Jailing of prison officer for misconduct in public office did not breach his Human Rights

European Court of Human Rights
Published August 30, 2021
Norman v United Kingdom
Before Y Grozev, President, and Judges T Eicke, F Vehabovi, I A Motoc, A Harutyunyan, G Kucsko-Stadlmayer and A M Guerra Martins
Deputy Section Registrar: I Freiwirth
(Application No 41387/17)
Judgment July 6, 2021

The prosecution and conviction of a prison officer for the common law offence of “misconduct in public office” for revealing information about a prison to journalists in return for payment had not been a breach of his human rights.

The European Court of Human Rights so held in finding that there had been no breach of the rights of the applicant, Robert Norman, under either article 7 (that there should be no punishment without law) or article 10 (the right to freedom of expression) of the European Convention on Human Rights, in proceedings he brought against the United Kingdom.

The Court said that the applicant had been a prison officer at HMP Belmarsh, a high-security prison whose inmates included a number of notorious criminals.

Between May 2006 and April 2011 he passed information about the prison to a tabloid journalist on about 40 occasions in exchange for money totalling £10,684. The information supplied formed the basis of numerous published articles in the Daily Mirror and News of the World. The stories for which his information was the source ranged from general stories in which individuals were not identified to specific or personal stories in which prisoners or staff were named or identifiable.

Mirror Group Newspapers (MGN) subsequently disclosed the applicant’s name to the police in the context of an investigation into allegations of inappropriate payments by newspapers to public officials.

The applicant was arrested and charged with misconduct in public office, a common law offence which was made out where a public officer, acting as such, wilfully neglected to perform his duty and/or wilfully misconducted himself to such a degree as to amount to an abuse of the public’s trust in the office holder, without reasonable excuse or justification. He was convicted by the jury and sentenced to 20 months’ imprisonment.

As to the article 7 challenge the applicant submitted that at the material time it had not been possible for him to foresee that by breaching the general rules of his employment he would be subject to criminal trial and imprisonment.

He did not dispute that the elements of the offence of misconduct in public office had been clearly articulated by the Court of Appeal in Attorney General’s Reference (No 3 of 2003) ([2005] QB 73). His challenge to the clarity of the offence essentially concerned the element of “seriousness” of the misconduct.

With regard to seriousness, the Court of Appeal had pointed to the role played by the motive with which a public officer acted, the circumstances in which the impugned conduct 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 occurred. It therefore ought to have been plain to him before embarking on his course of conduct in 2006 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 criminal offence of misconduct in public office had been committed.

The fact that the applicant had chosen to have a number of cheques made out to his son had been an attempt to conceal the payments and demonstrated that he was well aware of the potential role that the payment of money might play in any subsequent investigation of wrongdoing.

It also had to have been apparent to the applicant from the Court of Appeal’s decision that the consequences of his actions would be taken into account when establishing whether the seriousness test was met.

In the applicant’s case the sentencing judge 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.

On the applicant’s appeal the Court of Appeal agreed with those findings, adding that corruption of a prison officer on the scale present in the applicant’s case undermined public confidence in the prison service. Those consequences were considered to be serious. None of the conclusions by the domestic courts could be said to have been unforeseeable or surprising.

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 risked being found guilty of the offence of misconduct in public office. There had therefore been no violation of article 7 of the Convention.

The applicant further complained that the disclosure of his identity by MGN to the police and his subsequent prosecution and conviction violated his right to protection as a journalistic source under article 10 of the Convention.

However, 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. In his sentencing remarks, the judge recorded the applicant’s own concession in evidence that on a number of occasions he had disclosed information when the public interest had nothing at all to do with what he was disclosing. The judge found as fact that the applicant had been motivated by money and by an intense dislike of the prison governor.

Since the applicant moreover did not claim to have acted as a whistle-blower, there was no need to inquire into the kind of issues which were central in whistleblowing cases, namely, whether there had existed any alternative channels or other effective means for the whistleblower to remedy the alleged wrongdoing which the whistleblower intended to uncover.

It should nonetheless be observed that, as a trade union representative, the applicant could have used official channels to disseminate information had public interest been his sole concern.

This article first appeared on The Times

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