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June 9, 2015

Despite Elveden climbdown, paying public officials for stories more legally dangerous than ever

By David Spens QC and Tom Coke-Smyth

Despite an apparent climbdown from Operation Elveden, the risk of a criminal prosecution for paying public officials for stories, even when the story is clearly in the public interest, is now higher than ever for journalists.

On 22 May, Sun journalist Anthony France was found guilty at the Old Bailey of aiding and abetting misconduct in public office (MIPO) after his newspaper paid a police officer more than £22,000 for 38 stories over three years. France was sentenced to 18 months in prison (suspended) on 29 May.

This trial came less than a month after the CPS announced its decision on 17 April not to proceed against 14 journalists also charged with payments to public officials under this offence. It is clear that in the face of 13 prior acquittals by juries, Elveden has not been much of a success for the CPS so far as journalists have been concerned.

However, much of this could be said to be because of the offence under which they have been prosecuted rather than the facts against them. Many journalists have relied on the defence that the purchase of stories was in “the public interest”. Although it is impossible to know why a jury has acquitted, it seems likely that this has played a significant part.

What may now be of concern is that, despite what many will have seen as a vindication for the press, the legal goalposts as to what will constitute an offence by a journalist paying a public official have moved. Both the Bribery Act 2010 and Criminal Justice and Courts Act 2015 (CJCA) have significantly lowered the threshold for obtaining a conviction against a journalist for paying a public official.

The offence used so far in the Elveden cases has required that for a journalist to be guilty, he must have agreed with or aided or abetted a public official in doing something which amounts to misconduct in public office.  In the appeal of Lucy Panton, a News of the World journalist, and others, convictions were quashed by the Court of Appeal on the basis that the trial judge had not sufficiently outlined the high threshold for this offence to be made out.

The Court of Appeal confirmed that what must be proved is that the conduct of the public official actually “harms the public interest” and that the wrongdoing is sufficiently serious to merit criminal conviction. The offence was also subject to the established defence that the disclosure of information by the public official was in the public interest.

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The Bribery Act 2010, not in force at the time, has no such requirements. It is wide enough to cover all public officials as well as journalists paying them. All that it is necessary to prove is that a payment by a journalist to a public official was made so that he “perform improperly” his function. Disclosing information for money would be captured if it was done without “good faith” or “impartiality”, or in breach of “trust”.

The Act will allow a greater focus by prosecutors on the process by which the information has been obtained rather than its effect on the public interest. It does not appear likely that the defence that the story was in the public interest would be effective if the story were improperly sold.

The CJCA, in force as of 13 April 2015, creates a specific offence of police corruption which will inevitably capture journalists accused of paying officers under charges of conspiracy or aiding and abetting. Like the Bribery Act, there is no requirement of harm to the public interest and the public interest defence is even less likely to be successful.

The Act makes a police officer guilty of an offence if he has exercised his powers improperly and “a reasonable person would not expect the power or privilege to be exercised for the purposes of achieving that benefit or detriment”.

This means that, even if it was in the public interest to publish the story, the police officer and journalist could very well be guilty of the offence simply because it was improper for the police officer to be paid for it.

Given how low a threshold is now set for a journalist to be convicted under the CJCA it is perhaps disturbing that no concerns as to the impact of this new offence on journalists appear to have been raised in the evidence given during the Committee Stage of the Bill.

David Spens QC, assisted by Tom Coke-Smyth, both of QEB Hollis Whiteman, acted for Clive Goodman, the News of the World royal editor who was jointly accused of conspiracy to commit misconduct in public office with Andy Coulson on the basis that they allegedly bought telephone directories of the royal household from police officers. Following a hung jury at trial the CPS decided that it was not in the public interest to pursue a re-trial and offered no evidence.

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