proceedings.

In his summing-up of the trial, which took place in November 1999, the Judge - Mr Justice Butterfield - had told the jury: "Here is a witness who first made public her allegations of sex abuse in return for the payment of £10,000 and who stands to make another £25,000 if you convict the defendant on any of the charges. That is a clearly reprehensible state of affairs. It is not illegal, but it is greatly to be deprecated." Gadd was subsequently acquitted on the indecent assault charges relating to Ms Brown - although he was found guilty on a substantial number of charges relating to child pornography.

The terms of the contract

The terms of the contract related to a payment of £10,000 to Ms Brown for a story about her relationship with Gadd published in the newspaper on 23 November 1997 - just after Gadd had been arrested on charges relating not to Ms Brown, but to child pornography. The contract also specified that, should Gadd be convicted on charges relating to the possession of child pornography or "any other charges relating to sex with under age girls", the newspaper would - on publication - pay Ms Brown a further £25,000 for her "full detailed and true story with particular reference to her knowledge and experience of her friendship
with ... Gadd .."

The terms of the Code

The Code of Practice makes clear that payment or offers of payment must not be made to witnesses or potential witnesses in current criminal proceedings except where the material concerned ought to be published in the public interest and there is an overriding need to make payment for this to be done. Aside from the test of public interest, the Code sets out two other tough tests - that:

* journalists must take every possible step to ensure that no financial dealings have influence on the evidence that a witness may give; and

* payment or offer of payment to any witness actually cited to give evidence must be disclosed to the prosecution and defence.

That the Code is so tough is a reflection of an important balance: that, on the one hand, it is important that newspapers have the freedom to pay witnesses where there is substantial public interest in them doing so; while, on the other hand, nothing a newspaper does relating to a criminal trial should in any way impede the course of justice. The balance in the Code also recognises that any complete ban on pre-trial payments to witnesses might itself give rise to possible miscarriages of justice. Under the Code, the jury is aware of any payment. If the Code - or statute - banned such payment, it is possible that somebody giving evidence in a trial might exaggerate their evidence in the belief that they might extract a higher payment for their story after criminal proceedings were completed: that is something no jury could ever take into account.

That said, the Commission has also always been clear that - if it can be proved that self regulation is failing to protect the course of justice - it would support practical proposals for legal reform. Up to this point, no such case has been made out: the issue of witness payments has only arisen five times in forty years, in none of which cases has any interference with the process of justice been demonstrated.

The newspaper's defence

The newspaper set out the background to its relationship with Ms Brown, which began in September 1987, when they published Ms Brown's story about her relationship with Gadd when she was a fourteen year old girl. In it she had described how he "beat her up when she refused to marry him and how he wasn't interested in ordinary sex". The newspaper ran a further story in October 1993, in which Ms Brown detailed an unlawful sexual relationship with Gadd. On neither occasion - in 1987 or 1993 - did the police pursue the allegations made by Ms Brown.

In 1997 Gadd was arrested on charges relating to child pornography on the Internet. At that point - when Ms Brown was not either a witness or potential witness in current criminal proceedings - the newspaper entered into a fresh contract with her having absolutely no reason to believe, in the light of the failure of the police to investigate earlier, that she would be a witness in any subsequent trial of Gadd. She was, certainly, not a witness in the case relating to child pornography.

The purpose of the fresh contract was both to obtain her comment for the newspaper in the immediate aftermath of Gadd's arrest and to secure her reaction should Gadd subsequently be convicted on the charge of pornography or any other similar charges. The newspaper underlined the fact it was the aim of the contract to retain Ms Brown to talk about her experiences of Gadd should he be convicted on charges which were not related to her. The newspaper said that the reference in the contract to a conviction for sex with an under age girls was because it had learned that the police were considering a charge against Gadd in relation to another woman (whose own story subsequently appeared in another newspaper). The police did not charge Gadd with an offence against Ms Brown until after the contract had been signed.

While making clear that Ms Brown was not a witness in any current criminal proceedings at the time the contract was signed, the newspaper nonetheless addressed the three key tests in the Code which would have applied had she been a witness.

First, it argued that there had been substantial public interest in again exposing the criminal activities of a prominent member of the entertainment industry who had a massive following of teenage girls.

