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Magazine of the Chartered Institute of Journalists

Protecting the sources- CIoJ thanked for supporting European Court challenge

Former Belmarsh prison officer Robert Norman and his lawyers have thanked the Chartered Institute of Journalists for supporting their appeal to the European Court of Human Rights against a 20 month jail sentence for providing news stories to popular newspapers over a five year period.

Courtroom of the European Court of Human Rights
Image: Adrian Grycuk CC BY-SA 3.0 pl

The Institute provided a 22,000 word affidavit arguing in the strongest terms that he should have been protected by Article 10 freedom of expression as a public interest journalist source.

It also supported his argument that he should not have been prosecuted for ‘misconduct in public office’ as it was not a legitimate law known at the time for criminalising public officials giving information to journalists.

Mr Norman and the journalist he was talking to, Stephen Moyes, had no idea they could have been prosecuted for a medieval common law offence later condemned by the Law Commission as ‘outdated and unclear.’

Mr Norman was a trade union official for the Prison Officer’s Association at the high security prison in south east London.

He was not paid for the first story but later received £10,684 for 40 disclosures of information over five years.

Mr Moyes was able to write and publish a number of stories which included an improper relationship between a woman warder and prisoner, the suspension of a prison chaplain for inappropriate behaviour with inmates, attacks and plots to kill staff, the demands of Abu Hamza on the prison service, the suicide of a prisoner, and other concerns about the prison’s security.

Mr Moyes told Press Gazette the ‘stories were entirely in the public interest and would have remained hushed up by the authorities had he not acted as whistle-blower in a bid to improve safety and conditions for prison staff and the public.’

Robert Norman had been promised confidentiality but the Mirror’s publisher, Trinity Mirror (now known as Reach), revealed the payments they had made to him to the Metropolitan Police.

The Met were conducting Operation Elveden and would later prosecute and convict Mr Norman and 33 other public officials for receiving payments from tabloid papers such as The News of the World, Sun and Daily Mirror.

Infographic released by the Metropolitan Police at the conclusion of their Operation Elveden inquiry into payment by journalists to public officials for information.
Image: Metropolitan Police.

Mr Norman lost his job, home and savings. All but one of the journalists arrested and prosecuted would be acquitted, have charges dropped against them, or their convictions overturned.

One reporter pleaded guilty and received a non-custodial sentence.

The European Court unanimously rejected Mr Norman’s appeal. The judges in Strasbourg said there had 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.’

They said that Mirror Group Newspapers had made a ‘truly voluntary’ disclosure to the Police. There had been a memorandum of understanding that allowed MGN to refuse to disclose information on Article 10 grounds, including the right to protect journalistic sources.

They also decided Mr Norman ought to have been aware 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.

Robert Norman’s QC Keir Montieth from Garden Court Chambers thanked CIoJ President Professor Tim Crook for his ‘excellent and outstanding contribution to the application.’

Mr Norman also said he and his wife were very grateful for ‘the research and help provided in our quest for justice.’

The Institute believes the courts should have recognised that the Met Police had put pressure on papers to hand over sources for prosecution.

Professor Crook said the European Court had been wrong in law not to give protection to journalists’ sources revealed to the police by publishers, and to criminalise public officials giving stories to journalists in the public interest.

He said: ‘The Institute is proud to have supported Mr Norman’s appeal. He was fully entitled to Article 10 freedom of expression protection from newspaper publishers, police and legal system and did not get it.’

He added: ‘Mr Norman deserves great credit for his dignity and courage throughout his ordeal.’

The CIoJ believes Mr Norman’s case and other recent developments in media law leave the protection of journalists’ sources in a grave state of precarity.

The notorious Section 2 of the 1911 Official Secrets Act was abolished in 1989 to halt the unjust criminalisation of any public official talking to journalists.

It is clear misconduct in public office was cynically fashioned by government to replace it knowing its common law character meant there would be no limit on the length of prison sentences that could be imposed.

The Bribery Act of 2010 provides no formal public interest defence for sources and the journalists they are talking to.

Bribery crimes affect any exchange of favour or reward between journalists and sources in public and private employment.

The draconian nature and reach of this legislation means it is virtually impossible to hire specialist consultants to provide guidance, analysis and advice while still working in sectors and industries requiring public interest news coverage.

The Investigatory Powers Act 2016 gives open season for government agencies to chase down leaks by secretly snooping into the mobile, online and computer communications of journalists and their sources.

The oversight, currently managed by a team of judicial commissioners headed by Sir Brian Leveson, refuses to identify publishers, journalists or sources hacked into or under surveillance.

The recent Home Office consultation on replacing the Official Secrets Act advocates criminalising civil servants talking to journalists as spies with no right to any public interest defence, and prison sentences of up to 14 years.

The Norman case confirms that working journalists cannot rely on their employer publishers to continue the confidentiality promised to their sources if put under pressure by investigating police.

It is also clear that judges in domestic and European courts have a view of the ‘public interest’ that does not coincide with the needs of modern democracy and freedom of expression.

Journalists need to engage counter-espionage techniques to protect whistle-blowers and sources.

Journalists will also need to avoid leaving any traces or disclosures on their digital work systems that could eventually put in jeopardy the brave and courageous people talking to them to expose injustice, crime, wrongdoing, hypocrisy and abuse of power.

In short, the lesson being learned here by professional journalists is that they are very much on their own and the last line of protection for their sources.