Communicated on 15 March 2018
FIRST SECTION
Application no. 41387/17
Robert NORMAN
against the United Kingdom
lodged on 1 June 2017
STATEMENT OF FACTS
The applicant, Mr Robert Norman, is a British national, who was born in 1960 and lives in Dawlish. He is represented before the Court by Mr Henry Blaxland QC of Garden Court Chambers, a lawyer practising in London.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The background facts
The applicant was a prison officer at HMP Belmarsh, a high security prison whose inmates included a number of notorious criminals. Between May 2006 and April 2011, he had a relationship with a tabloid journalist Mr M., who was working for a mass circulation newspaper called the Daily Mirror until 2010, and thereafter for a similar publication called the News of the World. Through Mr M., the newspapers paid the applicant sums totalling GBP 10,684 in return for information supplied about the prison, which formed the subject matter of numerous published articles. The stories for which the applicant’s information was said to have been the source ranged from general stories about prison conditions often concerning budget cuts or spending issues, to specific or personal stories in which prisoners or staff were named or identifiable; for example a story about a prison officer resigning for having an affair with an inmate.
In 2011 the police launched an investigation into allegations of inappropriate payments by some journalists to police and public officials called “Operation Elveden”. In July 2012 the police made requests to Mirror Group Newspapers (“MGN”) for details of public officials who had been paid for information. A Memorandum of Understanding was agreed between the police and MGN which left it to the judgment of MGN whether or not it would be in the public interest to disclose journalistic material, held in confidence, to the state. MGN disclosed the applicant’s name to the police as a journalistic source.
In June 2013 the applicant was arrested and charged with misconduct in public office. The journalist Mr M. was charged with conspiracy to conduct misconduct in public office. On 17 April 2015 the prosecution offered no evidence against the journalist and a verdict of not guilty was recorded against him.
The prosecution pursued the charges against the applicant and in May 2015 the applicant was tried at the Central Criminal Court on one count of misconduct in public office. On 1 June 2015 the applicant was convicted and the following day sentenced to 20 months imprisonment.
In his sentencing remarks the judge concluded that the applicant was not a genuine whistleblower. He referred to the fact that not all the information that the applicant had sold was in the public interest and some stories were purely aimed at attacking the prison governor; that the applicant had “got himself into a hole” and was motivated by financial interest; that as a union representative he could have used official channels to disseminate information; that the number of occasions and length of time over which the applicant provided information were greater than all the other incidences under Operation Elveden, and that the applicant showed no remorse.
The applicant’s appeal against sentence was dismissed on 22 September 2015 but he was granted leave to appeal his conviction.
On 20 October 2016 the Court of Appeal dismissed his appeal. It considered that there was room for doubt about whether the applicant’s Article 10 rights were engaged at all in the case of a source whose identity is voluntarily disclosed by a newspaper. Recalling the Committee of Ministers Recommendation R(2000)7 to member states on the right of journalists not to disclose their sources of information and subsequent recommendations of the Parliamentary Assembly of the Council of Europe on the topic, it underlined that those instruments made clear that whilst journalists have a right to withhold disclosure of their sources, they have no obligation to do so in the absence of one imposed by domestic legislation.
The Court went on in any event to analyse the facts, assuming in the applicant’s favour that Article 10 was engaged and recalling the qualified nature of the right. It commented as follows:
“34. ... The freedom of expression which potentially falls within article 10(1) is in respect of his communications with Mr M. which provided information about the prison. That was in fact the provision of information by the appellant in return for the corrupt acceptance of money by him as a public official over a prolonged period; it amounted, as the jury found and as we explain in relation to the second ground of appeal, to the commission by the appellant of the serious criminal offence of misconduct in public office. Revelation of his wrongdoing would be necessary and proportionate for the important public interests of prosecuting a crime which exists, in this context, to maintain the integrity and efficacy of the prison service and the public’s confidence in it. The offence of misconduct in public office is prescribed in law as the consequence of the very activity which the appellant seeks to suggest is protected from disclosure by article 10(1), and fulfils the requirements of judicial scrutiny and legal certainty (as to which see below). Different considerations might arise in the case of a genuine whistleblower seeking to act in the public interest, where the only wrongdoing might lie in breach of obligations to the employer rather than in the circumstances of the communication to the journalist. In the appellant’s case the expression whose freedom he claims to be protected is itself serious criminal conduct.”
