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  1. Media Law
April 20, 2015

CPS guidance over misconduct in public office: Payments for ‘tittle tattle’ unlikely to result in prosecution

By Dominic Ponsford

The Crown Prosecution Service has indicated that journalists are unlikely to face prosecution for misconduct in public office in future for cases which do not involve police officers.

However, for payments to public officials (and other employees) made after 1 July 2011, journalists could still face prosecution under the Bribery Act 2010, which does not have a public interest defence.

The new guidance follows a Court of Appeal judgment two weeks ago quashing the conviction of former News of the World journalist Lucy Panton over payments to a prison official for stories alleging special treatment for killer Jon Venables.

On Friday, three Sun journalists and a former Mirror journalist were acquitted by a jury of conspiracy to commit misconduct in a public office over alleged payments to public officials.

In addition to the police costs associated with Operation Elveden – widely reported to be an estimated £20m – Saunders said the CPS had spent £1.3m.

Speaking on Channel 4 News, director of public prosecutions Alison Saunders defended the expense, noting that the prosecutions came in the wake of the Leveson Inquiry which highlighted "the way people had paid public officials who aren’t expected to be paid for their stories".

She said: "This wasn’t about whistleblowing, this was about corrupt officials who were paid for their stories.

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"At the time we made the original decisions they were made in accordance with guidance that we had widely consulted on…The law has evolved and we have looked at it in accordance with guidance that’s been handed down from the Court of Appeal two weeks ago.

"The judgment is very clear about the seriousness and the high threshold of the best but also about not just looking at the benefit and the public interest in stories but also at the harm that was caused. That’s a different question that was phrased. So we supplemented our guidance and we applied our guidance."

The new guidance states the CPS will no longer use the charge of conspiracy to commit misconduct in public office against journalists who pay for stories, but aiding and abetting. It says:

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.

It adds:

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.

In cases that involve information between these extremes, such as “gossip or tittle tattle”, the CPS said: “It is unlikely to be in the public interest to prosecute".

The CPS makes clear that payments to police officers are seen as particularly serious.

It says: “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.

“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.”

Some 21 public officials have been convicted under Operation Elveden so far (for selling stories to journalists) with a further seven awaiting trial. The CPS described them as “corrupt individuals motivated by greed and self-interest”.

The CPS said: “Nothing in this statement should be taken as an indication that payment to a public official by a journalist is acceptable behaviour or immune from prosecution – any case referred to us for consideration of criminal charges will be very carefully considered on its own facts and merits in accordance with published guidance.

“This new guidance only relates to the offence of Misconduct in Public Office arising from Operation Elveden. The introduction of new offences under the Bribery Act and the new offence of statutory police corruption means different considerations may apply to similar cases in future. We will be considering specific guidance in relation to use of the Bribery Act in these circumstances in the near future, on which we intend to consult publicly.”

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