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21 January 2016

Calls to Abolish Offence of Misuse in Public Office

The offence of misconduct in public office should be repealed or radically reformed, the Law Commission heard yesterday.  

The growth in use of the historic common law offence, uncertainty of application, liability to misuse and consequent threat to whistleblowers and journalists were repeatedly highlighted at a symposium of leading lawyers, academics, politicians and standards authorities, accompanying the launch of the Law Commission’s consultation on review of the offence.

As leading criminal barristers Claire Montgomery and James Hodiva pointed out the application of the offence was so uncertain that even a public official could not know that they had committed a criminal offence until they had been convicted for it, while the position of journalists or spouses were even more difficult. 

Head of editorial legal services at Associated Newspapers, Liz Hartley, said it was not fit for purpose and should not apply to journalists. The Law Commission acknowledged that Operation Elevenden had brought the problems with the offence into especially sharp focus, with high profile trials and the Court of Appeal decision in Chapman leading to a number of prosecutions against journalists being discontinued.

At the symposium, Liz Hartley called for the abolition of the offence's application to journaltists. She said:"The ECHR and domestic Courts have recognised the vital importance of the role of the press as the eyes and ears of the public – the public watchdog. 

"The conduct leading to prosecutions of journalists for this offence is concerned with the acquisition and dissemination of information, -  their job -, what we expect them to do on our behalf. It is not, as for other convictions for this offence, the supply of prohibited substances to prisoners by prison staff, or sexual relations with vulnerable adults by police, or the death of a man through a police officer standing by and failing to intervene.

"Journalists are not above the law. There are several statutory offences in this context which of course apply to journalists, as well as to everyone else. The Bribery Act is at the forefront of everyone’s mind, and we are equally very alive to the DPA and Computer Misuse Act.   However with the exception of the DPA, none of these acts provide for a public interest defence for journalists.  This is a very real problem, both for the press, its legal advisers, whistleblowers  and prosecutors. Such a defence was supported by Sir Keir Starmer in an interview in the Times last year.

"So, there are criminal offences which regulate the acquisition and publication of information.  For these reasons, I would argue that this offence should not be continued even in an amended form for journalists.  With all of its uncertainties and ambiguity, it is no longer fit for purpose. Most journalists would never have heard of this offence, and if they had tried to research it prior to the Chapman case in the Court of Appeal they would have been none the wiser regarding their potential exposure to prosecution. In the Shayler case, Lord Bingham commented that “the role of the press in exposing abuses and miscariages of justice has been potent and honourable” and warned that “the press cannot expose that of which it is denied knowledge." 

Ms Hartley described the impact of the current law upon those trying to disclose what the public were entitled to know form the state.

 “To be the eyes and ears of the public, journalists need to be able to find out what is going on, they must get to know people and learn what the various departments of state, public officials and bodies carrying out functions on behalf of the state do not wish to tell us, but which the public are entitled to know.  They carry out a vital role in a democracy. 

“Their information comes from a wide variety of sources which include anonymous tips, leaked documents, confidential sources, whistleblowers, off the record briefings, on the record briefings.”

Ms Hartley argued that even if the offence were not abolished, as she advocated, it required complete recast, at the very least, requiring the prosecution to prove that the conduct at issue was not in the public interest.

“If journalists are going to continue to face potential prosecution for obtaining information, some unsought, there must be a public interest defence.  The offence should be defined and limited with precision to enable individuals to understand and foresee whether their conduct will expose them to prosecution.

 “Secondly, I would argue that any offence should put the burden on the prosecution to prove that the conduct in question was not in the public interest, or at the very least, that the public interest in the acquisition of the information should be a defence.”

The NMA has been involved in the consultations and will be responding to the paper.