R v ABC and Others
| Jurisdiction | England & Wales |
| Judge | Lord Thomas of Cwmgiedd, CJ |
| Judgment Date | 26 March 2015 |
| Neutral Citation | [2015] EWCA Crim 539 |
| Docket Number | Case No: 2014/05518/C4, 2014/05791/C4, 2014/05616/C4 & 2015/00900/C3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 26 March 2015 |
[2015] EWCA Crim 539
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
Mr Justice Cranston
and
Mr Justice William Davis
Case No: 2014/05518/C4, 2014/05791/C4, 2014/05616/C4 & 2015/00900/C3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
His Honour Judge Wide QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Paul Mendelle QC for the Appellant ABC
Emily Culverhouse for the Appellant EFG
J Butterfield QC for the Appellant IJK
J Rees QC for the Respondent in the first case
Orlando Pownall QC and Will Hays for the Appellant Sabey
Julian Christopher QC and Stuart Biggs for the Respondent in Sabey
Hearing date: 10 March 2015
This is the judgment of the court to which each of us has contributed.
Over the past year and at present, there have been, are continuing and will be a number of trials where public officials (policemen, prison officers, soldiers and others) are being tried for the ancient common law offence of misconduct in public office on the basis that they passed information obtained in the course of their duties to the media in return for payment. Those in the media who dealt with them have been, are being or will be tried for aiding and abetting such misconduct and in some cases conspiracy.
There are before the court applications for leave to appeal in two such trials which have been tried at the Central Criminal Court before HH Judge Wide QC and a jury.
The evidence in R v ABC, EFG, IJK
This case concerns a prison officer (ABC), his friend (EFG) and a former journalist at the News of the World (IJK).
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ABC, EFG and IJK were tried, together with another journalist, at the Central Criminal Court before HH Judge Wide QC and a jury. All three were convicted on 5 November 2014 but the other journalist acquitted.
On 11 December 2014 ABC was sentenced to 42 months imprisonment, EFG to 30 weeks imprisonment and IJK to six months imprisonment, suspended for 12 months with 150 hour unpaid work requirement and a three month electronically monitored curfew requirement. Their application for leave to appeal against conviction has been referred to the Full Court by the Registrar. We grant leave.
The evidence in R v Sabey and Brunt
As is also well-known, HRH Prince Harry was an officer in the Blues and Royals of the Household Cavalry Mounted Regiment in 2006–7. There was intense press interest in any stories about him.
Paul Brunt was a Lance Corporal in the same Regiment. He provided information about Prince Harry to The News of the World between April 2006 and November 2007 in return for payments. There was evidence that all members of the armed forces were instructed not to talk to the media without permission; this instruction was reinforced when the Royal Princes joined the regiment. Paul Brunt did not give evidence, but his account in his interview (when he chose not to be represented by a lawyer) was that he had provided the information for money. The prosecution case was that he had abused his position as a soldier and received from The News of the World and The Sun (to whom he had also provided information) a total of £16,000.
Ryan Sabey was a journalist on The News of the World, joining in 2001, becoming a staff reporter in 2003 and a Royal reporter in 2005. The newsdesk had put him in touch with Paul Brunt, telling him that there was someone with a potential story. He rang back. He was told his name was Steve and he might have a story. He kept in touch and some weeks went by before he provided information about the Prince horse riding. In the course of his dealings, Paul Brunt passed him a story with pictures of a soldier in his regiment with KKK dress and swastika symbols. He accepted that he learnt that Paul Brunt was a serving soldier and that Paul Brunt had been paid. The jury were provided with an e-mail in which Ryan Sabey asked if he could pay £1,500 in cash instead of paying it into his bank account as Paul Brunt had said his position could be jeopardised if the army ever asked to see his bank accounts. That payments was made in cash. His evidence was that many much more senior people in the paper had known he was receiving stories from a serving soldier and he had made the payments. It was the prosecution case that he encouraged Paul Brunt to provide the information, knowing that Paul Brunt was not allowed to provide it. Ryan Sabey contended that looked at overall the stories were in the public interest.
