France v R.

In a media case involving alleged misconduct in public office, a jury must receive directions tailored to the factual context when deciding whether the official’s conduct was sufficiently serious to amount to an abuse of public trust and caused harm to the public interest. A breach of an employer’s trust, or payment for information, does not itself establish criminal misconduct. The judge should assist the jury on factors bearing on the nature of the information, including whether it was trivial, inconsequential or likely to enter the public domain. References to confidential information require explanation where the information was merely held in confidence through public employment. A conviction may be unsafe where shortcomings in these directions have a cumulative effect.

The appellant, a junior crime reporter at The Sun, was convicted at the Central Criminal Court of encouraging a serving police officer to commit misconduct in public office. The officer had supplied information for payment, and the appellant wrote articles using that information and submitted payment forms.

The prosecution accepted that journalists do not commit an offence merely by buying information from a public official. Its case was that the manner of provision harmed the public interest. The defence contended that the information was largely trivial, likely to enter the public domain, and that publication did not harm, and could serve, the public interest.

The appeal challenged the adequacy of the judge’s directions on the seriousness threshold, harm to the public interest, confidential information, and reasonable excuse or justification.

1. Appeal allowed. The court granted an extension of time, gave leave to appeal, quashed the conviction, and invited written submissions on consequential orders.
2. The judge correctly stated the elements of misconduct in public office and repeatedly stressed that criminal misconduct must be sufficiently serious. However, in a case involving information supplied to the media, that was insufficient. Applying R v Chapman and others [2015] 2 Cr App R 10, the court held that the jury required practical assistance on how to assess both seriousness and harm to the public interest in the particular factual context.
3. The jury should have been directed to consider whether the information was so trivial or inconsequential that its disclosure could not, in the circumstances, harm the public interest. A breach of the trust owed to an employer is not equivalent to an abuse of the public’s trust. Nor does payment for information conclusively establish the required harm.
4. The route to verdict was potentially misleading because it referred without explanation to confidential information. Information acquired or held in confidence through public office is not necessarily confidential in the sense of being secret or sensitive. The judge should have explained that distinction or removed the reference. The written directions also risked detaching reasonable excuse or justification from its proper place as a distinct element of the offence.
5. Although none of the defects might alone have made the conviction unsafe, their cumulative effect meant that the jury had not received legally adequate directions tailored to the case. The conviction was therefore unsafe.

• Court of Appeal (Criminal Division): Granted an extension of time and leave to appeal, allowed the appeal against conviction, and quashed the conviction.
• Central Criminal Court: On 22 May 2015, convicted the appellant of encouraging misconduct in public office and imposed a suspended sentence, unpaid work, costs and a surcharge.