Articles Criminal Defence 1st Jul 2015

Operation Elveden: A Sting In The Tail?

On 22nd May, Anthony France, a journalist at The Sun was convicted by a jury at the Old Bailey of aiding and abetting the 13th Century common law offence of Misconduct in Public Office. He did so by paying a police officer in excess of £22,000 for some 38 stories published during a three-year period. A week later he received a suspended sentence of imprisonment; the trial judge, HHJ Pontius, remarking that some of the articles that resulted from payments were “very much in the public interest” whereas others were “plainly chosen and published for their obviously salacious subject matter”. He went on,

“If there was a wrong culture…it is one not of (his) making. It was inevitably created by others for their benefit and sustained by others for their benefit”.

Subject to any appeal, it represents the only conviction thus far in respect of 27 journalists arrested under Operation Elveden. All have been either acquitted or had their convictions overturned save two journalists who face a retrial in September on a single count alleging payment to a named police officer. It is clear that to date and in respect of journalists, Elveden has not been regarded as a success for the prosecution authorities and has been described variously as a witch-hunt against the media.

Elveden was prompted by the Leveson Inquiry (2011-12) which heard evidence suggesting that a culture of paying public officials for stories existed among the tabloid press. Earlier in March 2003, the practice of payment to police officers for information had been publicly admitted by the then editor of The Sun while giving evidence on media intrusion before the Commons select committee for culture, media and sport. Notwithstanding such a high profile disclosure, the police, the prosecuting authorities and the Press Complaints Commission chose not to issue any warning to the print media. Indeed the PCC Editor’s Code and McNae’s Essential Law for Journalists, the industry’s bible, were conspicuously silent on the very topic choosing instead to prohibit payments to convicted criminals or witnesses. There was widespread suspicion that Elveden was partly in response to criticism of the police’s initial handling of their investigation into phone hacking by news international.

In Attorney General’s reference No 3 of 2003 [2004] EWCA Crim 868 the Court of Appeal set out the four elements of the offence of Misconduct in Public Office, namely

  1. A public officer acting as such
  2. Wilfully neglects to perform his duty and/or wilfully misconducted himself
  3. To such a degree as to amount to an abuse of the public’s trust in the office holder
  4. Without reasonable cause or justification

Under Elveden, most journalists charged accepted that public officials had received payment. In response they argued that the stories were commissioned and published in the “public interest”; a defence said not to be available to them. Accordingly, their defence rested largely on limb 3 above. Whether the conduct complained of in a particular instance amounted to an abuse of the public’s trust was a matter for the jury.

One further difficulty that emerged was the divergence of opinion as between judges presiding in different trials as to what needed to be proved in respect of the mens rea for the journalists. One judge was of the view that the journalist had to know that the public official was misconducting himself before he could be convicted of the offence of conspiracy to commit misconduct; whereas another directed that no such intention was necessary provided the journalist and the public official had agreed upon the course of misconduct.

In March, the Court of Appeal in R v ABC, EFG, IJK; R v Sabey [2015] EWCA Crim 539 concluded that the third element of the offence required proof that the misconduct went beyond a breach of duty or trust and had the additional effect of harming the public interest, either by reference to the content of information disclosed or the manner in which it had been obtained or provided to the journalist. Furthermore, that the conduct was such that it called for condemnation and punishment. In short, the appellate court had effectively sanctioned the defence of public interest, just as many journalists had submitted at trial and with which, in all likelihood, many juries in comparable trials had agreed.

Such comfort to journalists, perceived as a vindication of press freedom, could be short lived. The conduct complained of in Elveden predates both the Bribery Act 2010 and the Criminal Justice and Courts Act 2015 and which came into force on the 1st July 2011 and 13th April 2015 respectively. In the CPS Additional guidance on cases involving payments made to corrupt public officials by journalists, published in April 2015, it is suggested (para 4) that offences under the Bribery Act do not include the high threshold of harm to the public interest that is required for the offence of Misconduct in Public Office.

The Bribery Act is drawn sufficiently wide so as to cover all public officials as well as the journalists who pay them for information. The journalist must intend that the payment (financial advantage) induces the public official “to perform improperly a relevant function or activity” or rewards him/her for the “improper performance of such a function or activity” or knows/believes that the acceptance of the same would itself constitute such improper performance [section 1 (2-3)]. Improper performance is one, which amounts to a breach of an expectation that the public official will act in “good faith” or “impartially” or “in accordance with a position of trust” [sections 3 (3-5)]. For the purpose of deciding whether a function or activity has been “performed improperly” the test of what is expected is a test of what a reasonable person would expect in relation to the performance of that function or activity [section5(1)]. There is no express requirement that the acts were done corruptly or dishonestly or caused harm to the public interest.

Under the CJCA the position is similar albeit restricted to police constables. Section 26(1-4) creates a specific crime of corruption or other improper exercise of police powers and privileges. The offence is complete where committed by the police constable for the purpose of “achieving a benefit for him/herself or benefit or detriment for another person” and that a reasonable person would not expect the power or privilege to be so exercised. The section also covers the situation where a police constable fails to exercise such a power or privilege or threatens to do so [section 26(6-7)].

If the CPS Guidance is correct then where public officials receive future payments, prosecutions will be brought under the Bribery Act rendering the common law offence obsolete and restricting a journalist’s argument on public interest to representations made pre charge in applying the public interest test as to whether or not to prosecute.

Arguably such a stance is contrary to the spirit of the judgment in Sabey ante where the court acknowledged that,

“…In a democratic society the media carry out an important role in making information available to the public when it is in the public interest to do so…those employed by the state in public office will generally be in breach of the duty owed by them to their employers or commanding officers by providing unauthorised information to the press. However, information is sometimes provided by such persons in breach of that duty where the provider of that information may benefit the public interest rather than harm it…” [para 33].

Paragraph 12 of the CPS Guidance expresses a similar sentiment, albeit in the context of the common law offence,

“There will be cases where it is manifestly in the public interest to publish information…and the public interest in publication is likely to outweigh the damage to public interest in making payments to corrupt public officers”.

An often cited example is that of the MP’s expenses scandal where, reportedly, £150,000 was paid to the public official for the information readily accepted by all to have been properly disclosed to the press. Such paid whistleblowers would be at risk of conviction under the Bribery Act in the absence of a public interest defence.

The battleground is therefore likely to be that a public interest defence ought to be applied when a jury considers the question of a journalist’s intention to induce improper performance on the part of a paid public official. Until the courts have had the opportunity to rule on the issue, journalists may be well advised to take heed of the possible legal restraints imposed by recent legislation rather than applaud the general shortcomings of Elveden.

Martin Hicks QC and Christopher Ware acted for the former deputy news editor of The Sun, Ben O’Driscoll, and Daily Mirror journalist Greig Box-Turnbull, both of whom were acquitted in separate trials.

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