What price freedom of speech?

Democracy is undermined if we silence whistleblowing sources in the public sector, argues Lucie Wibberley, who reports on the key issues arising from the trial of prison officer Robert Norman

Robert Norman, a journalistic source and prison officer, was jailed in 2015 for providing truthful accounts of the difficulties and dangers at HMP Belmarsh to journalist Stephen Moyes, in return for payment by the Daily Mirror and News of the World.

For 23 years Mr Norman worked as a prison officer at HMP Belmarsh, was an active member of the Prison Officers Association and had never been on the wrong side of the law. Then Operation Elveden came knocking. Elveden led to the prosecution of 34 public officials, all journalistic sources, all convicted, after News International (now News UK) and Trinity Mirror decided to share details of confidential payments made to anonymous sources with the Metropolitan Police, who were actively considering corporate prosecutions at that time. If the papers had not turned over the sources the police could not have found them. The Police and Criminal Evidence Act 1984 (PACE) contains stringent protections for journalistic sources. But after the sources were turned over, the corporate prosecutions never came. The 33 journalists prosecuted, including the journalist in Mr Norman’s case, all walked free and everyone forgot about the sources the law was designed to protect.

Following a dawn raid and lengthy criminal proceedings, Mr Norman was jailed on 2 June 2015 for 20 months. He had received payment of £10,684, primarily by the Daily Mirror but also the News of the World, for passing information to Mr Moyes between 30 April 2006 and 1 May 2011. The information he provided did not breach the Official Secrets Act. Each story was checked with the Ministry of Justice (MOJ), which often provided its own comment before it went to press. The information included prison’s use of funds and safety: staffing cuts, poor conditions for prisoners, costs associated with notorious relationships between staff and prisoners, radicalisation of prisoners, but, above all, the slow and steady demise, at times life threatening, of the prison system. The Daily Mirror advertised for stories in return for payment at that time. Mr Norman was prosecuted on the basis that by taking money for telling the truth, he had ‘misconducted himself in public office’, a common law offence that traces back to the 13th century and which the Law Commission is reviewing, after its condemnation by the Court of Appeal, legal academics and the Commission itself, as no longer fit for purpose.

Taking the fight to the ECtHR

Marking the launch of his appeal to the European Court of Human Rights, Mr Norman spoke at a seminar held by Garden Court Chambers on how the case undermines the historic protection of journalists’ sources in Britain: ‘My contact with the press ensured that the dangers we faced as prison officers became known to the public. This should not be happening, and should never happen to anyone again for telling the truth. Every warning I made is coming true about the prison service. It is falling apart. It is imploding.’

That sentiment was echoed by Mr Moyes, the journalist to whom Mr Norman provided information: ‘My trial would have heard me argue that each and every one of Robert Norman’s stories were in the public interest. The Crown said some of these stories ‘demonised’ some notorious criminals. But did anyone think about the families of the victims of these criminals, and what was in their public interest?’

Tim Crook, Professor in Media and Communication at Goldsmiths, University of London and Chair of the Chartered Institute of Journalists’ Professional Practices Board, also spoke at the seminar. He said there is a threat to public safety if public officials do not feel protected to come forward as whistleblowers: ‘The most important defence in a democracy is for journalists to ask unpopular questions, and lawyers to defend unpopular causes. Would anybody seriously argue against a source working in public safety being paid £10,000 by a media organisation if their information had been able to prevent the Grenfell Tower disaster that claimed 71 lives? The custom and practice of rewarding and providing financial support to journalistic sources is common and widely known. Charles Dickens paid the Metropolitan police when he edited papers in the 19th century. The Times paid its sources for the Thalidomide scandal.’

Keir Monteith, leading counsel for Mr Norman in the Crown Court and Court of Appeal, said the main implication of Robert’s case was the ‘chilling effect’ on whistleblowing in the public interest. ‘Not so long ago police had to go to court to ask for the disclosure of journalists’ source details. When police made an application for discovery the court upheld the source’s right to remain anonymous… that all changed with Operation Elveden.’ He said the precedent set means ‘media businesses deciding what sources to be turned over to the police’, and police bypassing the courts by ‘alleging serious criminal acts by sources... the case of Mr Norman gives the police the green light to make search requests and provides no source protection if the newspaper rolls over to the state’s demands.’

