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March 30, 2016

After Elveden: Journalists who pay public officials for stories face conviction even if they act in public interest

By David Spens QC and Tom Coke-Smyth

The Metropolitan Police’s six-year investigation into payments made by journalists to public officials saw nine police officers and 25 others convicted at a cost of almost £15 million.

But these figures hide the fact that, in respect of journalists, the operation was largely a failure. Of 29 journalists charged, only two were convicted, one of whom pleaded guilty; the other, Sun reporter Anthony France, is currently appealing his conviction. These cases were prosecuted using the offence of misconduct in public office (MIPO), but laws introduced after the period of Elveden’s investigation significantly lower the bar to achieving the conviction of journalists accused of paying public officials.

A significant factor in Elveden’s failure to convict journalists was that the CPS underestimated how successful the public interest defence would be where MIPO was charged. Under MIPO journalists were able to rely on the defence that they may have paid a public official for a story but they could not be guilty of the offence, as publication of the information was in the public interest. It could not therefore be said that, as required by the offence, their actions “harmed the public interest”. It is likely that this is reflected in the high number of jury acquittals after trial.

However, CPS guidance now recognises that a journalist can simply be prosecuted under the Bribery Act 2010. This can capture journalists and employees of private companies paying public officials, with a maximum potential penalty, if found guilty, of up to ten years’ imprisonment.

The other offence which substantially changes the landscape is the new police corruption offence (section 26 Criminal Courts and Justice Act 2015). This would also capture journalists accused of paying police officers to disclose information. Under both laws there is no such recognised or tested public interest defence readily available as there was under MIPO.

To see how it is likely to work, imagine that a civil servant from the Home Office sells a journalist documents which reveal that senior politicians knew about serious breaches of security in prisons but did nothing.

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The journalist knows that the official is in breach of his duty just by meeting him, let alone swapping information for money. Publication of the story is in the public interest but, were the journalist to be prosecuted under the Bribery Act for paying the public official for this, the public interest defence would not explicitly arise. The prosecution would only need to prove that the journalist paid the public official to perform his function improperly and they would argue that this would be the case, irrespective of whether the information was in the public interest.

A journalist accused of paying a police officer for information in the public interest is likely to face an even greater challenge. Again the prosecution would only need to prove that the police officer performed a function improperly in passing on the information, but here, the wording of the statute is such that an offence could be made out even if the police officer was not paid. As with the Bribery Act, there is no explicit provision of a public interest defence which could be taken up by a journalist accused of paying a police officer.

In short, The Bribery Act and the new police corruption offence mean that the prosecutor gets to assess the public interest when deciding whether to prosecute, rather than this being part of a statutory defence which would be judged by the jury as part of their deliberations at trial.

The journalist paying for information from a public official, now more than ever, faces not just the threat of prosecution as they did under Elveden, but the more likely outcome of conviction after trial. This leaves the future of the public interest defence, as relied on in Elveden, in a more uncertain position than ever.

David Spens QC and Tom Coke-Smyth are both barristers at QEB Hollis Whiteman.

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