Procurement during the pandemic

Introduction

Across the globe, political responses to the pandemic are under intense scrutiny. Presidents and Prime Ministers face criticism either for permitting coronavirus to run riot or for crippling their economies in an effort to quell the spread. To address these criticisms, Boris Johnson has committed to a public inquiry in the UK after the pandemic has abated. Outside the UK, however, the clamour to examine political decision-making has already led to numerous criminal investigations.

This article examines whether, in addition to a public inquiry, the criminal law might have a role to play as part of this country’s day of reckoning with coronavirus. In particular, would UK law enforcement be able to prosecute the offence of misconduct of public office in relation to the procurement of supplies during the pandemic?

Overseas criminal investigations are already underway

Our nearest neighbour, France, has already opened a number of investigations relating to the pandemic. One criminal investigation opened in June 2020 and led by Paris’s public prosecutor, Remy Heitz, is examining whether France’s response to the crisis resulted in the commission of offences including involuntary manslaughter and injury, endangering lives and the willful refusal to fight a disaster. Another investigation is led by the general prosecutor, François Molins, under the auspices of an administrative tribunal, the Court of Justice of the Republic, which was established in 1993 to handle cases of alleged ministerial misconduct. In a moment of striking drama in October last year, French police raided the homes and offices of France’s health minister, director of public health and former Prime Minister.

There are also numerous active investigations in the US, one of which has already concluded. On 30 December 2020, the Attorney General of Michigan released a report outlining the findings of a criminal investigation into allegations that the Department of Health and Human Services unlawfully directed the procurement of a contract for COVID-19 contact tracing to an alleged political ally.[1] The report analysed the US version of misconduct in public office and found there was insufficient evidence to prove “probable cause of misfeasance, malfeasance or nonfeasance”.

Procurement criticisms in the UK

With the grim news that the UK leads the charts in deaths per capita, politicians and other public officials in the UK have been heavily criticised for their handling of the pandemic. The timing of lockdown, the roll-out of testing, the efficacy of the test and trace app and the preparedness of the health service for a pandemic have all come under fire. This article focuses on one specific criticism: the legitimacy of the procurement processes by which large numbers of valuable pandemic-related contracts were awarded to individuals with apparent connections to the Government.

Procurement during the pandemic has been examined by the National Audit Office (‘NAO’), which published a report in November 2020 in response to concerns raised about “the transparency of contracts being awarded during the pandemic, potential bias or conflicts of interest in the procurement process, and that some contracts may have been given to unsuitable suppliers”.[2]

The NAO was only able to examine a proportion of the total contracts awarded by the Government; approximately half of the contracts awarded in the first seven months of the pandemic have not been disclosed to the public. Nonetheless, the NAO made a number of findings that supported the concerns raised. Of a total of £18 billion contracts, £10.49 billion were awarded without competition. There was inadequate documentation both to mitigate the risks of procurement without competition and to justify why particular suppliers were chosen. In some cases, due diligence on providers was conducted only after the contracts had been agreed, and in two of those cases, contractors were rated amber or red (on a traffic light rating system).

The most controversial finding was that the team established to procure PPE (which accounted for 80% of the PPE contracts awarded during the pandemic) processed some leads through a ‘high-priority lane’. The ‘high-priority lane’ was only available to a small number of PPE suppliers personally recommended by government officials, MPs and members of the House of Lords. Such leads were examined more quickly than others and were 10 times more likely to be awarded contracts. The report gives two examples of contracts for face masks awarded via the ‘high-priority lane’ where the product procured was not in line with the government’s published PPE specifications. As a result, the masks could not be used for their intended purpose.

The NAO did not identify any evidence of criminal conduct. Indeed, such findings would be outside the NAO’s remit. But the factual background established by the NAO may give rise to suspicions that crimes have been committed. Many will look at the criminal investigations overseas and question whether those involved in a procurement process in the UK – which resulted in huge sums being awarded to untested companies and a large number of the subsequent purchases being unfit for purpose – should be held to account in the same way.

The first criminal offence that may spring to mind is bribery. Rapidly awarded contracts in medical emergencies are always ripe for corruption. However, to establish bribery an investigator would have to find strong and credible evidence that a person involved in awarding a pandemic-related contract was promised, or received, a financial or other advantage, as required by Section 1 of the Bribery Act 2010. There is no basis to believe that such evidence is available.

