|Journalists were prosecuted for aiding and abetting misconduct in public office|
by inducing police officers to leak information
The Law Commission has announced a review into the law on misconduct in public office saying that the offence is too vague. In particular, the Commission says that the terms “public office” and “misconduct” are not well defined, which makes it difficult to know who is or is not in a public office and what conduct is or is not misconduct.
This report appears to have been inspired by a number of failed prosecutions of journalists for aiding and abetting misconduct in public office.
What does the law say?
We will take this question in stages, working through the definition of the offence as it currently stands to see how clear (or murky) this offence really is.
Misconduct in judicial or public office is a judge-made crime, meaning that it was not created by any Act of Parliament and so is defined wholly according to cases that have come before the courts over the years.
The leading case is the AG’s Reference (No. 3 or 2003), in which Pill, LJ gave judgment stating that the offence is committed when:
1. A public officer, acting as such;
2. Wilfully neglects to perform his duty and/or wilfully misconducts himself;
3. To such a degree as to amount to an abuse of the public’s trust in the office holder;
4. Without reasonable excuse or justification.
Who is a public officer?
The court went on to say that a public officer is somebody who has a duty to fulfil one of the responsibilities of government to the extent that the public at large would have a significant interest in its proper discharge. This does not require the person to be paid for holding his position, which clearly encompasses lay magistrates and special police constables. In R v Mitchell (William), the court of appeal concluded that a paramedic is not a public officer because he owes duty to the individual patient and while the public at large may be concerned at the breach of a duty to an individual that is not the same as a general duty to the public. Contrast that with the duty of a police officer or judge whose roles are to serve everybody not any particular individual.
What counts a misconduct and an abuse of the public’s trust?
A few things are obvious from the wording in AG’s Reference (No. 3 or 2003), first this must be a wilful failure to act or a wilful misconduct – so that would appear to exclude any mistakes or inaction where the office holder did not know there was a duty for him to act.
In AG’s Reference (No. 3 or 2003), Pill, LJ made clear that the threshold for an act to cross from the merely ill-advised into the realm of misconduct would be a high one. To decide whether an act of omission is sufficiently serious, it is necessary to consider three things: i. the responsibility of the office and its holder; ii. the importance of the public objectives they serve; and iii; the extent and nature of the departure from those objectives.
The linked cases of R v Chapman and R v Sabey, told us that a breach of trust by an employee against their employer is insufficient. So, a situation in which a PC relays to a journalist information intended to remain confidential within a police investigation, such as information given to him during a briefing, is unlikely to be an act serious enough to amount to a crime.
Chapman and Sabey, are really concerned with what the jury should be told by the trial judge, i.e. what directions they should be given, but this does a lot to give us an idea of the correct position in law. The jury should be told to consider whether the misconduct was sufficient serious so that it could amount to an abuse of the public’s trust. In deciding this, the jury should consider whether the act of the defendant had the effect of harming the public interest. If it did not, then no crime was committed.
This is called a fudge. Whenever I imagine their Lordships sitting down to draft a judgment like this, I can’t help but picture them feasting on warm sticky chocolate fudge puddings – maybe accidentally pushing a finger through and getting the sticky fudge stuck to their fingers and that spilling over into their judgment. Why do I imagine that? It’s because this is one of those areas where they’ve thought to themselves, “this is way too hard to define… we’ll leave it to the jury”. In a lot of cases, that’s a perfectly proper thing to do because so much can turn on the individual facts of a case so maybe we’ll let them off this once.
What the Hell does “without reasonable excuse or justification” mean?
This is one of those rare occasions in which I find myself in slight disagreement with their Lordships and wondering what they were thinking when they considered this point. In R v L(D), the Court of Appeal found itself confused as to whether “without reasonable excuse or justification” is actually an ingredient of the offence and, if so, what it means. Leveson, LJ said, “the words ‘without justification or reasonable excuse’ only served as an expansion of the word ‘culpably’… it would have been appropriate for the judge to explain that the phrase “without justification or reasonable excuse” meant no more than acting culpably or in a blameworthy fashion.”
The words “without reasonable excuse” are also found in section 7(6) of the Road Traffic Act 1988 when they said, “A person who, without reasonable excuse, fails to provide a specimen when required to do so in pursuance of this section is guilty of an offence.” In motoring law, a defendant who wants to rely on a reasonable excuse must raise it as a defence but it is then for the Crown to disprove so that the court is sure
To my mind, it is difficult to see how “without reasonable excuse” could be simply an expansion of the word “culpably”. It is, in my opinion at least, clearly a defence to the allegation. Albeit, one that when raised the Crown must negative to prove their case.
So, should the law be amended and if yes, then how? Well those are questions for cleverer people than me. Certainly, I can see why the Crown Prosecution Service might want to clarity as to who is a public officer but I wonder whether a prescriptive list might not lead to some perverse decision in the future where somebody who looks to all the world like a public officer cannot be prosecuted because his job ain’t on the list. Although the current law fudges the question of the degree of the abuse of the public’s trust I also cannot see Parliament putting in place a better system than leaving the question to the jury – we are, after all, members of the public whose trust the Crown says has been abused. There may well be scope for clarifying what is or is not a defence to the allegation, although as we saw in the Road Traffic Act, Parliament was not keen on setting out a test to be applied and left the question to the courts.