The Article 10 rights of a journalistic source under the European Convention on Human Rights ("ECHR") are likely not engaged where a media corporation discloses the identity of said source to the police. Even if the source's Article 10 rights are engaged, if the source has committed a criminal offence by disclosing information, the right can be interfered with and the media corporation is under no obligation to protect the source's identity.
This case was an appeal by Robert Norman (the "Appellant"), a former prison officer, against his conviction for misconduct in a public office. The criminal conviction related to the corrupt relationship between the Appellant and the tabloid journalist Stephen Moyes, who was working during the period of this relationship for the Daily Mirror and subsequently News of the World. Both newspapers had paid the Appellant sums totalling around £10,000 in return for information supplied to Mr Moyes about the prison, which formed the subject matter of numerous published articles. The information included stories about named high-profile prisoners and bad practices within the prison.
Before the Court of Appeal, the Appellant argued that the original criminal proceedings against him were an abuse of process. This was on the ground that the police had applied improper pressure to the newspapers in order to obtain from them the Appellant's identity, and the material which was used to bring the proceedings against him. The Appellant argued further that this was a violation of Article 10 of the ECHR.
Sitting in the Court of Appeal, Lord Thomas CJ, Popplewell J and Goss J found that the newspapers had voluntarily agreed to assist the police with their investigation, and therefore that no improper pressure was used by the police to obtain the Appellant's identity and the materials used to bring proceedings against him.
The Court also found that the Appellant's Article 10 rights had not been interfered with:
- The Court found that it was doubtful whether Article 10 rights were engaged at all in the case of a source whose identity is voluntarily disclosed by a newspaper. Although Article 10 protects the right of journalists to withhold journalistic material from the police, the Court found that under European law, journalists are under no obligation to do so unless such an obligation is imposed by national legislation. There are no UK laws imposing such an obligation on journalists;
- Even if the Article 10(1) right was engaged, it is a qualified right under Article 10(2) and thus would not protect the Appellant in these circumstances. This is because the Appellant had committed a criminal offence (misconduct in a public office). This meant that the revelation of his wrongdoing was necessary and proportionate for the important public interest of prosecuting a crime and the right could be interfered with on this basis.
The Court acknowledged that different considerations may arise in the case of a 'genuine whistleblower' seeking to act in the public interest "where the only wrongdoing might lie in a breach of obligations to the employer rather than the circumstances of the communication to the journalist." However, given that some of the information disclosed by the Appellant to Stephen Moyes covered stories such as the consequences of prison cuts in conjunction with increased prisoner numbers, suicides within the prison and the misconduct of prison officers, the distinction between a 'genuine whistleblower' making a disclosure in the public interest and an individual whose disclosure constitutes a criminal offence may be difficult to make in practice. Media corporations will need to find effective ways of making this distinction in order to ensure that any co-operation with the police does not constitute a breach of a source's Article 10 rights.
The full judgment is available here.