Public Office (Accountability) Bill (First sitting)

Douglas McAllister Excerpts

Thursday 27th November 2025 Public Bill Committees

[Mr Tom Morrison (Cheadle) (LD)]

Q This is for Tom Guest. The new offence of misleading the public would not apply for the purposes of journalism. How clear do you think the meaning of that exception is? I will give two examples: would it count if a Minister was writing a piece for a newspaper column or if a public servant was briefing the media after an event?

Tom Guest: It is fair to say that it is quite widely drawn, and there can be good policy reasons for that. Clearly, it is important to uphold the freedom of speech and protect the interests of journalism—not having a chilling effect on journalism is important. We understand why it is drafted in that way, but it is drafted quite widely. It would appear to cover those examples. Again, I am giving that at a very broad level. In a real-life scenario, the police would have gathered much more evidence for the prosecution to consider, but it potentially would cover those situations.

[Douglas McAllister (West Dunbartonshire) (Lab)]

Q My question is to Tom. Under the clause 12(5) defence of reasonable excuse for a seriously improper act of misconduct, what do we regard as the “sufficient evidence” described in clause 12(6)? You said that the defendant simply needs to raise that, but to what standard? What is sufficient and, in a jury trial, who decides that? Is it for the jury to decide if the defence has been laid out, or will there be judge guidance to the jury? The standard of the burden of proof falling on the Crown to disprove it is pretty high—it is “beyond all reasonable doubt”. That is my concern.

Tom Guest: From a practical point of view, in prosecuting misconduct in public office we do not generally have a problem with that—although I will come on to situations in which we do—because you have already shown that a police officer is doing something very serious indeed. The chances of them establishing that they had a reasonable excuse for that are very slim indeed. For context, it is quite rare that that is successfully raised because the prosecution should already have shown that something pretty serious has happened.

To give an example, we did have cases where public officials were providing information in return for money. On one view, that was a form of corruption, but their defence was, “I have a reasonable excuse for that.” Let me just run through how that works. It could be raised in several formats—ideally, by them giving evidence, but there are other ways. They can try to introduce it in the course of the prosecution case. There is a judge filter—the judge will not allow any old reasonable excuse to be put to the jury—but if the judge is satisfied that it is right for it to go to the jury, ultimately it will be for the jury to assess. The juries did assess that in those examples where public officials were providing information in exchange for money.

[The Chair]

Q Professor Lewis, do you wish to add to that?

Professor Lewis: Not really, but just as background information, it is not uncommon in criminal law for there to be a burden on the defendant to raise a defence, and for the burden to disprove that defence to lie with the prosecution. That is a common method of ensuring that not every defence has to be negatived by the prosecution while reflecting the presumption of innocence.