A. Introduction
The European Court of Human Rights (“ECtHR”) published its judgement in the case of Norman v UK (Application no. 41387/17) on the 6th of July, 2021. Mr Robert Norman, a prison officer at Belmarsh Prison, was convicted of misconduct in public office in 2015 for providing a tabloid journalist with a range of information in exchange for money. The newspaper subsequently disclosed his name to the police in the context of an investigation into allegations of inappropriate payments by newspapers to public officials. The applicant was prosecuted and convicted of misconduct in public office. The ECtHR ruled that the offence itself did not violate Article 7 ECHR (no punishment without law) in Mr Norman’s case as his behaviour was sufficiently serious for it to have been foreseeable that it would result in a criminal offence. The ECtHR also found that with regards to the newspaper’s police disclosure of Mr Norman’s activities, as well as his subsequent prosecution and conviction, there was no breach of his freedom of expression, governed under Article 10 of the ECHR.
B. Background Facts
Between 2006 and 2011, Mr Norman gave the journalist Stephen Moyes, on roughly 40 occasions, information on Belmarsh prison in exchange for £10,684 in payments. The information covered a wide range of subjects, prompting multiple articles in the Daily Mirror and News of the World. The information passed included the suspension of the prison chaplain for inappropriate behaviour with other inmates; the transfer of dangerous criminals to open prisons as a result of congestion at Belmarsh; and the transfer to the prison of John Venables (who was suspected of being Jamie Bulger’s killer). Mr Norman requested that a portion of the funds be made by check payable to his son.
As a result of revelations, widespread public concern arose about the conduct of some journalists working for certain newspapers in the United Kingdom, in particular the means by which they obtained stories. These included unlawful telephone hacking and corruption of public officials. As a result, the police initiated Operation Elveden, a criminal investigation into claims of improper payments by journalists to public authorities. In July 2021, the owner of the Daily Mirror, Mirror Group Newspapers (“MGN”) provided authorities with information on Mr Norman’s information-sharing activities and payments as part of this inquiry. Following that, Mr Norman was charged with misconduct in public office and sentenced to 20 months in prison.
In the UK Court of Appeal (R v Norman [2016] EWCA Crim 1564), Mr Norman’s appeal was dismissed, and he was not given permission to appeal to the UK Supreme Court. The case was then brought before the ECtHR.
C. Judgement in the UK Court of Appeal
Lord Thomas CJ, Popplewell J, and Goss J, sitting in the Court of Appeal, found that the newspapers had voluntarily agreed to assist the police with their investigation, and that the police had not used improper pressure to obtain the Appellant’s identity or the materials used to bring proceedings against him.
The court only dealt briefly with the appeal on Article 7 and concluded that there was no lack of certainty in the seriousness element of the offence of misconduct in public office. The court relied on the authority of R v Chapman [2015] 1 QB 883, where it had been made clear that the level of seriousness which had to be reached was defined by recognised criteria on which the jury were to be directed. The seriousness test was therefore sufficiently clear to enable a person, with appropriate legal advice if necessary, to regulate his behaviour and foresee whether such behaviour was capable of amounting to misconduct in public office.
With regards to Mr Norman’s rights under Article 10, the court found that his rights had not been interfered with. On this point, in a situation of a source whose identity is willingly divulged by a newspaper, the Court deemed it unclear whether Article 10 rights were invoked at all. Even though Article 10 safeguards journalists’ right to conceal journalistic material from the authorities, the Court concluded that journalists are under no responsibility to do so under European law until national legislation mandates it. Further, there are no laws in the United Kingdom that impose such a requirement on journalists. Even if the Article 10(1) right was invoked, it is a qualified right under Article 10(2), and hence the Appellant would not be protected in these circumstances. This is because the Appellant had committed a crime (misconduct in a public office). This indicated that the disclosure of his misbehaviour was essential and appropriate to the important public interest of pursuing a crime, and that his right could be violated as a result.
D. Judgement of the ECtHR
On Article 7 of the ECHR
On the facts of Mr Norman’s case, the ECtHR found that Article 7 of the ECHR had not been violated. The guidance in Attorney General’s Reference (No 3 of 2003) was adequate for the applicant to have predicted that his behaviour could be a criminal violation, according to the court. It stated that Mr Norman’s motivation for acting was based on the fact that he got paid for the information he gave. It claimed that his attempt to hide the payments by having some of the checks written out to his son demonstrated that he was well aware that what he was doing was unlawful and that the receipt of money may be used against him in any subsequent investigation into misconduct.
Mr Norman’s disclosures, according to the domestic courts, had major implications, including the demonization of convicts, suspicion of innocent members of staff, widespread animosity and mistrust within the jail, and the erosion of public confidence in the prison system. Those conclusions, according to the ECtHR, were not unexpected nor shocking. The ECtHR stated that, while the Law Commission’s final report expresses concern about the implementation of the seriousness criterion, Mr Norman’s case was not sufficiently borderline to render his prosecution and conviction unpredictable. Article 7 had not been breached.