If an investigation into bribery seems unlikely, would an investigation into misconduct in public office stand a better chance of success?

What is misconduct in public office?

The offence of misconduct in public office is a common law offence that can be traced back to similar offences in the 12^th century.[3] It was rarely prosecuted until the 2000s when a resurgence in popularity led to an average of around 80 new cases per year from 2006 onwards. It is a challenging offence to define and has been the subject of numerous calls for reform, culminating in a project by the Law Commission and the publication of its report in December 2020, detailing proposals for its abolition and replacement with two new offences.[4]

The leading authority on the modern offence is Attorney General’s Reference No 3 of 2003[5], in which Pill LJ identified its four elements as follows:

A public officer acting as such;
Wilfully neglects to perform his duty and/or wilfully 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.

Taking each of these four elements in turn, would there be a case for prosecuting the offence in light of the factual findings made by the NAO?

“A public officer acting as such”

The first element of the offence involves two separate questions; first, is the person in a public office by virtue of the position they hold; and secondly, are they acting in that capacity when they commit misconduct?

As regards the first question, the Law Commission concluded that one of the key problems with the offence is identifying who holds a public office. It might have been easier to identify a “public officer acting as such” in the Middle Ages when the state’s functions were not as sprawling as they are today. In the modern state, however, a public officer is not limited to someone employed or paid by the state; private contractors now frequently perform state functions delegated to them. Faced with this difficulty of interpreting the boundaries of the offence, the courts have reached some superficially surprising and inconsistent conclusions about who is and who is not in public office. For example, a paramedic in an ambulance[6] does not hold public office, whereas a nurse in a prison does.[7]

The second question is whether the person was acting as a public officer when they committed the misconduct. This was one of the rocks against which the private prosecution of Boris Johnson for misconduct in public office crashed. The Court held that Mr Johnson was not discharging his duties as an MP or as London Mayor when, to adopt the linguistic fig leaf deployed by Rafferty LJ and Supperstone J, he “expressed a view contentious and widely challenged” about the cost of EU membership.[8]

Proving that the defendant is a “public official acting as such” can become particularly tricky in the world of Government procurement, where public/private initiatives are common and decisions are often delegated through chains of subcontractors. Indeed, much about the Government’s procurement processes during the pandemic remains opaque. However, based on what we do know, there would likely be two main categories of defendant. First, the government officials, MPs and members of the House of Lords who recommended PPE suppliers for the ‘high-priority lane’; and secondly, the individuals approving the contracts in the Cabinet Office and the “clearance board”, which comprised government officials from a number of different departments, mainly the Department for Health and Social Care (‘DHSC’).

Those in the first category might argue that they were not discharging the duties of their public office when they made their recommendations; they simply held public office at the same time as passing on personal suggestions that the decision-makers were free either to approve or reject. The NAO’s finding that there were no written rules as to how the ‘high-priority lane’ should operate adds to the difficulty in determining whether they were acting as, and not whilst, a public official.

Those in the second category might fall more easily into the definition of a “public official acting as such”. Their decisions to award contracts would likely be regarded as the discharge of the duties of their public office under the Public Contracts Regulations 2015 and the procurement guidelines promulgated by the Cabinet Office and DHSC.

“Wilfully neglects to perform his duty and/or wilfully misconducts himself”

In AG Ref’s no 3 of 2003 Pill LJ explained what was required for the second element of the offence: “deliberately doing something which is wrong knowing it to be wrong or with reckless indifference as to whether it is wrong or not.” Subsequent cases have clarified that it will be necessary to prove an underlying breach of the duty the public office holder was obliged to discharge. Certain cases have even held that a higher standard of intent, namely dishonesty, is required if the misconduct is committed in circumstances that involve the acquisition of property by theft or fraud.

In light of this case law, a prosecutor would need to identify a breach of one of the duties imposed on the Cabinet Office and clearance board government officials by the Public Contracts Regulations 2015[9], e.g. the duty to identify and prevent conflicts of interest. On their face, the NAO’s findings provide reasonable grounds for suspecting that a number of such breaches may have occurred.

