The proposed new section 66AA(5) of the Sexual Offences Act 2003 states that: “It is a defence for a person charged with an offence under subsection (1) to prove that the person had a reasonable excuse for taking the photograph or recording the film”.
This would be a fact-sensitive decision to be made by the court on a case-by-case basis.
That said, the position of a journalist working undercover is one of the situations in which the Government has envisaged that the defence might apply.
The public-facing CPS Legal Guidance Assessing the Public Interest in Cases Affecting the Media [Media: Assessing the Public Interest in Cases Affecting the Media | The Crown Prosecution Service] provides further guidance to prosecutors in dealing with scenarios such as this, including the application of the Public Interest Test.
Therefore, any journalist being investigated for an offence would also be entitled to make representations to the Director of Public Prosecutions, relying on the Legal Guidance, that a prosecution should not take place because it did not meet the Full Code Test for prosecution.
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