Ben Riley-Smith: Can hacking ever be justified?

Lord Justice Leveson has to define public interest and find a way to hold journalists to account

Another week, another alleged target named and another new low in the phone-hacking scandal. On Thursday it was revealed that Sara Payne, the mother of murdered schoolgirl Sarah Payne, who became a "dear friend" of Rebekah Brooks, may have been hacked by the News of the World.

She joins Milly Dowler, the parents of Holly Wells and Jessica Chapman, fathers of 7/7 victims and relatives of Britain's war dead on a list of phone-hacking targets that increasingly resembles a chronology of the most tragic episodes in the UK's recent past.

The country's media are rarely as unified as they have been in the past four weeks. Condemnation of the shocking revelations has been universal. Sifting through the voice messages of grieving families marks the very worst of journalism. There is no public interest here.

Thursday was also the day that Lord Justice Leveson launched his inquiry into the "culture, practices and ethics of the press", which seems likely to usher in a renewed period of sober introspection among the press which will require the asking of some fairly basic questions, such as: can phone-hacking by journalists ever be justified?

Soon after The Guardian revealed that Milly Dowler's voicemails had been illegally accessed, a tabloid journalist who blogs under the pseudonym "Fleet Street Fox" posed a hypothetical question. If you were a journo, she said, and you got a tip-off that Andy Coulson had just left a message on Rebekah Brooks's mobile incriminating them both in phone-hacking, would you try and get to the recording?

The Fleet Street Fox was under no illusion about what she'd do. "I'd hack the phone," she wrote. "You'd probably hack the phone. Heck, Jeremy Paxman, Alan Rusbridger, Woodward and bloody Bernstein would all hack that phone."

Paul McMullan – the News of the World's deputy features editor between 1994 and 2001, and leading phone-hacking whistleblower – has made it clear he doesn't think the practice is inherently wrong. "I've always tried to write articles in a truthful way," he has said. "What better source for getting the truth than listening to someone's messages?"

Comedian Steve Coogan was on hand to slap down the former hack, calling him a "walking PR disaster for the tabloids". In doing so, Coogan tapped into a public sentiment that is pretty much universally held: that phone-hacking by a journalist, in any scenario, for any reason, is always 100 per cent wrong.

The reason the scandal took off in the public mind was the evidence relating to Milly Dowler, which was abhorrent and wholly unjustifiable. But the fact that it took a case of such seriousness for the issue to take off is evidence that the morality of phone-hacking in journalism is not always so black and white. How would the public react, say, if it was revealed that as well as deception and secret filming, accessing voicemails helped the News of the World expose the match-fixing by Pakistani cricketers which won the paper Scoop of the Year at the 2011 Press Awards? Surely, in that case, there was a public interest?

What would we think if it became apparent that recorded messages had also been crucial in busting the criminals Mazher Mahmood (the "Fake Sheikh") boasted of putting behind bars in the paper's final edition? In these cases, does the corruption and illegality eventually exposed justify the means?

Even though there is no "public interest defence" in the Regulation of Investigatory Powers Act 2000, which outlaws phone-hacking by private individuals, prosecutors would still have to decide whether it is in the public interest to proceed. There is always the possibility of a jury returning what lawyers call a perverse verdict if they consider the ends justify the means.

And here we reach the real crux of this debate: how should public interest be defined, and how can journalists be held accountable to it? The Press Complaints Commission has a written definition of public interest in its Editors' Code of Practice, but clearly it has completely failed to deter journalists. So often what interests the public – celebrity sleaze stories, the latest football transfer dealings – has masqueraded as public interest. Baroness Buscombe's announcement on Friday of her intended departure as the PCC's chairwoman just acts to confirm this failure.

We are fooling ourselves if we think journalists – even the cleanest investigative journalists – don't often find themselves pushing the boundaries of legality in the pursuit of a story. Following a lead is inherently unpredictable and journalists have a whole range of tools in the box that they can reach for if they believe the situation warrants it. The need for hacks to make those on–the-spot value judgements about method isn't going to go away in the future.

What we need, as Lord Justice Leveson has acknowledged, is a tight and workable definition of public interest to which journalists can subsequently be held accountable. Let us be clear – the practice of phone-hacking is no more inherently evil than the blagging of personal data, illegal since 1994, or the theft of revealing documents (an irony that Rupert Murdoch alluded to when he mentioned the Telegraph's MPs expenses files at the recent select committee hearing). It is the scenario in which these methods are used, and not any ingrained rightness or wrongness, which must determine their legitimacy.

To do that, transparency is needed. To my knowledge no public interest claim has seriously been made to defend any of the hacking stories that have emerged. The fact that phone-hacking was pushed into the shadows and outsourced to private investigators simply shows that people knew it was unjustifiable. There it lay, undetected and – when eventually dragged under the spotlight – apparently actively covered up. This must never happen again.

But if an editor or journalist believes that accessing a voicemail is warranted by public interest, and is willing to openly stand by the methods adopted in getting a story subsequently in the writing of the story, then surely simply removing that weapon from his arsenal would be debilitating. Ruthlessly fishing for stories, as the News of the World did, is not justifiable, but seeking to corroborate a strong suspicion of malpractice may well be.

Phone-hacking, as with all of journalism's dodgier methods of investigation, may on occasion be legally and morally justified in the public interest. The key challenge for Lord Justice Leveson is to work out how to implement the transparency desperately needed in the industry, creating a definition of public interest that every story and editor can be challenged against.

As the inquiry analyses this issue in the coming year, Lord Justice Leveson would be wise to avoid the vilification of any one method and focus on the wider problem: how future journalists can be best held to account.

Ben Riley-Smith is a reporter for 'The First Post'; @benrileysmith