The Court also addressed the possibility that the criminal offence of misconduct in public office was so vague it might breach Article 7. The Court found it was not concluding:
“49. There is no lack of certainty in this element of the offence of misconduct in public office. It has recently been clearly articulated and explained in A-G’s Reference (No3 of 2003) and R v Chapman. In the latter case it was made clear, in the passages quoted above, that the level of seriousness which must be reached to establish the third element is defined by recognised criteria on which the jury is to be directed. The element is sufficiently clear to enable a person, with appropriate legal advice if necessary, to regulate his or her behaviour and foresee whether such behaviour was capable of amounting to misconduct in public office.”
The applicant applied for leave to appeal to the Supreme Court. This was refused by the Court of Appeal. The Supreme Court also refused leave to appeal on 18 January 2017 stating:
“There is no point of law that affects the outcome of the case.”
B. Relevant domestic law and practice
1. The offence of misconduct in public office
Misconduct in public office is a common law offence, not defined in any statute. It carries a maximum sentence of life imprisonment. The offence is an ancient one, considered to have its origins in the Statute of Westminster 1275 which initiated a set of reforms aimed at eliminating corruption in public office, apparently considered by the contemporary public to be a widespread problem[1]. A variety of laws intended to address various types of state corruption found expression in different statutes from then on until the Sale of Offices Act 1551.
After that, the offence started its development in case law. The earliest judicial formulation of the principle can be found in Crouther’s Case 1599, which concerned the failure of Mr Crouther, a local constable, to raise a “hue and cry” (to initiate a form of community policing) when being informed that a burglary was occurring, despite the duty on him to do so.
The case of Bembridge from 1783 (3 Doug 327, 99 ER 679) is usually cited as the first clear articulation of the offence as it is now understood. The leading modern case defining the offence is Attorney General’s Reference (No 3 of 2003) ([2004] EWCA Crim 868, [2005] QB 73) in which the Court of Appeal stated that the elements of the offence are:
“(1) a public officer acting as such; (2) wilfully neglects to perform his duty and/or wilfully misconducts himself ; (3) to such a degree as to amount to an abuse of the public’s trust in the office holder; (4) without reasonable excuse or justification.”
2. The Law Commission project on misconduct in public office
The Law Commission began a review of the offence on 5 September 2016 and expects to publish its final recommendations in 2018 following calls for reform of the law. The Commission cited the prosecutions arising from Operation Elveden as one of the elements that has “brought the problems with the offence into sharp focus”.
Appendix C to the Commission’s Summary of Issues paper is entitled “Misconduct in public office and the ECHR”. In that appendix, the Commission has analysed in detail the relationship of the offence with the provisions of the Convention and case-law of this Court. It concluded in respect of Article 7 as follows (see paragraph C.35):
“We conclude that “public office” and the “seriousness test” are ill-defined and vague. As these are core elements of the misconduct offence, the law may be incompatible with Article 7 of the ECHR. In our view, without clearer general guidance as to who can be prosecuted, and for what conduct, the difficulties currently experienced are unlikely to disappear.”
In respect of Article 10, the Commission concluded (see paragraph C.111):
“We consider that there are presently a number of valid concerns as to whether article 10 rights can be adequately protected by the mechanisms currently relied upon in misconduct in public office prosecutions as filters to prevent prosecutions and convictions in situations where the “public interest” in the material disclosed outweighs the wrong and/or harm committed.”
COMPLAINTS
The applicant complains under Article 7 of the Convention that due to the ancient and vague nature of the offence of misconduct in public office, it was not possible for him to foresee that his actions would be subject to a criminal trial and imprisonment.
The applicant also complains under Article 10 of the Convention that his prosecution and conviction were disproportionate and had a ‘chilling effect’ on freedom of the press and democracy.
QUESTIONS TO THE PARTIES
1. Did the act of which the applicant was convicted constitute a criminal offence under national law at the time when it was committed, as envisaged by Article 7 of the Convention, in particular in light of the common law origin and nature of the offence?
2. Has there been an interference with the applicant’s freedom of expression, within the meaning of Article 10 § 1 of the Convention?
If so, was that interference prescribed by law and necessary in terms of Article 10 § 2 (see Becker v. Norway, no. 21272/12, §§ 61-70, ECHR 2017)?
[1]. See the Law Commission Misconduct in Public Office Summary of Issues 20 January 2016, Appendix A “the History of the Office of Misconduct in Public Office”, A.79.
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