Henry Blaxland QC said: ‘This case raises a point that has not previously been considered in the European jurisprudence, the confidentiality rights of the source himself. The deal with the newspapers was done in order to avoid corporate prosecution, and in doing so they breached a fundamental journalistic principle. Before this case everyone could have confidence in journalistic confidence. But this case has subtly undermined freedom of speech.’

Press Gazette editor Dominic Ponsford agreed: ‘In 1996 Bill Goodwin (Goodwin v The UK 17488/90 [1996] ECHR 16 (27 March 1996)) went all the way to the European Court to protect a source. But in the wake of the hacking scandal 34 sources were turned over and 67 journalists were arrested and/or charged. In those periods, the UK competed with Eritrea and Iran as one of the worst places in the world for arresting journalists. Politicians really do not get the importance of sources to democracy. The Mid Staffordshire NHS scandal, the sex grooming gangs, MPs’ expenses – all these stories came from public sector whistleblowers. We are all better off when sources can speak in confidence and with confidence to journalists.’

So how to defend a journalistic source in a case like this? That task fell to Greg Powell, Mr Norman’s solicitor, who commented: ‘All trials involve competing narratives. The difficulty in this type of case is that juries may see organisational privacy through the prism of personal privacy and conflate breach of confidentiality (betrayal) with revealing an organisation’s secrets. So it is important to find and establish the emotional content of the wrongdoing and its harm to found the just cause of whistle blowing.’

Powerful words. So why did Mr Norman’s defence fail at trial?

Words unspoken

The hallmark of the last two decades has been political consensus. That is now changing, but the vacuum created by the absence of meaningful political opposition caused a shift in the balance of political power which hinges on free speech, law and order and the ballot box. If politicians cannot be relied on to hold each other to account, the press step in to fill the void: good journalism speaks truth to power.

The Leveson Inquiry was a watershed, out of which grew Elveden. By the time Mr Moyes was sent for trial, the public had flexed their muscle, and the prosecution of journalists in Britain had ceased. But the political context, of a government intent on dismantling our public services, left public servants politically vulnerable. Whether it be underfunding or a campaign of purposeful misinformation(something we legal aid lawyers know all about) the calculated use of language as a weapon used by the government to attack public sector workers has been the hall mark of this political era. The notion of the ‘corrupt public official’ , serving ‘two pay masters’, the press and the state, took flight at the trial. That the truth had been outed, revealing serious failures throughout HMP Belmarsh, was lost in pursuit of a conviction.

As the trial judge tacitly acknowledged when summing up Mr Norman’s case, we all wear many hats. Union representative, public official, journalistic source, such were the many identities of Robert Norman, and some offered a route, in the legal directions that followed, to acquittal. But when the state will not acknowledge the rights of a journalistic source in law, and the political establishment has denigrated union members and public officials for many years the odds are stacked against the man in the dock whichever hat he wears. The bottom line is that Mr Norman’s anonymity should never have been waived by the newspapers in the first place, and that waiver should not have been condoned by the courts.

Parable for our times?

Some regulation and censor of the press was needed. But has it now become an excuse for silencing necessary political debate? The stories that the state seeks to control, through prosecutions of this type, are not those of the private sector; corporations who misconduct themselves, evade their tax, or fail in their duty, those ‘crimes’ are not within the scope of ‘misconduct in public office’. It is public sector workers who feel the strong arm of the law: a private employee would be sacked not prosecuted.

If we truly value a free press, that press must be truly free to do its job. When responsible journalists, acting in accordance with their professional ethics, judge that the payment of an anonymous source is justified by the public interest of the story, let us pause and draw breath before we criminalise them, or their sources.

‘Source anonymity is not a standalone right, it is a legal mechanism to protect the right of the public to a free press.’ That proposition, urged upon the Court of Appeal, never found its way into the judgment of R v Norman. As it is, Trinity Mirror and News International’s conduct in revealing their sources and the subsequent sanction by the courts of criminal prosecutions based on the betrayal of those sources has undermined ‘the cornerstone’ of freedom of the press. Hopefully the ECtHR will put it back in place.

Contributor Lucie Wibberley, Garden Court Chambers. The Robert Norman campaign: www.crowdfunder.co.uk/justice-for-robert-norman

Author details: 
Lucie Wibberley

Lucie is a member of Garden Court Chambers, practising exclusively in criminal defence.