Sun, 26 Apr 2015
Excerpt of article written by Michelle Heeley for Halsbury's Law Exchange.
Operation Elveden was prompted by evidence heard at the Leveson Inquiry which suggested there was a culture of tabloid newspapers paying public officials for stories. At a time when the tabloid press was being vilified for intruding in people’s private lives through phone hacking, this was seen as further evidence of out-of- control journalists, ignoring the law for their own gain.
What were the legal issues?
The charge that the Police and CPS chose to use was committing misconduct in public office. This is an offence that can only be committed by those in public office, which in itself is not defined exhaustively in law – certainly a journalist is not a public official – therefore where a journalist could be shown to have paid a public official the journalist was charged with conspiracy to commit misconduct in public office.
The difficulty many journalists faced was that there was no definitive description of what constituted misconduct, the case law defines it as follows (Attorney General’s Reference (No. 3 of 2003)  2 Cr App R 23,  QB 73):
i) a public officer acting as such
ii) wilfully neglects to perform his duty and/or wilfully misconducts himself
iii) to such a degree as to amount to an abuse of the public’s trust in the office holder
iv) without reasonable excuse or justification.
Whether the conduct in each individual case amounted to an abuse of the public’s trust in the office holder was a matter for the jury.
For those journalists who accepted that they had knowingly paid public office holders, for example prison officers, their defence rested upon limbs 3 and 4 of the offence, arguing generally that the stories that were published contained facts which the public ought to know, therefore the abuse of the public’s trust was not so great so as to warrant criminal sanctions and further there was a reasonable justification for breaching the trust – this became known as the public interest defence.
There was a difficulty in that the offence of misconduct in public office had not been charged as a conspiracy before, and there was a divergence of opinion between judges trying different trials as to what the mens rea for the journalists was, one judge took the view that the prosecution did not need to show that the journalist even knew or intended that the public officer be misconducting himself, as long as the jury found that the public officer had committed misconduct the journalist would be guilty if they had agreed upon that course of conduct – even if they did not know it was an offence. Another judge decided that the journalist had to know that the public official was misconducting himself before the journalist could be guilty of a conspiracy.
The difficulty was that there was no actual “public interest” defence for the journalists, thus no matter how worthy the stories on one reading of the differing judgments the journalists would be convicted.