Operation Elveden, the CPS and the serious abuse of public trust

By James Doleman

The Crown Prosecution Service (CPS) decision not to seek a re-trial in the case of a former News of the World journalist, whose conviction was quashed by the Court of Appeal comes as no surprise. The reporter concerned, who cannot be named for legal reasons, had already served the relevant part of their sentence, home detention. So any further trial would seem to be rather pointless.

The same applied to the friend of the prison officer who had also served the bulk of their sentence. The CPS did however ask the Court of Appeal court to permit a re-trial of the prison officer who is alleged to have been the recipient of the journalist’s corrupt payments as his 42 month sentence still has the bulk time to run.  The Court of Appeal acceded to this request on Wednesday, 1st April 2015.

More interesting was the decision, announced at the Old Bailey’s Court Two yesterday, on the CPS’s application postpone the trial of a  journalist on  similar charge that was due to begin on the 30 March 2015. The prosecution barrister told the court that the CPS wished to review this case, and another eight pending trials and re-trials against eleven journalists and six public officials over allegations of misfeasance in a public office. The CPS was given until late April to carry out this review.

The Court of Appeal’s decision and the recent acquittals has clearly led to serious reflection in relation to the police investigation into alleged tabloid newspaper corruption, Operation Elveden. Despite nearly 30 public officials including police officers, prison workers, health workers and a Ministry of Defence civil servant being sentenced to prison for receiving payments from the tabloid press,  the vast majority of the journalists involved have walked free from court. This has led to widespread press criticism of the police and the CPS, led by The Sun, condemning Elveden as an ‘establishment witch-hunt against the popular press,‘ and repeated demands that the prosecutions cease.

However the Court of Appeal’s decision had nothing to do with the principle of a free press, instead it turns on the judge’s directions to the jury on a very narrow point of law the threshold of “seriousness” of the misconduct for this offence to be made out.  As the alleged offences precede the 2012 implementation of the Bribery Act 2010, the CPS has relied on the common law offence of “misconduct in a public office”, to prosecute Elveden cases. To be found guilty of misconduct for passing information to a newspaper a public official, among other things, must have “no reasonable excuse or justification,” and their misconduct or neglect of duty must be sufficiently serious to amount to an abuse of the public’s trust in the office holder. The Court of Appeal ruled that the judge in the relevant cases did not properly direct the jury on the latter point so quashed the convictions.

Where the line is between actions that might get you sacked and actions that might be a crime remains for juries to decide. The Court of Appeal has now made clear that judges should tell a jury that in cases of being paid for information they should consider if the public official’s actions were “worthy of condemnation and punishment,” and that the misconduct must be judged by them as having the effect of harming the public interest. An early test of how this will work will be the verdict in the case of three Sun and one Daily Mirror journalists which is being conducted under the new directions. The jury in that trial are expected to retire just after Easter.

The appeal court judgement was not all bad news for the CPS as it won on a procedural argument, and on the other two legal arguments. These were about whether the judge’s directions were correct in respect of what the required mens rea (mental element) was before those charged with aiding and abetting (or with conspiracy to commit) misconduct in public office could be found guilty.  A conspirator or aider and abettor would not have to have known that the conduct of the public official passed the criminal threshold discussed in the first issue, to be guilty of conspiring to, or aiding and abetting someone to, carry it out.

The Sun is continuing to campaign against the prosecution of the journalists who were originally reported to the police by its own parent company, News UK and to misrepresent the effect of the Court of Appeal’s decision. On Thursday Sun associate editor Trevor Kavanagh told the Today programme that “The Lord Chief Justice has effectively ruled that this was a possible employment breach, in other words a sacking offence and not a criminal offence. Because the Crown Prosecution Service has decided not to go for a re-trial it seems that they have accepted that view”

Both those statements were false.  Misconduct in public office is a criminal offence, not a sacking offence, provided that the misconduct is sufficiently serious and harms the public interest. Journalists who conspire with public officials or encourage them to commit serious misconduct will be guilty of a criminal offence.

Over the next few weeks prosecutors will decide not only how they should approach further trials or re-trials of journalists and public officials, but more fundamentally whether they should continue with the prosecutions at all.  The question they have to ask now remains the same as before the Court of Appeal’s decision: was the misconduct a serious abuse of public trust?


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