Norman, R v

Police do not circumvent the production-order regime in the Police and Criminal Evidence Act 1978 by accepting genuinely voluntary disclosure of journalistic material. The fact that a media organisation may hope to avoid corporate prosecution does not establish improper police pressure.

Assuming that a source has an article 10 right to anonymity despite voluntary disclosure, that right is qualified. It does not protect a public officer’s prolonged, paid and corrupt disclosures which amount to serious criminal conduct. Misconduct in public office requires conduct sufficiently serious to abuse the public’s trust. In media cases, harm to the public interest is the principal measure of seriousness and may arise from the information disclosed or from its corrupt method of disclosure.

The appellant, a prison officer at HMP Belmarsh, was convicted at the Central Criminal Court of misconduct in public office. Over about five years, he supplied prison information to a journalist for payments totalling £10,684. The information generated numerous newspaper articles and was supplied without his employer’s authority.

His identity emerged during Operation Elveden after voluntary disclosure by Mirror Group Newspapers Limited and, later, News International. He appealed against conviction on two grounds: that the proceedings should have been stayed as an abuse of process because the material had been obtained through improper pressure and in breach of article 10; and that there was no case to answer because his conduct lacked the seriousness required for misconduct in public office.

1. Appeal dismissed. The conviction was safe. There was no basis for a stay as an abuse of process and the evidence was capable of proving misconduct in public office.

2. The newspapers’ disclosures were genuinely voluntary. Their possible wish to avoid corporate prosecution did not show pressure, coercion, threat or promise by the Metropolitan Police Service. The police were entitled to act on information voluntarily supplied by a suspect organisation. Its source may affect evidential weight, but not the propriety of bringing a prosecution.

3. The court did not need to decide whether a source retains an article 10 right to anonymity when a newspaper voluntarily identifies that source. Assuming such a right, its interference was justified under article 10(2). The appellant’s communications were paid, corrupt conduct by a public officer over a prolonged period, rather than protected whistleblowing. Revealing and prosecuting that conduct was necessary and proportionate to protect the integrity and public confidence of the prison service.

4. The Police and Criminal Evidence Act 1978 encourages voluntary disclosure before compulsion is sought. Accepting it was therefore not a circumvention of the production-order scheme. Further, communications made in furtherance of crime lacked the confidentiality needed to be excluded journalistic material. If disclosure had identified wrongdoing but preserved anonymity, a sufficiently specific production order could have obtained the appellant’s identity.

5. The offence has the four elements stated in Attorney General’s Reference (No 3 of 2003) [2004] 2 Cr App R 23 and R v Chapman, R v Sabey [2015] 2 Cr App R 10. Its third element requires serious misconduct which abuses the public’s trust. In a media-disclosure case, the jury must assess objectively whether the breach harmed the public interest. The scale of the payments, the sustained corrupt relationship, the resulting effect on confidence, morale and prison management, and particular disclosures about staff, entitled the jury to find that threshold met.

6. The seriousness standard was sufficiently certain for article 7 purposes. Rule 67 of the Prison Rules could be read down only so far as article 10 required, and did not protect conduct amounting to the serious offence proved here.

• Court of Appeal (Criminal Division). The appellant’s conviction appeal was dismissed in [2016] EWCA Crim 1564.
• Central Criminal Court. Following the trial before HHJ Marks QC, the appellant was convicted on 1 June 2015 of misconduct in public office and sentenced to 20 months’ imprisonment the following day. The judge had refused a stay for abuse of process and a submission of no case to answer.
• Court of Appeal (Criminal Division). A separate appeal against sentence was dismissed on 22 September 2015.