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Legal Threats to Whistleblowers

Misuse of legal powers

Protect has noted a worrying tendency for certain laws to be misused to target whistleblowers, often in the case of those who make disclosures to the media. From criminal and civil lawsuits, to abuse of power and threats of litigation, these actions – often taken by states or organisations with deep pockets – undermine public policy and negatively impact whistleblowing. This undermines the public policy objective of whistleblowing protection as a form of promoting wider accountability and specifically for workers who raise concerns with the media.

MISCONDUCT IN PUBLIC OFFICE (MIPO)

Misconduct in public Office is a common law offence, and the Law Commission describes it as “widely considered to be ill-defined”. The offence carries a maximum sentence of life imprisonment. Recently the number of prosecutions has risen exponentially, from two in 2005 to 135 in 2014. Unfortunately, we have also seen the offence being used against public officials to penalise unauthorised disclosures of what could be considered public interest information.

The Misconduct in Public Office Act does not have any kind of public interest defence. Prosecutions for MIPO are often based on whether the CPS considers such a prosecution to be in the “public interest”. As it is not always possible to predict what the CPS will consider in the public interest, this can have a potentially chilling effect on whistleblowers.
In our 2016 policy response, it was noted: “We are also concerned that MIPO has been used as a vehicle to pursue public officials with the threat of criminal prosecution for unauthorised disclosures of information that would normally be outside the scope of offences under the Official Secrets Act”.

Whistleblower Christopher Galley and MP Damien Green (who Galley raised concerns to) were both threatened with MIPO charges after raising concerns about undocumented immigrants working in the security industry.

As well as this, following the closure of the News of the World, News Corp set up a Management and Standards Committee which revealed identities of a number of confidential sources to the police. This saw the launch of Operation Elveden.

During the course of the investigation 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 intention to act as a 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. The Elveden cases show just how ambiguous the offence is, with many individuals unaware of their status as a public official and journalists as their proxy in committing the offence.

Protect is campaigning for a public interest defence for whistleblowers to be included in relevant legislation that prohibits disclosures. In 2015, the Law Commission undertook a review of the MIPO offence. We have contributed to this process where the Law Commission have proposed stripping out any whistleblowing from the offence.

We are still awaiting the Government response to these proposals.

OFFICIAL SECRETS ACT

The 1911 Official Secrets Act had a public interest defence to disclosing classified information, but this was repealed in the 1989 Official Secrets Act. When the law commission reviewed potential changes to the law in February 2017, they argued that a public interest defence should not be included because it would create legal uncertainty.

The jurisdiction of the official secrets act is also somewhat unclear. While it is common for those working in the defence and civil service sectors to sign the official secrets act, the actual range of disclosures which are covered by the act are (at least theoretically) fairly limited. Under the 1989 Official Secrets Act , the areas covered are security, intelligence, defence, international relations, crime, unauthorised disclosures and information entrusted in confidence to states or international bodies. This can lead to a situation where civil servants and government employees in general are unwilling to raise concerns for fear of breaching the official secrets act, even where they would be legally entitled to do so.

Katherine Gun was not only sacked but arrested and threatened with prosecution under the Official Secrets Act when she raised concerns about the US bugging the offices UN diplomats about to vote on the Iraq War. While she was not convicted, this act remains a threat against other whistleblowers in similar situations. Click here to see Protect’s case study of Katherine Gun as a whistleblower.
In response to the Law Society’s consultation, Protect argued that there should be a public interest defence, as courts already have experience and precedent for the public interest defence in relation to data protection and whistleblowing. We also argued that the CPS already uses a public interest test to determine whether to prosecute in the first place, so defendants should be able to use a public defence to make the legal process more fair and transparent.

OTHER LEGAL THREATS AGAINST WHISTLEBLOWERS

There are other pieces of legislation that prevent whistleblowers from raising their concerns, for instance by criminalising the sharing of certain pieces of information. These laws are not part of employment law, and so PIDA cannot be used as a defence. Some of these laws even come with criminal charges.

List of legislation:
This is a list of legislation that can be used to prevent whistleblowing taken from the Law Commission Report the Protection of Offical Data (APPENDIX C WIDER UNAUTHORISED DISCLOSURE OFFENCES p.g.287). This is not an exhaustive list.

Case Study: Pytel S105 Utilities Act Section 105 of the Utilities act which creates legal bars to disclosing information covered under a number of other energy sector act, such as the 1986 Gas Act, the Energy Acts 2004, 2008, 2010 and 2013. The actual information that is barred from being passed is quite vague, and includes “the affairs of individual or any particular business”, except for the sprawling list of exceptions included in section 105. Breaches of S105 can potentially result in imprisonment, and because it is a strict liability offence without a public interest defence, it can be very difficult to challenge. In the recent example of Greg Pytel, Pytel sought to raise public interest concerns related to OFGEM , but was threatened with prosecution under S105. Because Pytel cannot rely on any other defence, he is bringing a case to the court of appeal to seek a declaration of incompatibility.

Protect is currently looking to challenge this bar to whistleblowing by supporting Pytel (and the other OFGEM whistleblower) with their ET case and joining their efforts to lobby for a change in the law.
For Protect’s full press release on Pytel, click here.