If the evidence suggests that the breach was connected to misconduct such as personal gain (unlikely) or was attributable to wilful neglect (more likely), this second element of the offence would be satisfied. A prosecutor would be looking for evidence that a supplier had no prior expertise in manufacturing similar equipment; had an easily discoverable history of controversy (e.g. allegations or findings of criminality or human rights abuses); or had connections to the Conservative Party (e.g. staffed by former government ministers or family members of current government ministers). In other words, the decision to select the supplier not only makes no rational sense, but can be explained by an improper motive.

This is why the ‘high-priority lane’ raises questions. The NAO report does not affirm that the leads processed by the ‘high-priority lane’ were ten times more likely to succeed because they were of better quality. There is therefore a reasonable inference that those leads were more likely to succeed because they were not subject to the same scrutiny (as evidenced by the commissioning of two contracts of wholly unusable facemasks), and that this absence of scrutiny was the result of political pressure. Indeed, the apparent failure to apply scrutiny to ‘high-priority lane’ contracts is particularly alarming because personal recommendations of those who are self-evidently well-connected to government officials should logically be scrutinised even more carefully.

“To such a degree as to amount to an abuse of the public’s trust in the office holder”

The leading authority on this third element of the offence remains the 19^th century case of R v Borron[10], in which Abbot CJ explained “to condemn anyone who had fallen into error or made a mistake, belonged only to the law of a despotic state”. This is a challenging but important test in that it establishes a threshold of seriousness over which the conduct must step to reach the criminal standard. Assessing seriousness introduces a degree of subjectivity and therefore uncertainty. It is an element of the offence that the Law Commission described as circular; if a public official has wilfully breached a duty, logically will there ever be circumstances in which this breach does not amount to an abuse of the public’s trust?

In our scenario, this third element of the offence is particularly important because the catastrophic nature of the pandemic means the public might reasonably expect that greater care should have been taken about the procurement of supplies. Whilst a reckless procurement of non-critical goods is unlikely to fulfil the test, it could be tempting for a prosecutor to regard a decision-maker who is reckless about the procurement of lifesaving protective equipment for front-line health workers at such a critical time as someone who has abused the public’s trust.

The inherently subjective nature of this third element of the offence means that a prosecutor should be careful not to stretch the offence too widely in the face of public outrage. A case which the public call for may not stand up to scrutiny in court.

“Without reasonable excuse or justification”

The fourth and final element of the offence remains unexplored in case law and is therefore opaque. In some respects, it is easy to confuse or conflate it with the third element of the offence: if the circumstances are such as to give a defendant a reasonable excuse, how could the office holder have abused the public’s trust?

It is likely that any public office holders investigated for misconduct during the pandemic would argue that the unprecedented nature and scale of the health emergency was a reasonable excuse for prioritising speed over quality – and that it is only hindsight that reveals that, in much calmer conditions, a different and better supplier could have been selected. To counter this line of argument, a prosecutor would need to ensure that hindsight is no answer: that no matter what pressures they faced, the procurement decisions made by government officials cannot be explained other than in terms of wilful neglect.

So, could misconduct in public office be prosecuted?

Answering this question is inevitably a speculative exercise based on incomplete information. The NAO and Public Accounts Committee might, in future, make even more damning findings once the identities of all suppliers, and the circumstances in which they were selected, become public. However, based on what we know from the existing NAO report, there are clear warning signs that merit criminal investigation.

Whilst the offence can, like bribery, be committed if the public officeholder made a personal gain (financial or otherwise), it can also be committed where there is gross neglect, which encompasses scenarios such as currying favour for political advancement or bending to improper political pressure. In non-legal language, wilful cronyism, or nepotism without more is sufficient. It is not necessary to prove a corrupt motive.

The elasticity of the offence of misconduct in public office is both its strength and its weakness. An ambitious prosecutor could try to stretch the offence to criminalise certain aspects of the Government’s pandemic response, but there is no case law that suggests the offence can be committed when making procurement decisions. The devil will be in the detail – so that any charging decision would likely follow a Public Inquiry, which will flush out the written and oral evidence of key decision-makers.

Would the Law Commission’s proposal for the offence fare better?

Elasticity and the potential for subjective argument are among the reasons why the Law Commission has recommended the abolition of the offence of misconduct in public office. Not only is a lack of clarity undesirable from a public policy perspective, but prosecutors may be tempted to charge cases which will not withstand scrutiny. Indeed, the Law Commission’s report describes how the ambiguous terms of the offence can lead to overreach where “law enforcement agencies […] pursue it in new contexts which many consider unjust.” Examples given are the prosecution of journalists in Operation Elveden (relating to payments to public officials for confidential information) and a case involving the misuse of a credit card by a police officer.

