Money, morality and misconduct in public office

21st November 2016

From phone hacking to parliamentary expenses, it’s fair to say that public trust in our institutions has taken a blow over the past few years. For all the truth telling (and scapegoating), the inquiries that followed seemed to signal a tide change. It looked like we were moving from a culture of impunity to one of accountability. But have we gone too far? Did our perceived bloodlust give the authorities a green light to create what lawyers are calling an ex post facto offence, or retroactive law?

Misconduct in public office (MIPO), an obscure and antiquated common law offence, consists of a public officer acting as such who; willfully neglects to perform his/her duty and/or willfully misconducts himself; to such a degree as to amount to an abuse of the public’s trust in the office holder; and without reasonable excuse or justification. If found guilty, an officer could face a maximum sentence of 25 years in prison.

As necessary as it is to hold public officers to account where they commit misconduct, is the full force of the criminal law an appropriate sanction? This is the question that the Law Commission is currently consulting on. At a pre consultation meeting, delegates were asked whether they considered certain actions on the part of a public official amounted to misconduct. Where sex and money were involved, the delegates were more likely to consider MIPO as a viable penalty. Clearly our morals in relation to sex and money are entirely subjective. Which begs the question, how dangerous is it when the law plays catch up with rapidly changing perceptions of morality?

Attitudes toward taking money in exchange for information vary wildly. In the UK a consultation run by whistleblowing charity Public Concern at Work found that there was little appetite to create a system of rewards for whistleblowers. In the USA on the other hand, it is entirely possible to be involved in wrongdoing, blow the whistle on this and receive a share of the fine imposed as a result.

During the course of Operation Elveden over 90 arrests were made resulting in 34 convictions, the majority of whom were public officers found to have taken money from journalists in exchange for information. Ranging from government misspending to salacious gossip, the public interest in each disclosure varied considerably. While morally questionable, receiving money in return for information in many of these cases may have been secondary to the officer’s primary role as whistleblower. As a result of the investigation, over 30 journalists were also arrested on suspicion of conspiracy to commit misconduct in public office for their role in providing payment for this information.

Whether morally bankrupt or ultimately serving the public interest, the selling of information to the press was widespread prior to the Leveson Inquiry and it is no coincidence that since the inquiry the number of prosecutions commenced has increased dramatically, from 2 in 2005 to 135 in 2014. The Elveden cases show just how ambiguous the offence is, with the CPS playing fast and loose with the legal limits of MIPO.

Legal threats to journalists and their sources seem to be becoming more and more prevalent. Absent a public interest defence for whistleblowers, the use of MIPO in unauthorised disclosure cases sets a worrying precedent. This runs the risk of silencing future whistleblowers by creating a culture where whistleblowing is not tolerated. The offence of MIPO must be strictly confined. The European Convention of Human Rights expressly requires legality - that there is no punishment without law. What we are seeing is mission creep, the undermining of legal protection for whistleblowers through criminalising certain types of disclosures. The only real options are to abolish or repeal MIPO.