Journalist cleared, why was the conviction "unsafe"?

Operation Elveden has been described as an "unmitigated disaster" by journalists after the Court of Appeal quashed the conviction of the only journalist to be found guilty following the £20million enquiry.  

But why was the conviction deemed unsafe by the Court of Appeal? I have taken the opportunity to write a quick summary of the findings for those who might be interested.

The Background

A police officer sold 43 pieces of information to the newspaper that employed Mr France, 38 of which were used for articles. Mr France wrote articles based on this information and he followed the internal process at the Sun to ensure that the police officer was paid for this information. The newspaper subsequently paid the police officer more than £22,000 for the information. 

The police officer was charged with misconduct in public office and he pleaded guilty to this offence and in June 2014 he was sentenced to 2 years in prison.  

In 2015 Mr France was convicted after trial of aiding and abetting the police officer and he was sentenced to 18 months in prison, which was suspended for 2 years.   

During the trial the Crown accepted that the mere fact that a journalist bought information from a public official would not in itself be sufficient to find him guilty of aiding and abetting misconduct in the public office.  The elements of the offence of misconduct in a public office are:

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a public officer acting as such 

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willfully neglects to perform his duty and/or willfully misconducts himself

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to such a degree as to amount to an abuse of public's trust in the office holder

·

without reasonable excuse or justification

The Crown needed to prove the necessary standard of seriousness by reference to the harm caused to the public interest (the third limb of the test).  During a trial a jury must be given a direction as to the level of seriousness required (R v Chapman [2015] EWCA Crim 539). 

The Crown argued that the information was mostly trivial and that there could be no public interest in buying and publishing it. Mr Frances did not concede that the officer's conduct was so serious as to constitute an abuse of the public's trust. He argued that publication of the information was in the public interest.  As is the norm, at the end of the trial, before the jury were sent away to deliberate on the verdict, the judge gave oral and written directions.

The Appeal

Mr France's legal team (Richard Kovalevsky QC and James Hodivala) argued that in giving his directions the Judge failed to adequately direct the jury on the elements of the offence of misconduct in a public office in view of Chapman.

The Court of Appeal found that:

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The judge directed the jury in accordance with Chapman to the extent that he set out the elements of the offence the Crown had to prove. 

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He explained to the jury that they should approach their decision of whether the conduct was serious enough that it amounted to an abuse of public trust in the office holder. 

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He even discussed his legal directions with trial counsel before summing up in front of the jury.  Trial counsel took no issues with this.  

Because of the case of Chapman, the judge had to provide the jury with as much assistance as possible by putting the known facts into context.  It seems that he repeatedly stressed that the level of misconduct had to be so serious as to be characterised as criminal conduct. 

However, the Court of Appeal found that the judge did not give the jury any assistance on how to assess seriousness and harm. He could have, for example, provided the jury with a list of aspects to think about. 

The passing of information held in confidence is not necessarily sufficiently serious as to amount to an abuse of the public trust in the official.  But the Judge did not elaborate on what he meant by confidential.

The Court of Appeal also found that the summing up needed more detailed instruction regarding the factors relevant to the question of the public interest to help the jury to consider carefully the seriousness of the breach. The jury should have been directed to consider whether the information was so trivial or inconsequential that the public interest could not, in the particular circumstances of the case, be harmed. 

In summary the Court of Appeal said that in isolation any one of the above might not have resulted in the conviction being unsafe. However taken together and reading the summing up as a whole, the jury were not given adequate legal directions tailored to the circumstances of the case.  As a result the Court of Appeal found that the conviction was unsafe and it was subsequently quashed.