In an unprecedented move to demonstrate that they had their house in order, News International set up an independent body to review their archives in order to unearth evidence of wrongdoing, thus emails, phone records and details of payments to sources were handed over to the Police. The evidence uncovered by News International was reviewed and used by the Police to bring charges against journalists employed by the organisation.
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.
Ultimately the matter went to the Court of Appeal, whilst other cases were still live and the Court of Appeal in R v Chapman and others  EWCA Crim 539 set down the law in a detailed judgment.
The Court held that in determining the third limb of the offence – the degree of abuse of trust in the office holder – a jury had to be told that the conduct was such that it called for condemnation and punishment, the jury secondly had to be told that there was a requirement that the misconduct must be judged by them as having the effect of harming the public interest. In judging the harm:
“The jury must, in our view, judge the misconduct by considering objectively whether the provision of the information by the office holder in deliberate breach of his duty had the effect of harming the public interest. If it did not, then although there may have been a breach or indeed an abuse of trust by the office holder vis a vis his employers or commanding officer, there was no abuse of the public’s trust in the office holder as the misconduct had not had the effect of harming the public interest. No criminal offence would have been committed. “
Thus the Court of Appeal effectively created a defence of public interest, just as many journalists had argued all along.
The judgment of the Court of Appeal led to the quashing of three convictions and forced the CPS to review all outstanding cases against journalists, the net result is that so far out of 27 journalists arrested not one conviction after trial remains- the juries have either acquitted or the Court of Appeal has overturned convictions.
Should this law have been used to prosecute the journalists?
Clearly not; the Court of Appeal judgment is critical of the CPS and its use of a 13th Century law. Juries have rightly been slow to convict any journalist just doing their job in exposing wrongdoing in the public sector. If this law had been enforced as the CPS wished, the MPs expenses scandal would never have come to light, the Hillsborough Inquiry would not have happened and myriad stories unearthed by whistleblowers and published by investigative journalists would have been buried.
The cost so far of Operation Elveden is £23 million. The cost to journalists who have had their lives placed on hold for years, been arrested, suspended and forced to endure lengthy trials is incalculable. The Police and CPS got this one wrong; thankfully, the Court of Appeal got it right and put an end to the witch hunt.