Misconduct in public office – ECtHR reviews foreseeability of common law offence

6 September 2021 by Joanna Curtis

On 6 July 2021 the European Court of Human Rights (ECtHR) published its judgment in the case of Norman v UK (Application no. 41387/17).  The case concerned Mr Robert Norman, an officer at Belmarsh prison, who in 2015 was convicted of misconduct in public office for passing a variety of information to a tabloid journalist in exchange for money. The ECtHR found that, in Mr Norman’s case, the offence itself did not constitute a breach of Article 7 ECHR (no punishment without law): Mr Norman’s conduct was sufficiently serious for it to have been foreseeable that it would constitute a criminal offence. The ECtHR also found that the newspaper’s disclosure of Mr Norman’s activities to the police, and his subsequent prosecution and conviction, did not breach his rights under Article 10 ECtHR (freedom of expression).

Background

On around 40 occasions between 2006 and 2011 Mr Norman passed information about Belmarsh prison to the journalist Stephen Moyes, in exchange for payments totalling £10,684. The information covered a variety of topics and led to numerous articles in the Daily Mirror and the News of the World. Examples include: the suspension of the prison chaplain for inappropriate behaviour with other prisoners; violent prisoners being transferred to open prisons as a result of overcrowding at Belmarsh; and the transfer to the prison of what was believed to be Jamie Bulger’s killer, John Venables. Mr Norman requested that a number of the payments be made by way of cheque made out to his son.

In 2011, in the wake of the press phone hacking scandal, the police launched a criminal investigation known as Operation Elveden into allegations of inappropriate payments by journalists to public officials. As part of this investigation, Mirror Group Newspapers (“MGN”) provided details to the police of Mr Norman’s information-sharing activities and payments. Mr Norman was subsequently tried and convicted of misconduct in public office and sentenced to 20 months’ imprisonment. 

Mr Norman’s appeal was dismissed in the Court of Appeal (R v Norman ([2016] EWCA Crim 1564) and he was refused permission to appeal to the Supreme Court.

Article 7 (no punishment without law)

Article 7 of the European Convention on Human Rights reads:

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. […]

It is implied under Article 7 that the law in question be foreseeable: an individual should be able to know from the wording of the law, if need be with appropriate legal advice, what acts and omissions will make him criminally liable.

The leading modern case defining the offence of misconduct in public office is the Court of Appeal’s decision in Attorney General’s Reference (No 3 of 2003) ([2004] EWCA Crim 868). This was the leading case at the time when Mr Norman carried out his offences. In that case, the Court of Appeal set out the elements of the offence as follows:

… (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.

Mr Norman’s application under Article 7 ECHR relied on the third element of the offence, the “seriousness test”. In Attorney General’s Reference (No 3 of 2003) the Court of Appeal set out the following factors to be considered in relation to the seriousness test: (a) that the threshold is a high one; (b) the motive with which a public officer acts; (c) the consequences of that action; and (d) that the misconduct must be of such a degree so as to be calculated to injure the public interest (paragraphs 56-59 of Attorney General’s Reference). 

After Mr Norman’s conviction the Court of Appeal decided a further key case on misconduct in public office: R v Chapman and others ([2015] EWCA Crim 539). In that case, the Court of Appeal expressly stated (by way of example) that a public officer holder’s receipt of payment in exchange for information would constitute harm to the public interest (paragraph 36 of R v Chapman). 

Mr Norman argued, however, that the seriousness test remained too vague as to be lawful. Mr Norman said that at the time he passed information to Mr Moyes, the specific guidance given in R v Chapman had not been foreseeable and he could not have foreseen that he would be subject to criminal prosecution. He relied on comments made by the Law Commission in 2016, which said that:

The lack of comprehensive guidance as to what makes misconduct “serious” … is particularly difficult in terms of making decisions as to where the line should be drawn between disciplinary and criminal proceedings.

Law Commission’s Consultation Paper No. 229 of 5 September 2016 (Reforming Misconduct in Public Office)

and

the seriousness threshold – that the offence amounts to an ‘abuse of the public’s trust’ – is highly subjective and difficult to apply. This has led to concern that the offence is being pursued in some circumstances that are not sufficiently blameworthy so as to justify criminal consequences.

Law Commission’s final report and recommendations on Misconduct in public office, published on 4 December 2020

The ECtHR held that, on the facts of Mr Norman’s case, Article 7 ECHR was not breached. It said that the guidance in Attorney General’s Reference (No 3 of 2003) was sufficient for the applicant to have foreseen that his conduct could constitute a criminal offence. It said the fact that Mr Norman was paid for the information he provided pertained to his motive for acting. It said that his attempt to conceal the payments, by asking for some of the cheques to be made out to his son, showed that he was well aware that what he was doing was wrong and that the receipt of money might play a role in any subsequent investigation into misconduct. According to the domestic courts, Mr Norman’s leaks, and their scale, had led to serious consequences including the demonisation of prisoners, suspicion falling on innocent members of staff, general enmity and mistrust within the prison, and the undermining of public confidence in the prison service. The ECtHR said those conclusions were neither unforeseeable nor surprising. It said that although the Law Commission’s final report notes concern over the application of the seriousness threshold, the ECtHR did not consider Mr Norman’s case to be sufficiently borderline so as to render his prosecution and conviction unforeseeable. There was no breach of Article 7.

