Misconduct in public office

Some sectors of the press have loudly condemned the decision of the Crown Prosecution Service (CPS) to prosecute journalists in relation to payments made to corrupt public officials.

The acquittals of a number of journalists have recently led the CPS to review Operation Elveden and issue further guidance.

Operation Elveden is a Metropolitan Police Service investigation that revealed payments made to public officials by journalists for information. It followed two parliamentary committees and the Leveson inquiry, which revealed serious questions over the techniques used by some newspapers, which may have amounted to systematic and flagrant breaches
of the law.

The CPS has said that the range and circumstances of this activity were on a scale not previously encountered by the police or the CPS.

A recent CPS statement acknowledges that a free press is ‘paramount in any democracy and
the prosecutions against the journalists involved were considered very carefully’. However, the investigation revealed widespread payments to corrupt officials, and in many cases the CPS authorised prosecutions.

Corrupt officials

Twenty-one public officials have been convicted. These individuals were (according to the CPS) motivated by greed and self-interest; they were not whistleblowers or individuals acting out of a sense of civic duty.

The investigation revealed corruption in areas where the public should be entitled to expect confidentiality: police officers trusted with safeguarding public safety; prison officials with oversight of society’s most vulnerable and most dangerous inmates; army officials; and others.

Police officers (and other public officials) exercise significant powers over ordinary citizens, and they have access to confidential databases containing the details of victims and witnesses.

It is of the utmost importance that the incorruptibility of public service and the integrity of our police, prisons, and army in serving the public are protected by the law, and the CPS says the convictions to date are testament to that.

Misconduct in public office

Some trials against journalists have proved problematic. A major factor was the use of an ancient common law offence, misconduct in public office. The law can be traced back to the 13th century, though the development of the present offence began in 1783 in the judgment of Lord Mansfield in R v Bembridge.

More recently, in Attorney General’s Reference
No 3 of 2003 [2004] 3 WLR 451 (after an extensive review of the authorities), the court formulated
the elements of the offence as follows:

• a public officer acting as such;
• wilfully neglects to perform his duty; and/or wilfully misconducts himself;
• to such a degree as to amount to an abuse
• of the public’s trust in the officeholder; and
• without reasonable excuse or justification.

A number of journalists were charged as aiders
and abettors or conspirators. Appeals against some convictions were heard in March 2015 by the Court of Appeal (on appeal from the Central Criminal Court), when the legal complexities, specifically
the mens rea required for an aider and abettor, were examined.

The Court of Appeal was not satisfied with the directions given to the juries by judges in some cases and some convictions were quashed.

The court said that it is not enough that the public office holder has misconducted themselves; it must also be shown that the misconduct was not simply a breach of duty or breach of trust but had the effect of harming the public interest.

The Court of Appeal has also discouraged the use of conspiracy charges in cases where a corrupt official has received payments from a journalist.

It seems that in future similar cases will fall to be decided under the Bribery Act 2010 rather than the old common law offence.

Under this law a person who pays someone money to breach their position of trust (whether to a public body or a private employer) is guilty of the offence of bribery.

CPS guidance

In a number of cases, the CPS has decided not to pursue prosecutions against certain journalists,
but cases against others are proceeding, and indeed, in some cases, there are due to be retrials.

The CPS guidance states that public officials
who flagrantly breach the trust of the public for payments do cause real harm to the public interest. Provided there is sufficient evidence to do so, prosecution in such circumstances will, therefore, almost always be in the public interest.

The guidance recognises that there may be cases where prosecution of journalists may not always be in the public interest. However, the guidance states in clear terms that nothing in the statement should be taken ‘as an indication that payment to a public official by a journalist is acceptable behaviour or they are immune from prosecution’. Every case
will be considered on its merits.

It is necessary to consider the facts and circumstances as the aider and abettor knows
them to be. There may be circumstances where the journalist has a clearer idea of the public interest in
a story, which may reduce the seriousness of the misconduct which was being aided and abetted.

The guidance recognises that there will be cases where it is manifestly in the public interest to publish information and where this is likely to outweigh the damage to the public interest in making payments to corrupt public officers. In these circumstances, there is unlikely to be a realistic prospect of a conviction for the offence of misconduct in public office, and, in any event, a prosecution would not
be required in the public interest.

Press reaction

After the acquittal of a number of journalists accused of bribing public officials and the dropping of charges against others, the national press launched what one commentator has described as a ‘shameful campaign of disinformation’, suggesting that Operation Elveden has been a failure. The press has suggested that the payments were small and no harm was done, and that journalists have been victimised. It has even been claimed that the prosecutions were a threat to free speech.

The CPS position is that the police inquiry was inevitable in view of the serious questions raised
by the parliamentary committees and the Leveson inquiry, as was the subsequent duty on prosecutors to decide if the evidence was sufficient to prosecute.

The CPS claims it made every effort to provide advice on charges as quickly as possible.

As the CPS guidance makes clear, there is strong public interest in maintaining impartial and incorruptible public services.

The CPS said that the introduction of new offences under the Bribery Act and the new offence of statutory police corruption mean different considerations may apply to similar cases in future. Consideration is being given to additional specific guidance in relation to use of the Bribery Act.

Public interest defence

Elveden resulted in the conviction and imprisonment of 21 public officials for misconduct in public office. This is a serious offence involving, in most of the cases, the sale of information held
in trust for the public. The officials included police officers, prison officers, a Ministry of Defence official, and others.

Most journalists admitted paying public officials. Their defences were technical, notably whether
the journalists fully understood that the officials were breaking the law by accepting payment.

Sums paid by journalists to officials were not small. A Ministry of Defence official received over £100,000 and a prison officer £40,000. A Sun reporter paid more than £22,000 to a counter-terrorism police officer.

Much of the evidence for the prosecutions
was provided to the police by the company
that employed most of the journalists –
News International, now News UK. Given this information, the CPS was obliged to take action.

While juries have recently shown a reluctance to convict journalists where there is even the remote possibility that their investigations included something which may have been in the public interest, Ken Clarke, the former Conservative justice secretary, is on record as saying that he is ‘not persuaded’ that journalists should have a specific right to a public interest defence when they paid for stories.

His comments were made well before the recent Court of Appeal decisions and guidance by the CPS, but they are still relevant. Clarke said that prosecutors already take into account whether it is in the public interest to bring charges and he made the point: ‘We are all subject to the rule of law and that should be enforced. Prosecutions will only be brought under the Bribery Act if there is a public interest in bringing the prosecution. It is true with all prosecutions. The prosecution will be at the discretion of the director of public prosecutions…that it is in the public interest to bring that prosecution.’

Despite the furore, journalists who make payments to public officials continue to face the real prospect that they may be subject to criminal charges, and it is probably more likely that those charges will result in convictions where they are brought under the Bribery Act 2010. SJ

Steven Heffer is a partner at Collyer Bristow

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