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Additional guidance on case involving payments made to corrupt public officials by journalists

Introduction

  1. This note provides guidance to prosecutors on prosecuting public officials, journalists, and others for the Common Law offence of Misconduct in Public Office, arising out of Operation Elveden, the police investigation into the payment of corrupt public officials by journalists for information. The guidance should be read together with the Guidelines for Prosecutors on Assessing the Public Interest in Cases Affecting the Media (the Guidelines). 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:
    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
  2. The Court of Appeal, in R v ABC, EFG, IJK; R v Sabey [2015] EWCA Crim 539, has provided further guidance as to how a jury should approach element three, above, in the context of cases where information was being supplied by public officers to the media. It is not enough that the public officeholder has misconducted themselves for the offence of misconduct in public office, 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. In the context of Operation Elveden, the public interest can be sufficiently harmed if, for example, either:
    1. the information disclosed itself damages the public interest, for example, by leaking a sensitive section of the Budget, the advance leaking of which could result in financial damage to the economy
    2. the manner of obtaining or providing the information damages the public interest, for example, because the information was provided for payment in breach of duty
  3. The Court of Appeal, in R v ABC, EFG, IJK; R v Sabey [2015] EWCA Crim 539, has also discouraged the use of conspiracy charges in cases where a corrupt police official has received payments from a journalist. Prosecutors should therefore consider charging the principal offender with the offence of misconduct in public office, and those who make or facilitate those payments with aiding and abetting the principal offender.
  4. It is important to note that the conduct uncovered by Operation Elveden predates the Bribery Act 2010 coming into force. Offences under the Bribery Act 2010 do not include the high threshold that is required for the offence of Misconduct in Public Office.

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The decision to prosecute the principal offender

  1. There is a strong public interest in maintaining the integrity and incorruptibility of public office holders. Public officers who take payments for providing information cause harm to the public interest by fundamentally betraying and undermining the trust that is placed in them by virtue of their office.
  2. Public office holders are well-placed to understand the sensitive nature of their employment and the contractual and in some cases statutory, framework under which they operate, which requires them to maintain the confidentiality of the information they hold. In addition, public office holders will have a clear understanding of the harm caused to both their organisation and the wider public by their corruption. This may, for example, include the harm caused to the disciplinary regime in a prison or the morale in units of the armed forces.
  3. Not all public officer holders who accept corrupt payments need be prosecuted. In some cases, disciplinary action by the employer may be a suitable and proportionate response to the damage caused to the public interest.
  4. In other cases an assessment of the public interest served by the release of information may fall within the types of conduct identified in paragraph 31 of the Guidelines in assessing the public interest in cases affecting the media. However, in cases where there have been substantial payments, where payments have been sustained over a period of time, or where the information itself damages the public interest, including cases where medical or other confidential information about members of the public is disclosed, the public interest will tend towards a prosecution. Different considerations apply in respect of public office holders who are police officers.
  5. Police officers are entrusted with a great deal of power and discretion, and exercise these powers with the public at large. They regularly receive confidential information from the public, as victims and witnesses about crimes and other traumatic events. The public rightly believe they can rely on the integrity and incorruptibility of police officers to protect their privacy. In addition, and unlike many of the public office holders, the police have access to powerful databases, which store confidential information and hold it securely for police purposes. Corrupt police officers who have access to these databases and confidential information, and misuse the information by selling it to journalists and others, do profound harm to the public interest in maintaining confidence in law and order. For this reason, unless the factors in paragraph 31 of the Guidelines apply, the public interest will usually require the prosecution of a corrupt police officer.

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Prosecuting Aiders and Abettors

  1. The position of a journalist in respect of an allegation of aiding and abetting misconduct by a corrupt public office holder, who accepts payment for passing information, requires separate and distinct consideration from that of the principal offender.
  2. It is necessary to consider the facts and circumstances, as the aider and abettor knew them to be, including the circumstances which it is alleged resulted in the conduct being so serious as to amount to the third element of the offence of misconduct in public office. Compared to a public officer, a journalist may well have a more limited knowledge of the circumstances that increase the seriousness of the misconduct, such as the harm caused within a public body of the leaking of information. Additionally, in comparison to a public officer, a journalist may have a clearer idea of the public interest in a story which may reduce the seriousness of the misconduct which was being aided and abetted.
  3. There will be cases where it is manifestly in the public interest to publish information, for example, where the information reveals undetected crime, or gross failure by a public service, and the public interest in publication 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.
  4. Equally, there will be cases where the information will manifestly harm the public interest, for example, by 'leaking' a sensitive section of the Budget, the advance leaking of which could result in financial damage to the economy. In these cases, the public interest harmed by the payment to a corrupt public officer will be further aggravated by the harm of the revelation of the information itself. In these cases, the public interest will usually require a prosecution.
  5. In very many cases, the public interest in the information falls between these two extremes. The information will often not harm the public interest because it is effectively gossip, or tittle tattle, and it may have some public interest but not reach the high standard of public interest described in paragraph 31 of the Guidelines. In these cases, the balance needs to be carefully weighed, and in cases where the competing considerations are finely balanced, it is unlikely to be in the public interest to prosecute. A decision not to prosecute in these circumstances should not be seen as a sign that payments to corrupt officials are condoned. The offence of Misconduct in Public Office sets a high threshold for the offence that is not a feature of modern legislation. The offence of misconduct recognises a category of misconduct that can properly be dealt with by disciplinary or regulatory measures.
  6. It must be stressed that the nature of the common law offence of misconduct in public office requires a more subtle and complex analysis than would be required, for example, if offences under the Bribery Act were available.
  7. Special consideration needs to be given when the assessment of harm to the public interest described in paragraphs 13 to 15 above involves a case of making payments to a corrupt police officer. For reasons described in paragraph 10, the corruption of police officers is a potentially serious matter, as the public and journalists will be aware corrupt police officers seriously harm the public interest.
  8. This does not mean that any payment to a police officer by a journalist requires prosecution. A single modest payment by a journalist, which is not repeated and was unsolicited, may not require a prosecution. Equally, a long-term relationship with a corrupt police officer by making payments, perhaps over many years, will tend to favour a prosecution.
  9. The harm to the public interest in these circumstances will be aggravated where the information sold by the corrupt police officer includes information that victims and witnesses would rightly expect to be held in strict confidence.

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Applying the public interest test in the Code for Crown Prosecutors

  1. It is important to remember that although the offence of Misconduct in Public Office requires special consideration, particularly where journalists are involved, the general public interest factors in the Code are equally applicable to these offences. So, for example, issues such as, the passage of time, the culpability of the offender and the likely sentence should be considered in these cases as in any other.

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Charge selection and presenting the case

  1. In view of the complex issues involved in cases of Misconduct in Public Office involving payments by journalists to corrupt public officers, it is particularly important that charges are selected to present the cases and the issues in a simple and focused way. The Court of Appeal, in R v ABC, EFG, IJK; R v Sabey [2015] EWCA Crim 539, has already indicated the difficulties caused by using conspiracy charges for what should be more clearly charged as aiding and abetting. Equally, a clear focus on the actual issue at the heart of a case, which will more often than not be the actions of the corrupt public official and the payments made to them, will help present the case in a clear and simple way.

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