On 17 April, a jury at the Old Bailey delivered another blow to Operation Elveden, the Metropolitan Police’s £11 million investigation into payments made by journalists to public officials. After an almost five week trial, three former Sun journalists and a Daily Mirror journalist were acquitted of conspiracy to commit misconduct in a public office. Within hours of the acquittals, Operation Elveden largely unravelled with the CPS’ announcement that they were discontinuing the prosecution of nine other journalists who were awaiting trial and/or re-trial for similar offences.

After almost four years, only one journalist has been convicted on a guilty plea out of the 29 charged under Elveden. Thirteen were cleared by juries, while a further seven faced re-trial because juries were unable to reach a verdict as they grappled to apply a 700-year-old common law offence of conspiracy to modern journalistic practices.

Despite possessing all the hallmarks of a legal and political debacle, the CPS appears determined to salvage something from the debris of its investment and has emphasised the comparative conviction success rate of public officials compared with journalists indicted on the same charges.  To date, 21 of the 28 public officials charged have been convicted after receiving corrupt payments totalling £180,000. In the wake of the recent spate of acquittals of journalists, the CPS issued additional guidance on cases involving payments to corrupt public officials in which they reiterate the “strong public interest in maintaining the integrity and incorruptibility of public office holders”. This statement, coupled with the conviction success rate, signifies that the CPS’s focus has shifted away from Fleet Street and onto the holders of public office.

Notably, the new CPS guidance also seeks to distinguish between categories of public official, and elevates misconduct by police officers (as opposed to any other public official) as being “a particularly grave matter”. The guidance continues to set out that when weighing up the public interest in determining whether to prosecute, “different considerations apply” to police officers on the basis that they are “entrusted with a great deal of power” which includes access to confidential databases containing details of victims and witnesses of criminal offences. It is unsurprising therefore that the Crown decided to proceed with the prosecution of Sun reporter Anthony France for alleged payments to police officers. In addition, the Sun’s former News Desk Editor Chris Pharo and senior reporter Jamie Pyatt still face re-trial for conspiring to pay a serving police officer for confidential information, an individual who, incidentally, has pleaded guilty to the charges in respect of the same conduct. The Crown’s decision to abandon the case against two of Mr Pharo’s co-defendants for similar allegations is therefore curious and is likely to be partly attributable to evidential considerations.

The CPS’ shift in focus coincides with the introduction of section 26 of the Criminal Justice and Courts Act 2013 (in force 13 April 2015), which creates a new offence relating to ‘corrupt and other improper exercise of police powers and privileges’.

Under this new legislation, any police constable (including special constables) who exercise their powers or privileges improperly and know that the exercise of their power is improper, is guilty of a criminal offence. In the absence of knowledge, the threshold is met if a jury conclude that the officer ought to have known that he was exercising his powers or privilege improperly.

The offence is ambiguous and captures a broad range of misconduct. Section 4 explains that improper exercise can be defined as conduct that is exercised for the purpose of obtaining a personal benefit (including money) or to provide a benefit or detriment for another.

In addition, section 4 incorporates an objective test in that the improper conduct alleged must be such that a “reasonable person would not expect the power or privilege to be exercised for the purpose of achieving that benefit or detriment”. The incorporation of this test aligns itself with the ruling of Lord Chief Justice Thomas in R v ABC, EFG, IJK; R v Sabey [2015] EWCA Crim 539 in relation to the mens rea required for the common law offence of misconduct, the rationale of the objective test being that a person is deprived of the ability to make their own determination as to whether or not their conduct meets the threshold for criminal sanction.

In light of the introduction of this section, it is anticipated that any future prosecutions of police officers in respect of selling confidential information will take place under this statute which neatly side steps the difficulty experienced by jurors when attempting to get to grips with the complexity of the common law offence of conspiracy, which one senior judge recently commented was “difficult enough for lawyers to understand… [and is] proving to be the rock on which cases are floundering”.

Furthermore, although s11(4) of the Act specifically provides that “nothing [in the Act] affects what constitutes the offence of misconduct in public office at common law”, CPS policy dictates that “conduct falling within the terms of a specific statutory provision should be prosecuted under that provision unless there is good reason for doing otherwise”.[1] It is therefore almost a certainty that the charging of police officers under the common law offence will fall into abeyance and the charge of conspiracy will become the domain of all other public officials e.g. prison officers, government officials, who are not police officers.

In light of the developments in law and policy over the last three weeks, it would be surprising if the CPS decided to commence any further prosecutions under the old common law offence of conspiracy to commit misconduct in a public office. Arguably, the only useful development stemming from Elveden has been the reiteration of the significance of a free press in a democratic society and the introduction of a statutory basis for the prosecution of police officers who accept payment for information.