Chapman & Ors, R. v

For misconduct in public office involving unauthorised disclosures to the media, a deliberate breach of duty is insufficient. The jury must be directed that the third element has a high threshold and must decide whether the misconduct had the effect of harming the public interest. The public interest is not the same as matters in which the public is interested.

An accessory need know the essential factual matters, including the circumstances which make the misconduct sufficiently serious, but need not know or intend that a jury would characterise it as crossing the criminal threshold. The same applies to conspiracy under the Criminal Law Act 1977.

A prison officer, a friend who assisted with payments, and a former journalist were convicted after a Central Criminal Court trial of misconduct in public office, aiding and abetting it, and conspiracy to commit it. The allegation was that information obtained through public office had been supplied to the media for payment.

In a separate trial before the same judge, a journalist was convicted of aiding and abetting a serving soldier who supplied information about Prince Harry to newspapers for payment. The applicants challenged the directions on the seriousness threshold for misconduct in public office and on the mental element for accessories and conspiracy. The first trial also raised whether non-disclosure of jury notes made the convictions unsafe.

1. The appeals of ABC, EFG and IJK were allowed and their convictions were quashed. The judge materially misdirected the jury on the third element of misconduct in public office. Although no fixed wording is required, the jury needed to be told that the threshold is high and that a deliberate breach of duty or trust, without more, does not suffice.

2. In cases concerning unauthorised provision of information to the media, the central inquiry is whether the deliberate disclosure had the effect of harming the public interest. That inquiry is objective and must take account of all the circumstances. Harm may arise from the information itself or from the manner in which it was obtained or supplied, including payment to a public official. Disclosure may remain a disciplinary breach even where it does not amount to a criminal abuse of the public’s trust.

3. The route to verdict and its footnote did not adequately direct the jury to decide whether the misconduct harmed the public interest. It was open to a properly directed jury to find that payment for information made the conduct sufficiently serious, but the court could not be sure that the jury would necessarily have convicted if correctly directed.

4. The court rejected the challenges to the accessory directions. Following Johnson v Youden [1950] KB 544, an aider and abettor must know the essential factual matters. He or she need not know or intend that those facts will lead a jury to find the seriousness threshold satisfied. It was sufficient that the jury considered only circumstances known to EFG or Ryan Sabey.

5. The conspiracy direction concerning IJK was also correct. Under section 1 of the Criminal Law Act 1977, the agreement had to intend ABC’s wilful breach of duty. The seriousness threshold was an evaluative judgment for the jury on circumstances known to IJK, not a fact or circumstance which section 1(2) required her to know or intend.

6. Non-disclosure of the jury notes was an irregularity, but the judge’s further direction sufficiently addressed the concern about deliberations. It did not affect the safety of the convictions. Ryan Sabey’s sole ground failed; he was given liberty to apply if advised in light of the ruling on the threshold direction.

• Court of Appeal (Criminal Division) — in [2015] EWCA Crim 539, granted leave to appeal. It quashed the convictions of ABC, EFG and IJK because of a material misdirection on the seriousness threshold. It rejected Ryan Sabey’s sole ground but gave him liberty to apply.
• Central Criminal Court — HH Judge Wide QC presided over jury trials. ABC, EFG and IJK were convicted on 5 November 2014. Paul Brunt and Ryan Sabey were convicted on 19 February 2015.