Paul Brunt and Ryan Sabey were charged with misconduct in public office, Ryan Sabey being charged with aiding and abetting Brunt.
They were tried at the Central Criminal Court also before HH Judge Wide QC and a jury on 19 February 2015; both were convicted. Sabey seeks leave to appeal on a single ground — the direction of the judge in respect of aiding and abetting. We grant leave. At the time of the hearing, the time for Paul Brunt to seek leave to appeal had not expired.
The issues.
Four issues arose on the first appeal. The second appeal involved the first and second issues only:
i) Was the judge's direction in respect of the threshold required for misconduct in public office correct?
ii) Was the judge's direction in respect of the mens rea of EFG/Ryan Sabey as aiders and abettors correct?
iii) What was the mens rea required to convict IJK in relation to the count of conspiracy?
iv) Did the judge's response to a jury note in the first case amount to a material irregularity affecting the safety of the conviction?
(1) Was the judge's direction in respect of the threshold required for misconduct in public office correct?
(a) The elements of the offence
Misconduct in public office is, as we have said, an ancient common law offence; it can be traced back to the thirteenth century, though the development of the present offence only began in 1783 in the judgment of Lord Mansfield CJ in R v Bembridge (1783) 3 Doug 327. The most recent formulation of the elements of the offence was set out in the judgment of this court (Pill LJ, Hughes and Aikens JJ) in Attorney General's Reference (No. 3 of 2003) [2004] 2 Cr App R 23, [2005] QB 73. After the acquittal of four police officers in a trial involving a death in custody, the Attorney General sought the opinion of the court on the question: "What are the ingredients of the common law offence of misconduct in public office?" The Court after an extensive review of the authorities answered the question at paragraph 61 by stating it comprised four elements:
i) A public officer acting as such
ii) wilfully neglects to perform his duty and/or wilfully misconducts himself
iii) to such a degree as to amount to an abuse of the public's trust in the office holder
iv) without reasonable excuse or justification.
The element in issue on the applications before us was the third element — the threshold test for the misconduct to be sufficiently serious to amount to an abuse of the public's trust in the office holder. In the court's examination of the authorities on this element it relied in particular on the decisions in R v Dytham (1979) 69 Crim App R 722 (Lord Widgery CJ, Shaw LJ and McNeill J) and Shum Kwok Sher [2002] 5 HKFAR 381 (Final Court of Appeal, Hong Kong, where the leading judgment was given by Sir Anthony Mason). Its conclusion in respect of the third element was expressed at paragraphs 56–8:
"56. … There must be a serious departure from proper standards before the criminal offence is committed; and a departure not merely negligent but amounting to an affront to the standing of the public office held. The threshold is a high one requiring conduct so far below acceptable standards as to amount to an abuse of the public's trust in the office holder. A mistake, even a serious one, will not suffice. The motive with which a public officer acts may be relevant to the decision whether the public's trust is abused by the conduct
57 … the element of culpability must be of such a degree that the misconduct impugned is calculated to injure the public interest so as to call for condemnation and punishment
58 … The conduct cannot be considered in a vacuum: the consequences likely to flow from it, viewed subjectively as in R v G will often influence the decision as to whether the conduct amounted to an abuse of the public's trust in the officer … There will be some conduct which possess the criminal quality even if serious consequences are unlikely, but it is always necessary to assess the conduct in the circumstances in which it occurs." (emphasis added)
In the light of the modern restatement of the law it is not necessary to refer to earlier cases as it was not suggested before us that the formulation in AG Reference No 3 of 2003 was in any way inaccurate. What was in issue was whether the way in which the judge set out this element of the offence accorded with the law as so formulated. It is, as was submitted to us, therefore helpful briefly to refer to that issue as raised in Dytham and Shum Kwok Sher.
In Dytham a police officer was charged with the offence in circumstances in which he had witnessed a very serious attack on an individual who died, but had failed to intervene; this was not an allegation of nonfeasance, but of deliberate failure and wilful neglect. The judge ruled that the offence was one known to the law and the officer was convicted. On appeal, the court said:
This involves an element of culpability which is not restricted to corruption or dishonesty but which must be of such...
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