On Article 10 of the ECHR
On the point of freedom of expression, Mr Norman claimed that (a) MGN’s revelation of his name to the police, and (b) his prosecution and conviction, infringed on his freedom to freely submit information to the press under Article 10 of the ECHR. To this end, the ECtHR ruled that the first of these grounds was inadmissible because MGN’s revelation could not be traced back to the UK government. Although MGN’s likely motivation was to prevent prosecution at a corporate level, this did not entail that the police had exerted excessive pressure on MGN to make the disclosure.
The ECtHR held that the offence of misconduct in public office was sufficiently prescribed by law and was sufficiently clear and predictable in the circumstances of Mr Norman’s case, just as it had in Mr Norman’s Article 7 application. The ECtHR held that Mr Norman’s prosecution and conviction were required in a democratic society because they pursued legitimate aims (such as the preservation of others’ reputations or rights, and the prevention of the disclosure of information received in confidence). Mr Norman’s claim that his disclosures were in the public interest was dismissed by the ECtHR. The majority of the information was deemed to be of no public interest by the UK courts, and Mr Norman was not predominantly motivated by public interest concerns. He hadn’t tried to make the material public through official channels or through his union, as he might have done if the public interest had been his only priority. Mr Norman was motivated by money and a profound loathing of the prison governor, according to the trial judge. On the other hand, due to the scope of his breach of duty, the harm he had caused, and the fact that he did so intentionally, there was a compelling public interest in prosecuting Mr Norman. As a result, there was no violation of Article 10.
E. Commentary and Conclusion
In the wake of this decision, there have been arguments raised that the ECtHR’s decision will have a chilling effect on free speech in the United Kingdom. The fear is that those in positions of power will be less likely to disclose information to journalists, resulting in a loss of freedom of the press.
To this end, article 10 clearly protects journalists from being forced to reveal their sources by the state. However, Mr Norman’s case is the first occasion the ECtHR has explored whether Article 10 applies to individual sources whose identities are willingly disclosed by a newspaper. The ECtHR’s decision on this point is clear: Article 10 provides no protection in this situation. As a result, the possibility that media companies will reveal their sources in order to avoid legal culpability for systemic wrongdoing at a corporate or senior level remains.
Specifically on this case, it was complicated by the fact that he was paid for the information he gave. Journalists are not uncommon in making payments to their sources, and some would argue that such payments are vital to facilitate access to information. However, given the Court of Appeal’s remarks in R v Chapman and the weight accorded to the payments received by Mr Norman by domestic courts, and now by the ECtHR, the position appears to be that any money received by a public official in exchange for information is likely to be criminal behaviour. This is somewhat unsurprising, given the zero-tolerance approach to bribes under the law.
Despite the fact that Mr Norman was driven by money and a disdain for the prison governor, the trial judge did admit that Mr Norman had real worries about the way the jail was administered, and that this was a motivating factor. In terms of the information itself, the courts determined that the majority of what Mr Norman revealed was not in the public interest. This suggests, however, that part of the information was in the public interest. Currently, the consideration of public interest appears to fall predominantly within limb (d) of the Attorney General’s Reference (No 3 of 2003) considerations; “Without reasonable excuse or justification (paragraph 60)”. The Law Commission proposes adopting an unique public interest defence, with the defendant bearing the burden of proof on the balance of probability. According to the Law Commission, the criteria should be: (a) whether it was in the public interest for the receiver to know the information provided; and (b) if the manner of disclosure was in the public interest (i.e., could the public official have used any alternative channels). Even this suggestion, however, does not provide much clarification.
Ultimately, even with this ECtHR decision, there are still unanswered questions lingering. First, it is plausible that knowing there are widespread systemic faults in a public service is in the public interest, even if it is not always in the public interest to be notified of each occurrence in isolation. It’s unclear how much weight should be given to a broader public interest in information released in bits and pieces. Second, at what point, over the course of several years, does the behaviour become foreseeably criminal? Based on the commentary by Joanna Curtis, it appears that we must expect public officials to (a) be able to determine what information is likely to be considered “in the public interest” by a jury and what information is not, (b) determine whether the public interest in making the disclosure outweighs any potential harm, and (c) be willing to disclose information for no other reason than the public interest. Society places a high level of faith in its public authorities, and it is, arguably, the responsibility of any official to carefully analyse any potential breach of that trust before acting.
In this decision, prima facie could be interpreted as the ECtHR approving the offence of misconduct in public office in its existing form, delaying any reform process. However, the ECtHR themselves noted in paragraph 69 of the judgement that “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. However, for the reasons outlined above, it does not consider the applicant’s prosecution and conviction to be such a case.”
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