Mr Peter Bradley MP complained that The Sunday Times had paid Jonathan Aitken or his associates for the serialisation of his book Pride and Perjury, which began on 12 March 2000, in breach of Clause 16 (Payment for articles) of the Code of Pratice.

The complaint was not upheld.

The complainant said that he was concerned about newspaper reports that said that Mr Aitken, who had served a prison sentence for perjury, would be benefiting from the sale of his memoirs to the paper. Mr Aitken himself, a bankrupt, would not be paid any money directly. However, the complainant maintained that he was benefiting from the payment – which was made to his creditors – as it reduced the amount of money he would eventually have to repay to his creditors. No material of public interest was revealed by the serialisation and in any case payment was not necessary to put the material into the public domain as it was based on the contents of a book.

The newspaper said that it was mindful of the background to the case which included the fact that Mr Aitken had been convicted of a criminal offence. However, it said that it was clear from the earliest correspondence that the paper wished to ensure that any fee paid would go directly to the trustee in bankruptcy for the benefit of Mr Aitken’s creditors and not to Mr Aitken, members of his family or his associates. It was doubtful therefore that the terms of the Code applied. The newspaper added that even with the money for serialisation it was still extremely unlikely that Mr Aitken would be able to pay off all his creditors in full and it remained unlikely that he would be discharged from his bankruptcy before the statutory three year period had expired. The only benefit in these circumstances would therefore be to Mr Aitken’s creditors. The newspaper also bore in mind the tests laid down in previous adjudications by the Commission. To this end, it added that Mr Aitken’s story did not glorify crime and that it would enter the public domain by virtue of its publication as a book. The newspaper reminded the Commission that the Code of Practice imposed tougher regulations on newspapers than existed on the book publishing industry which was subject to the law alone. In summary, the newspaper asked the Commission to consider three key factors if it decided that the Code applied in this case. Firstly, there was a strong public interest justification for publishing the story of the man who had lost his reputation and worldly goods after telling a lie. Secondly, payment was necessary to secure the property, and once secured the newspaper had ensured that nothing would be paid to Mr Aitken. Thirdly, the newspaper said that there was a right to freedom of expression. The material was already to be put into the public domain and the newspaper had only serialised it and ensured that it reached a wider audience.

The Commission has always set store by consistency and by a case law approach to adjudications. There is now a considerable volume of adjudications relating to payments to criminals and it should be clear to editors that the Commission will apply four key tests when considering complaints under Clause 16 (ii) of the Code. Those tests are: did the article contain any information of public interest? Was payment necessary? Was new information made available to the public as a result? Was there any profit involved?

There are other matters that the Commission may bear in mind as well, notably the right to freedom of expression, the extent to which the information was about to be made public and whether or not the articles glorified the crimes of those who allegedly profited from the sale of their stories. The Commission is also mindful that the Code of Practice exists above and beyond the law and that newspapers and magazines are subject to it in a way that book publishers and broadcasters are not. The Commission has made clear before that it will hesitate to impose a censorious regime on newspapers beyond that which Parliament has put in place and which the Government itself has decided it would be impossible to establish in view of the Human Rights Act 1998.

In this case, the Commission noted that there was some doubt as to whether Jonathan Aitken had profited from the serialisation. The newspaper maintained that the beneficiaries of the payment were Mr Aitken’s creditors while the complainant said that such payments could enable Mr Aitken to discharge his bankruptcy sooner than would otherwise have been the case which would be a clear benefit to him. The Commission considered that although it was not possible to tell at this stage whether or not there would arguably be a benefit to Mr Aitken as a result of the payment it was conceivable that there might be circumstances in which he could be seen to have benefited. The Commission therefore applied the four tests.

1. The Public Interest

There was no doubt in the Commission’s mind that the articles were justifiable in terms of the public interest. Mr Aitken had held high ministerial office and subsequently been exposed as a liar in a high-profile libel trial which he himself had brought. The articles went some way to explaining for the first time why he had embarked on the strategy which in the end exposed his lies.

2. New information

Similarly, new information had been made available to the public in the articles. The personal story of the central character in the libel trial had been told for the first time and Mr Aitken had also used the opportunity to make public his contrition and his quest for rehabilitation. The sequence of events that were the subject of the lies was discussed and the vortex of deceit that led Mr Aitken to inveigle his teenage daughter in the perjury was examined.

3. Was payment necessary?

Having concluded that the material was in the public interest, the Commission turned to the question of whether the payment was necessary. The Code allows newspapers to make payments for material in the public interest provided it is ‘necessary’ for it to be done, although the Commission has made clear on a number of occasions that it appreciates that such payments might be offensive to some people. In this case, in order for the newspaper to bring to wider public attention
these matters that were in the public interest it was necessary for them to pay a fee for serialisation which would secure the property. In this sense the payment was necessary. Indeed, had no payment been necessary it would have been unlikely that the newspaper would have made one. Although the complainant maintained that payment was not necessary to put the material into the public domain, this was not a matter which fell under the terms of the Code, which relates to whether a payment is necessary to publish something in the public interest in a newspaper or magazine.

4. Was there any profit involved?

The Commission noted that the immediate and unambiguous beneficiaries of the payment were Mr Aitken’s creditors. No money had been paid to Mr Aitken, his family or his associates. However, it remained to be seen whether the payment might benefit Mr Aitken by enabling him to discharge his bankruptcy sooner than would otherwise be the case. Although this arguably may benefit Mr Aitken it would not constitute in any real sense a ‘profit’ nor breach the letter of the Code, which requires that payments are not made to ‘convicted or confessed criminals or to their associates, who may include family, friends and colleagues’.

The Commission made two further points. The Code of Practice specifically states that there is a public interest in freedom of expression and charges the Commission with having regard to the extent to which material has, or is about to, become available to the public. This reflects the European Convention on Human Rights which is shortly to be incorporated into English and Welsh law. The material was about to be made public through publication of a book and it was unlikely that without payment the publishers of the book would have wanted the material, which was in the public interest, to be published in the newspaper to a much wider audience. Had the Commission upheld the complaint it would have effectively held that the Code should have prohibited the payment for – and therefore publication of – the articles. This would have been to ignore powerful arguments in favour of freedom of expression that are enshrined both in the Code and also in law.

The Commission also noted that the articles did not seek to glorify Mr Aitken’s crime. In fact, the opposite was the case. Mr Aitken had gone to some length to explain the gravity of the crime of perjury and in the articles accepted his culpability, discussed his humiliation and described how the crime led to the loss of his wordly goods and marriage.

Consistently and rigorously applying the tests established in previous adjudications, the Commission found that the newspaper had complied with the terms of the Code and did not uphold the complaint.