APPENDICES
¶Misconduct in public office 5.68 The common law offence of misconduct in public office remains an offence and has not been
extinguished by the Bribery Act 2010. The offence was explained by the Court of Appeal in A-G Ref (No 3 of 2003), which held that the offence of misfeasance in public office is committed by a public officer acting as such who wilfully neglects to perform his or her duty and/or wilfully misconducts themselves to such a degree as to amount to an abuse of the public's trust in the office holder, without reasonable excuse or justification. Wilful in this context involves "deliberately doing something which is wrong, knowing it to be wrong or with reckless indifference as to whether it is wrong or not".479 As to the requirement that the neglect of duty or the misconduct must amount to an abuse of the public's trust in the office holder, the court said that threshold is a high one and a mistake, even a serious one, will not suffice.480
¶5.69 In respect of cases involving police officers, the Court of Appeal reviewed the authorities on
sentencing in A-G Ref (No 30 of 2010) (R v Bohannan), and concluded that the authorities illustrated four important principles: punishment and deterrence were always important because police officers must be deterred from misconduct and the public must see that condign punishment will be imposed on police officers who betray the trust in them, an incentive, money or otherwise, increases the seriousness of the offence, misconduct that assists organised criminals to keep ahead of law enforcement agencies increases the gravity of offences, misconduct that impact on police operations moves an offence into a different category of gravity.481
¶5.70 The offence can involve an improper act or omission, but the misconduct must be wilful and
the offender must be a public officer acting as such.482 Public officers include magistrates, judges, registrars, council officials, ministers, civil servants and police officers.
¶5.71 For example in A-G's Ref (No 1 of 2007), a police officer was convicted of misconduct in public
office for misusing the Police National Computer in order to supply confidential information to a known criminal.483
¶5.72 The principal legislation dealing with corruption prior to the Bribery Act 2010 was the Public
Bodies Corrupt Practices Act 1889, the Prevention of Corruption Act 1906, and the Prevention of Corruption Act 1916.
¶Handling stolen goods 5.73 Section 22 of the Theft Act 1968 sets out that a person handles stolen goods if (otherwise
than in the course of the stealing) know or believing them to be stolen goods they dishonestly receive the goods, or dishonestly undertake or assist in their retention, removal, disposal or realisation by or for the benefit of another person or if they arrange to do so. Section 34(2) (b) defines "goods" as including money and every other description of property except land, and includes things severed from the land by stealing.
¶5.74 Dishonesty in this context bears the same meaning as fraud or deception in the case of Ghosh.
¶For a charge of handling stolen goods to be made out, it must be proved that the defendant
1939¶Appendix 4 | Legal Materials
knew the goods were stole. or correctly believed they were and this state of mind must correspond with the time when the handling takes place.
Restrictions on content of publications Official Secrets Act 1989
¶5.75 Section 1 of the Official Secrets Act 1989 contains an offence relating to the disclosure of
information and material by a person who is or has been a member of the security and intelligence services or has been notified they are subject to the OSA 1989. Section 2 creates the offence of damaging disclosure of defence information, s3 relates to damaging disclosure of material relating to international relations or other confidential information, documents or articles which were obtained from a State other than the UK or an international organisation, and s4 creates an offence of disclosure of information relevant to criminal investigations.484
¶5.76 The House of Lords in R v Shayler held that ss1,3 Visits 9 Chapter 2: the approach 10 Challenging the evidence 31 The nature and standard of proof 43 Chapter 4: the Report 49 Timing and content 50 PARt B: the PRess And the PuBlIC InteRest 53 Chapter 1: Introduction 55 Chapter 2: the freedom of the press and democracy 56 The importance of a free press: free communication 61 Personal autonomy and civil liberties 73 Prime Minister Blair: 1997-2007 1143 Prime Minister Cameron: 2010-present 1209 Human Rights Act 1998 1262 In particular, in relation to the knowledge and understanding (a) in 2002 of Surrey Police as to the interception of the mobile phone of Milly Dowler and (b) in 2008 of Cleveland Police in relation to e mail hacking of John Darwin who had faked his own death in a canoe 'The Freedom of the Press'-proposed preface to 'Animal Farm', publication of which was delayed until the end of the war to avoid causing offence to the Soviet Union pp361-363, ibid p3, ibid ibid http://www.newscorp.com/investor.html http://stakeholders.ofcom.org.uk/binaries/research/cmr/cmr11/UK_Doc_Section_1.pdf Communications Act 2003 s375 (1)(2C)(a) http://www.legislation.gov.uk/ukpga/2003/21/section/375 ibid, p4 p16, lines 12-18, Alexander