The Law Commission has proposed that the common law offence is replaced with two new statutory offences. One is designed to punish officers charged with a duty of care who fail to prevent deaths, such as police or prison officers. The proposed offence is described as follows: “An offence of breach of duty in public office, where the public office holder has a specific duty to prevent death or serious injury, is aware of that fact, and breaches the duty, causing or risking death or serious injury, while being at least reckless as to whether that would result.” This formula might arguably be relevant to an examination of a failure to prevent avoidable deaths in the pandemic, similar to the investigation underway by the Paris prosecutor.

The Law Commission’s other proposed offence is more apposite to the situation under consideration, a new offence of corruption in public office. The proposed offence has the following six elements:

(1) that the defendant is a public office holder and is aware of the facts that put them in this role;

(2) the defendant uses or fails to use his or her public position or power;

(3) the conduct in (2) is for the purpose of achieving a benefit or detriment;

(4) a reasonable person would consider their conduct seriously improper;

(5) the defendant realised that a reasonable person would regard it as such; and

(6) the defendant is not able to prove that their conduct was, in all the circumstances, in the public interest.

It is immediately obvious that the introduction of a corrupt motive in this new proposed offence means that something more than public outrage at the consequences of the misconduct is required. In order to prove the offence in a procurement scenario, the prosecutor would have to demonstrate that the government official awarding the contract did so to achieve a benefit, or to achieve detriment for a supplier who was wrongly rejected. The proposed offence therefore significantly raises the bar for prosecutors and aligns it to existing offences of bribery. It effectively does away with those current cases of misconduct in public office committed where a defendant breaches a duty through gross neglect unrelated to corruption. Therefore, if adopted, the offence would only be committed in much narrower circumstances.

Another feature of the new offence that may make it harder to prosecute is the novel mens rea requirement. There are no analogous offences where the mens rea is for the defendant to recognise that their conduct would be considered ‘seriously improper’. It is curious that the proposal requires that for the offence to be committed the defendant recognises the serious shortcomings of their conduct, whereas the recent case of Ivey v Gent Casinos[11] has largely removed the requirement to prove the defendant’s subjective understanding of their acts from the test for dishonesty. The Supreme Court criticised the old Ghosh test for dishonesty because that test had the effect that the more a person’s morals do not conform to society’s expectations, the less likely he is to be held criminally responsible. The same criticism could be levelled against this element of the Law Commission’s proposed offence. And it again has the effect that the offence could only be committed in narrower circumstances.

It will be some time before the Law Commission’s proposals are considered and potentially enacted. Prosecutors considering complaints about the Government’s handling of the pandemic will do so based on the law as it is now. Nonetheless, prosecutors should consider the warnings in the Law Commission’s report about the risk of overreach when considering charging misconduct in public office. The financial crash of 2008 resulted in prosecutions of bankers for various types of misconduct in reaction to the circumstances created by the crisis. The unusually high number of acquittals in those cases suggests that the evidence was not as strong as the prosecutors apparently believed – and that public anger at figures who can be easily vilified does not translate into convictions. It is tempting to look to the criminal law to address undoubted failings committed during a crisis which has had such horrifying consequences. It is often said that the pandemic is unprecedented, but prosecutors must keep a cool head and heed the many warnings, both from the Law Commission and case law, against testing the offence of misconduct in public office in unprecedented territory.

Jessica Parker, Partner

[1] https://www.michigan.gov/documents/ag/Report.In.re.Contact.Tracing_711555_7.pdf

[2] https://www.nao.org.uk/wp-content/uploads/2020/11/Investigation-into-government-procurement-during-the-COVID-19-pandemic.pdf

[3]The history of misconduct in public office, (Appendix A to the Law Commission’s report)

[4]https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2016/01/apa_history.pdf

[5] [2004] EWCA Crim 86

[6] R v Mitchell 2014 Cr App R 2

[7] R v Cosford [2013] EWCA Crim 466

[8] [2019] EWHC 1709 (Admin)

[9] https://www.legislation.gov.uk/uksi/2015/102/contents/made

[10] [1820] 3 B & Ald 432

[11] [2017] UKSC 67