Last Updated on July 6, 2021 by LawEuro
Information Note on the Court’s case-law 253
July 2021
Norman v. the United Kingdom – 41387/17
Judgment 6.7.2021 [Section IV]
Article 10
Article 10-1
Freedom to impart information
Justified prosecution and conviction of prison officer for providing information about prison to journalist in exchange for money: no violation
Article 7
Article 7-1
Nullum crimen sine lege
Foreseeable prosecution of prison officer for providing information about prison to journalist in exchange for money: no violation
Facts – The applicant – a prison officer at the relevant time – passed information about the prison he was working in to a tabloid journalist in exchange for money over the course of a number of years. In 2011, a public inquiry (“the Leveson Inquiry”) was launched into the conduct of some journalists working for certain newspapers in the UK, and the police launched a criminal investigation (“Operation Elveden”) into allegations of inappropriate payments by some journalists to public officials. The police requested from the owner of a newspaper, Mirror Group Newspapers (“MGN”), details of public officials who had been paid for information. A Memorandum of Understanding (“MoU”) was agreed between the police and MGN for the voluntary provision of material to the Operation. Within the framework of the MoU, MGN disclosed the name of the applicant to the police. The applicant was subsequently convicted of misconduct in public office and sentenced to twenty months’ imprisonment. The applicant unsuccessfully appealed against his conviction and sentencing.
Law – (a) Article 7:
The applicant contended that the content of the offence had been too vague to satisfy the requirements of Article 7; his challenge to the clarity of the offence had essentially concerned the seriousness test, one of four elements of the offence articulated by the Court of Appeal in Attorney General’s Reference (No 3 of 2003).
The Court’s starting point was the explanation of the seriousness test given in Attorney General’s Reference (No 3 of 2003). There, the Court of Appeal had pointed to the role played by the motive with which a public officer had acted, the circumstances in which the impugned conduct had occurred and the consequences of the breach, in establishing whether the requisite seriousness threshold had been attained.
The fact that the applicant had been paid to disclose the sensitive information in question indisputably pertained to his motive for acting and also formed part of the circumstances in which the conduct had occurred. It therefore ought to have been clear to him before embarking on his course of conduct that his accepting payment in exchange for stories was likely to be a factor which would be taken into account by the court in assessing whether the offence had been committed. The Court agreed with the trial judge that the fact that the applicant had chosen to have a number of cheques made out to his son had been capable of giving rise to the inference that he had known what he was doing was wrong and in breach of duty. In particular, the Court considered that the attempt to conceal the payments demonstrated that the applicant had been well aware of the potential role that the payment of money might have played in any subsequent investigation of wrongdoing. The applicant had argued that the importance of payment to the establishment of the offence had not been fully evident until a subsequent domestic court judgment. However, payment had only been one of the elements taken into consideration by the domestic authorities in establishing the requisite seriousness threshold for the offence. The Court further reiterated that Article 7 did not preclude the gradual clarification of the rules of criminal liability through judicial interpretation, and that any development in subsequent case-law had been consistent with the essence of the offence and could have been reasonably foreseen.
It must also have been apparent to the applicant from Attorney General’s Reference (No 3 of 2003) that the consequences of his actions would be taken into account when establishing whether the seriousness test had been met. The domestic courts had pointed to the suspicion that had fallen on innocent members of staff as a result of the leaks by an unknown source, the damage to prisoners demonised in the press and the general enmity and mistrust that the leaks had caused both within the prison population and between prisoners and staff; and that the corruption of a prison officer on the scale present in the applicant’s case had undermined public confidence in the prison service. Those consequences had been serious and none of the conclusions by the domestic courts could be said to have been unforeseeable or surprising.
Finally, the description of the seriousness test itself in Attorney General’s Reference (No 3 of 2003) tended to suggest that the scope and scale of the behaviour in question could have been a relevant factor when assessing seriousness. As pointed out by the domestic courts, the applicant had disclosed information to a newspaper in exchange for payment on forty occasions over a period of five years in flagrant breach of rules of which he had been well aware. The applicant had argued that his behaviour ought to have been sanctioned only in disciplinary proceedings rather than by way of a criminal prosecution. However, conduct did not fall outside the scope of the criminal law merely because it also constituted a disciplinary offence.
The Court did not exclude that there might be cases in which, given their specific facts, prosecution and conviction for misconduct in public office were arguably not foreseeable. However, for the reasons outlined above, it did not consider the applicant’s prosecution and conviction to be such a case. Overall, the Court was satisfied that the applicant ought to have been aware, if necessary after having sought legal advice, that by providing internal prison information to a journalist in exchange for money on numerous occasions over a five-year period, he had risked being found guilty of the offence of misconduct in public office.
Conclusion: no violation (unanimously).
(b) Article 10:
(i) The disclosure of the applicant’s identity
The applicant complained that the disclosure by MGN had not been voluntary but had resulted from improper pressure from the police and had therefore been akin to the compelled disclosure by the State of his name as a journalistic source. However, as the Court of Appeal had pointed out, the reference by the trial judge to the motivation of MGN in assisting the police could not be equated to a finding that pressure had been put on MGN to disclose the applicant’s name. The terms of the MoU had allowed MGN to refuse to disclose information on Article 10 grounds, including the right to protect journalistic sources. MGN had enjoyed access to legal advice and, as the Court of Appeal had found, it was inconceivable that they had not given careful consideration to whether to make the disclosure to the police in the context of the publicity which Operation Elveden and the Leveson Inquiry had been attracting. In those circumstances, the Court accepted the finding that the disclosure had been “truly voluntary”.
In the absence of any compulsion on MGN to disclose the applicant’s name, the applicant had failed to demonstrate that the disclosure had been attributable to the respondent State and it could not be said that merely by requesting the information, agreeing an MoU or accepting receipt of the information, the police had interfered with the applicant’s Article 10 rights.
Conclusion: inadmissible (unanimously).
(ii) The prosecution and conviction of the applicant
The prosecution and conviction had been prescribed by law and pursued the legitimate aims of the interests of public safety, the prevention of disorder or crime, the protection of health or morals, the protection of the reputation or rights of others and the prevention of the disclosure of information received in confidence.
As to whether the applicant’s prosecution and conviction had been necessary in a democratic society, there could be no doubt that the applicant had knowingly engaged in a course of conduct contrary to the requirements of his public office and that the scope and scale of his unlawful conduct had been significant. The Court also attached significant weight in that context to the serous harm caused to other prisoners, to staff and to public confidence in the prison as a result of the applicant’s behaviour. There had therefore been a strong public interest in prosecuting him, in order to maintain the integrity and efficacy of the prison service and the public’s confidence in it.
On the other hand, the domestic courts had noted that there had been no public interest in the majority of the information disclosed by the applicant, nor had he been primarily motivated by public interest concerns: instead, the sentencing judge had found that the applicant had been motivated by money and by an intense dislike of the prison governor. Since the applicant, moreover, had not claimed before the Court to have acted as a whistle-blower, there was no need for the Court to enquire into the kind of issue which had been central in the case-law on whistle-blowing, namely whether there had existed any alternative channels or other effective means for the applicants to remedy the alleged wrongdoing which the applicants had intended to uncover (compare Guja v. Moldova [GC]). The Court nonetheless observed that the sentencing judge had pointed to the fact that, as a trade union representative, the applicant could have used official channels to disseminate information had the public interest been his sole concern.
The reasons for the applicant’s prosecution and conviction had therefore been relevant and sufficient.
Conclusion: no violation (unanimously).
(See also Guja v. Moldova [GC], 14277/04, 12 February 2008, Legal Summary)
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