Second, it argued that the terms of the Code on transparency of payment had been met in full, with both prosecution and defence being made aware of the contract by the time of Gadd's committal.

And third, it underlined that it was never the purpose of the contract to induce Ms Brown to alter her evidence - because she was not at that point going to give any evidence. Moreover, they pointed out that there was no contact between the newspaper and Ms Brown between the signing of the contract in November 1997 and the trial two years later. Moreover, Ms Brown's story had been consistent right through from its first telling in 1987 to trial in 1999 - as cuttings made clear. The newspaper also produced an extract from Ms Brown's cross examination in which she insisted under oath that she was telling the truth in the interests of justice - and not of money.

Finally, the newspaper made clear that - while it did not believe there had been a breach of the Code in this case - instructions had been given to all staff to exercise the very greatest of care when entering into any future contracts as it had no wish to impede the proper course of justice.

The Commission noted that its responsibility in such cases is strictly to apply the terms of the Code - not to reach a judgement on the very serious matter of whether or not a payment has corrupted criminal proceedings. In this case, the Commission understands two separate inquiries into that matter to be underway, the results of which it awaits with interest - but which do not overlap with its own investigation and adjudication.

Before reaching that adjudication under the Code and on the basis of the evidence before it, the Commission made a number of preliminary observations.

First, it was clear that - at the time the contract with Ms Brown was struck in November 1997 - she was neither a witness nor a potential witness in any current criminal proceedings. It was not an unreasonable supposition for the newspaper to reach that, given Ms Brown's testimony had been so long in the public domain without any action by the police, it was unlikely that she would ever become central to a criminal trial involving Gadd.

Second, it noted - following scrutiny of Ms Brown's accounts of her relationship with Gadd in both 1987 and 1993 - that her testimony had remained consistent throughout that time. This suggested that the existence of a contract ten years after she told her original story had not changed her evidence in any way.

Against that background, the Commission then turned its attention to the three key tests outlined in the Code.

On the test of public interest, it was clear that the newspaper had a substantial defence. The Commission noted that it was, in fact, the News of the World which had been the first to sound a warning about the behaviour of Gadd - particularly important in view of the large following he had of young people and the failure of the police to act at an earlier stage. Subsequent revelations in other newspapers about the behaviour of Gadd had underlined this point.

Second, on the test of transparency - one of the strengths of the Code over any form of blanket ban on witness payments - it was again clear that the editor's obligations had been met as the terms of the contract were made known to prosecutors before committal.

On all these fronts, the Commission found that the newspaper had complied with the Code.

• When the contract was signed, Ms Brown was neither witness nor potential witness and there were - in the words of the Code - no current criminal proceedings.
• The newspaper had a substantial public interest defence in that the stories it obtained from Ms Brown were - in the words of the Code - detecting and exposing crime.
• The terms of the Code on transparency of payment were fully complied with. Indeed, there is ample evidence that the jury more than fully took its existence into account when reaching their verdict.
• There is no evidence that the existence of the contract caused Ms Brown to change her story. That story had, in fact, been consistent over a period of twelve years.

However, the Commission had also to consider the position which arose after Gadd had been charged with an offence against Ms Brown. After that point, the terms of the contract might be taken to mean that Ms Brown would be remunerated in relation to a conviction in respect of a charge involving her - which the newspaper said was not the intention. This ambiguity clearly played an important part in the trial, the judge's summing up and the jury's verdict.

All this could have been avoided if the newspaper had made it clear to Ms Brown that no payment would be made in the event of a conviction in relation to any charges involving herself. In the view of the Commission, the failure to do this caused the Code to be breached since the contract could be construed to provide a conditional payment in the event of a conviction relating to Ms Brown.

Such conditional offers of payment are not acceptable under the Code, and the problems which arose would have been avoided if the contract itself had made this position explicit. Indeed, the Commission could not see how payments, dependent on conviction, could ever be justified under the Code even on grounds of exceptional public interest. Any newspapers entering into contracts in the future must ensure in an explicit manner in the contract that no money is payable dependent on the outcome of a criminal trial. The Commission was pleased to note that, on this point, the newspaper had now revised its procedures to avoid ambiguities arising in any future contracts.

In conclusion, the Commission found that while the substantial part of the Code's provisions had been complied with, on this point there had been a breach of its terms.