Owens, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of- Afternoon-Hearing-30-November-2011.pdf p42, para 83, ibid pp2-3, para 5, ibid para 46, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Application-of-Rule-13-of-the-Inquiry- Rules-2006.pdf Transcript of the proceedings before Gross J on 26 January 2007, p70E This submission has not been published on the Inquiry website, but was shared with the Core Participants to the Inquiry pp4-5, lines 17-12, Charlotte Church, ibid p34, lines 16-25, James Hipwell, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Morning-Hearing-21-December-20111.pdf p4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Commissioner-Bernard- Hogan-Howe1.pdf pp12-13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Jeff-Edwards.pdf p15, para 3.1.3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Report-by-Elizabeth-Filkin.pdf pp4-5, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Alexander-Owens1. pdf pp32-33, lines 4-22, Alexander Owens, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript- of-Morning-Hearing-5-December-2011.pdf p26, para 6.10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Christopher- Graham.pdf http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Fourth-Witness-Statement-of-Richard-Thomas-CBE. pdf; http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Sixth-Witness-Statement-of-Richard-Thomas.pdf Part H, Chapter 5, para 2.62 p6, lines 15-16, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of- Morning-Hearing-25-April-2012.pdf p22, lines 7-14, Jack Straw, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-Morning- Hearing-16-May-2012.pdf p4, lines 6-12, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Morning-Hearing-14-June-2012.pdf p6, ibid http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm110713/debtext/110713-0003. htm#11071379000002 p9, lines 20-25, ibid pp1-2, para 4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/10/Submission-from-Professor-Steven- Barnett-on-plurality.pdf p9, line 8, Ian Hislop, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Morning- Hearing-18-January-2012.pdf p4, para 18, and p18, para 85, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement- of-Nick-Clegg-MP2.pdf; pp10-11, lines 15-24, Nick Clegg MP, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/06/Transcript-of-Morning-Hearing-13-June-2012.pdf p14, para 42, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Lord-Hunt-of-Wirral. pdf p36, lines 9-20, Lord Black, ibid p3, para 7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Lord-Black-of-Brentwood1.pdf p15, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Submission-by-Campaign-for-Press-and- Broadcasting-Freedom1.pdf p51, lines 11-15, Professor John Horgan, ibid K Part F, Chapter 6 Part K, Chapter 7, para 4.28 K Part K, Chapter 7, para 4.8 In McCartan Turkington Breen v Times Newspapers Ltd [2001] 1 AC 277, Lord Steyn noted that even before the coming into force of the HRA 1988, "the principle of freedom of expression [had] attained the status of a constitutional right with high attendant normative force", with reference made to Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 207G-H and 4 do not entitle a defendant prosecuted
under those provisions to be acquitted if they show that it was, or that they believed that it was, in the public or national interest to make the disclosure in question or if the jury concluded that it might have been, or the defendant might have believed it to have been in the public or national interest to make the disclosure in question.485 Lord Bingham held that:486
"It is in my opinion plain, giving sections 1(1)(a) and 4(1) and 3(a) their natural and ordinary meaning and reading them in the context of the OSA 1989 as a whole, that a defendant prosecuted under these sections is not entitled to be acquitted if he shows that it was or that he believed that it was in the public or national interest to make the disclosure in question or if the jury conclude that it may have been or that the defendant may have believed it to be in the public or national interest to make the disclosure in question. The sections impose no obligation on the prosecution to prove that the disclosure was not in the public interest and give the defendant no opportunity to show that the disclosure was in the public interest or that he thought it was. The sections leave no room for doubt, and if they did the 1988 white paper quoted above, which is a legitimate aid to construction, makes the intention of Parliament clear beyond argument."
¶5.77 Of particular relevance to journalists is s5, which sets out offences relating to disclosure of
1940information resulting from unauthorised disclosures. Section 5(2) provides that a person will be guilty of an offence where the person into whose possession the information, document or article has come, discloses it without lawful authority, knowing or having reasonable cause to believe that it is a protected disclosure under the provisions of the OSA, and the material has come into their possession either directly or indirectly by reason of disclosure by a crown servant or government contractors without lawful authority, or disclosed in breach of confidence.487 Section 5(2) applies to any information, document, or other article which is protected against disclosure by ss1-4. An offence is not committed under s5(2) unless