Whose Article 10 rights – the journalist or the confidential source?

October 24th, 2016

Does a media corporation breach a source’s article 10 rights by voluntarily disclosing their identity to the police? Is source confidentiality lost by criminal conduct? These are the questions that the Court of Appeal had to grapple with in the appeal against conviction brought by former prison officer Robert Norman.

The appellant had been convicted of misconduct in public office for providing information about Belmarsh Prison to Stephen Moyes, a journalist at the Daily Mirror and later at the News of the World.

The information was mixed – stories about named prisoners (Abu Hamza, John Venables and Steven Wright amongst others), bad practice within the prison (sexual relationships between staff and prisoners, staff cuts and a prison suicide) and tittle-tattle (a ban on topless pin ups). The appellant had been paid in excess of £10,000 for the information.

The appellant’s name came to light as a result of a police inquiry named Operation Elveden. This inquiry was formed during the ‘phone hacking’ investigation where information was obtained tending to show that journalists had paid police officers for information.

Both News International and the Mirror Group had set up written protocols under which they agreed to provide information to assist the police. Under this agreement, the Mirror Group provided the police with material which identified the appellant as having received corrupt payments. In other words, they provided information identifying a confidential source. Following further investigation by the police, information was also sought and received from News International.

As part of his appeal against conviction, the appellant sought to argue that the case should have been stayed as an abuse of process. He argued that his identity and the material upon which his prosecution depended was improperly obtained by the police, putting pressure upon the newspapers to give disclosure that they could not obtain under warrant (a production order may not be made under PACE for journalistic material which is “excluded material”, namely if it is held in confidence pursuant to an express or implied undertaking to hold it in confidence). The appellant also argued that there was a breach of his Article 10 ECHR rights.

Police Coercion

The Court of Appeal was quick to rebut the suggestion that there was anything improper in the agreements that the police had reached with the newspapers. It stated (at [30]): “The disclosure by the newspapers was not procured by any improper pressure or coercion. It was truly voluntary. There was no misconduct by the MPS in receiving voluntary disclosure from the newspapers or in acting upon it”. So far, not particularly controversial.

 Article 10 ECHR

The most interesting part of this judgment concerns article 10 ECHR. As we know from R (Miranda) v the Secretary of State for the Home Department [2016] EWCA Civ 6: “the Strasbourg jurisprudence requires prior, or (in an urgent case) immediate post factum, judicial oversight of interferences with article 10 rights where journalists are required to reveal their sources”. But what about the article 10 rights of the source?

First, the Court queried whether article 10 rights were engaged. It stated at [32]:

There is room for doubt whether article 10 rights are engaged at all in the case of a source whose identity is voluntarily disclosed by the newspaper. In Recommendation No R (2000) 7 of the Committee of Ministers of the Council of Europe, adopted by the Committee on 8 March 2000 (“the 2000 Recommendation”), it is made clear that whilst the right of journalists to withhold journalistic material is an important right whose protection article 10 is intended to secure, there is no concomitant obligation on journalists inherent in article 10.” [emphasis added].

So, whilst Article 10 protects journalists from revealing their sources, it does not necessarily oblige journalists (or in this case, their employers) to maintain that protection. This may come as some concern to sources.

Second, it observed that article 10 is a qualified right, which did not protect the appellant in the circumstances of his misconduct. The Court stated (at [34]):

“Assuming in the appellant’s favour that article 10(1) is engaged, so as to provide him with a prima facie right to protect his anonymity as a source despite the newspapers’ voluntary disclosure, we have little doubt that the use of the material in his prosecution in the particular circumstances of this case would fall within the qualification provided for in article 10(2)… it amounted, as the jury found…to the commission by the appellant of the serious criminal offence of misconduct in public office. Revelation of his wrongdoing would be necessary and proportionate for the important public interests of prosecuting a crime which exists, in this context, to maintain the integrity and efficacy of the prison service and the public’s confidence in it” [emphasis added].

So, if the revelation is for the purpose of prosecuting a crime, it would appear to be proportionate. BUT, this leaves an obvious question for media companies – how are they to know whether the information would support a prosecution or if it is genuine whistle-blowing? The Court observed (at [34]):

“Different considerations might arise in the case of a genuine whistleblower seeking to act in the public interest, where the only wrongdoing might lie in breach of obligations to the employer rather than in the circumstances of the communication to the journalist. In the appellant’s case the expression whose freedom he claims to be protected is itself serious criminal conduct.”

Good news, it seems, for us lawyers, who will have to advise on whether a source is a “genuine whistleblower” whose identity should be protected. We will need to make some pretty big calls about whether the prison suicide or understaffing stories fall into this category, and can be distinguished from tittle-tattle about a ban on topless pin ups.

The PACE argument

For those interested in the more criminal aspects of this case, there is also an interesting discussion about the requirements to obtain a production order for journalistic material.

The appellant argued that the police deliberately or incompetently circumvented article 10 because the only legitimate procedure for obtaining journalistic material of this kind was by seeking a production order; and that they knew that such a course would be unsuccessful in this case, both because it could not define the material to be sought with sufficient specificity, and because the material was excluded material which could not be ordered to be disclosed.

The Court of Appeal answered this as follows:

There could be no violation of the appellant’s article 10 rights had the newspapers revealed his wrongdoing but redacted the material so as to preserve his anonymity. In those circumstances a production order could have been framed with sufficient particularity to then obtain his identity. Why? Because the appellant’s unlawful conduct removed his protection. The Court stated (at [39]):

“The material so sought would not have amounted to “excluded material” because it would not have been impressed with the necessary quality of confidentiality to bring it within section 11. It is well established in the context of legal professional privilege that a communication made in furtherance of a crime prevents the privilege from arising by reason of what is commonly called the iniquity exception…The appellant’s communications with Mr Moyes were in furtherance of his criminal conduct and so attracted no confidentiality. They are not therefore excluded material for the purposes of a PACE production order. The position might be otherwise for a genuine whistleblower acting in the public interest whose conduct vis a vis the journalist would retain its express or implied undertaking of confidentiality.”

The above quote is also of interest more generally – why didn’t, for example, the Court of Appeal in the David Miranda case find that, like Mr Norman, no confidentiality attached to material which was in furtherance of criminal conduct? I will have to leave that to others to address.

In the end none of this really mattered for the appellant. Even if there had been some misconduct on the part of the MPS, or some violation of article 10, the appellant could not satisfy the high test for an abuse of process and his appeal therefore failed.

Julian Blake

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