Article 10 (freedom of expression)

Mr Norman argued that (a) the disclosure of his name by MGN to the police, and (b) his prosecution and conviction, breached his rights under Article 10 ECHR to freely provide information to the press. 

The ECtHR declared the first of these grounds inadmissible because disclosure by MGN could not be attributed to the UK state. Although MGN’s likely motive was the avoidance of prosecution at the corporate level, such a motive did not mean that the police had put undue pressure on MGN to make the disclosure.

Regarding Mr Norman’s prosecution and conviction the ECtHR found, as it had in relation to Mr Norman’s Article 7 application, that the offence of misconduct in public office was sufficiently prescribed by law and was sufficiently clear and foreseeable in the circumstances of Mr Norman’s case. Applying Article 10, the ECtHR found that Mr Norman’s prosecution and conviction pursued legitimate aims (including the protection of the reputation or rights of others and the prevention of the disclosure of information received in confidence) and were necessary in a democratic society. The ECtHR dismissed Mr Norman’s argument that his disclosures had been in the public interest. The UK courts had found no public interest in the majority of that information, nor had they found Mr Norman to have been primarily motivated by public interest concerns. He had not attempted to disclose the information via official channels or via his trade union, as he might have done had the public interest been his sole concern. The trial judge had noted that Mr Norman was motivated by money and by a strong dislike of the prison governor. Conversely, there was a strong public interest in prosecuting Mr Norman due to the scale of his breach of duty, the harm he had caused, and the fact that he did it knowingly. There was therefore no breach of Article 10.

Commentary

Some will say that the ECtHR’s judgment will have a chilling effect on free speech in the UK. The concern is that individuals working in public office will be less likely to provide information to journalists, and that this will ultimately damage press freedom.

It is clear that Article 10 protects journalists from being compelled by the state to disclose their sources (see ECtHR’s Article 10 Guidance Note). But Mr Norman’s case is the first time that the ECtHR has considered the applicability of Article 10 to individual sources where a newspaper voluntarily discloses the source’s identity. On this question the ECtHR’s judgment is clear: Article 10 offers no protection in this circumstance. The risk therefore persists that media corporations may disclose their sources to avoid potential liability for systemic malpractice at a corporate or senior level. 

A key factor in Mr Norman’s case was the fact that he received payments for the information he provided. It is by no means uncommon for journalists to make payments to their sources, and some would argue that such payments are necessary in order to facilitate access to information. However, given the Court of Appeal’s comments in R v Chapman and the weight given by the domestic courts, and now by the ECtHR, to the payments received by Mr Norman, the position appears to be that any payment received by a public official in exchange for information is likely to constitute criminal conduct. This is in line with the zero-tolerance approach under bribery law, so is perhaps unsurprising.

Other factors of note in Mr Norman’s case are that (a) he provided a variety of information on a range of topics, and (b) he was said to have mixed motives for providing that information. 

Although Mr Norman was found to be motivated by money and by dislike of the prison governor, the trial judge did acknowledge that he had genuine concerns about the manner in which the prison was run and that this was a motivating factor.

Regarding the information itself, the courts held that in the majority of what Mr Norman disclosed there was no public interest. This implies, however, that it was in the public interest to know some of the information. 

Currently the consideration of public interest seems to fall primarily within limb (d) of the factors set out in Attorney General’s Reference (No 3 of 2003) (reasonable excuse or justification). In its proposals for reforming the offence, the Law Commission advocates introducing a specific defence of public interest, with the burden of proof on the defendant on the balance of probabilities (Final report dated 4 December 2020, paragraph 5.99-5.131) The Law Commission suggests that the test be: (a) whether it was in the public interest for the information disclosed to be known by the recipient; and (b) whether the manner of the disclosure was in the public interest (i.e., could the public official have used any alternative channels). But even this proposal does not provide much real clarity. Two issues arise from the facts of Mr Norman’s case, which remain unanswered:

Firstly, it is conceivable that it could be in the public interest to know that there are widespread systemic problems in a public service, even if it is not necessarily in the public interest to be informed of each instance in isolation. It is not clear what weight should be given to a cumulative public interest in information disclosed in a piecemeal way.

Secondly, during a course of conduct spanning several years, at what point does the conduct become foreseeably criminal? 

It seems that we must expect public office holders to (a) be able to discern what information a jury is likely to consider is “in the public interest” and what is not, (b) identify whether the public interest in making the disclosure outweighs any harm that may be caused, and (c) be willing to disclose information for no motive other than the public interest. Society places a degree of trust in its public officials, and arguably it is the responsibility of any official to make a careful assessment before breaching that trust. But even if Mr Norman had had the benefit of legal advice when making some or all of his disclosures, could that really have provided sufficient foreseeability as to whether the public interest was being served?

At a glance, the decision in Norman v UK might be taken as the ECtHR giving the green light to the offence of misconduct in public office in its current form and it is possible that any process for reform may be delayed. However, the decision in Norman is only that on the facts of that case is Article 7 not offended. As the ECtHR said:

The Court does not exclude that there may be cases in which, given their specific facts, prosecution and conviction for misconduct in public office were arguably not foreseeable.

Isn’t this tantamount to a conclusion that the offence is in fact not compliant with Article 7 or Article 10?