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The case of Anthony France: how does the media interact with the law?

The media can often have an uneasy relationship with the law, particularly given that a number of publications will employ unusual tactics in order to remain ‘ahead of the game’ in what is known to be an incredibly competitive industry. The recent case of Anthony Jonathan France v R is a prime example of this, where a criminal journalist succeeded in appealing his conviction for his part in making payments to a public official in exchange for news stories.

Facts of the case

Mr France’s original conviction stemmed from an investigation – known as “Operation Eleveden” – in 2011, following the now infamous phone-hacking scandal, of payments being made by journalists to public officials. Mr France was one of a number of journalists and people in public office whose conduct had been investigated. At the time of the investigation, Mr France was a crime reporter working for The Sun newspaper which openly advertised that it would offer payments in exchange for news stories. Operation Eleveden discovered that between 2008 and 2011, a then serving police officer at Heathrow Airport known as Timothy Edwards, sold The Sun nearly forty difference pieces of information. Mr France wrote the articles that originated from this information and then submitted the requisite paperwork to The Sun to issue payment to Mr Edwards, which yielded a sum of over £20,000 being paid to Mr Edwards.

What did the Court of Appeal have to decide?

The central issue for the Court of Appeal (the CoA) was in deciding whether the trial judge had failed to provide the jury with enough detail on the elements of the misconduct in a public office offence, as had been stipulated in the earlier decision of R v Chapman and others (“Chapman”) - reported here. In Chapman, it was established that for the crime of misconduct in public office to have been committed, the following elements need to be present:

  • A public officer acting as such
  • Wilfully neglects to perform his duty and/ or wilfully misconducts himself
  • To such a degree as to amount to an abuse of the public’s trust in the office holder
  • Without reasonable excuse or justification.

The court in Chapman examined each of the constituent parts of the offence in detail, but highlighted the importance of the third element. It also directed that this was for a jury to decide, and that judges need to give juries careful direction that “…only conduct worthy of condemnation and punishment that harms the public interest is criminal conduct.” The CoA narrated a key component of the decision in Chapman in dealing with cases of the media reporting on affairs with the involvement of public officials:

“In the context of a case involving the media and the ability to report information provided in breach of trust by a public officer, the harm to the public interest is in our view the major determinant in establishing whether the conduct can amount to an abuse of the public’ interest and thus a criminal offence.”

The issue for the defence team of Mr France was that the publication of the various stories that originated from the information supplied by Mr Edwards (i) did not harm the public interest, and (ii) was in the public interest. Further, and more significantly, the trial judge was alleged to have failed to have given a full explanation to the jury as to how ‘confidential information’ was to be defined, and how it could be different from information received ‘in confidence’.

What did the CoA decide?

The CoA was satisfied that the trial judge had taken the requisite care in properly identifying the different components of the offence, but took the view that he had not gone far enough in doing so. In particular, it commented that the jury had not been given instructions on how they were to go about assessing the seriousness and harm of the offence – a list of possible factors they could consider was suggested. While the CoA acknowledged that the trial judge identified that an abuse of trust would ultimately be something which would harm the public interest, and that it is both the breach and resultant harm that had to be proven it held that:

“He failed to elaborate on what is meant by “confidential” material, in circumstances where, as we have noted, the passing of information held in confidence is not in and of itself sufficient necessarily to pass the threshold of being so serious as to amount to an abuse of public trust in the official.”

The trial judge did ask the jury to consider whether Mr France “…intentionally encouraged and/ or assisted [Mr Edwards] to supply confidential information for payment”. However the issue for the CoA was that information which was held in confidence by a public official, and passed on to someone else, was not strong enough evidence to demonstrate the seriousness threshold to amount to abuse of trust in a public official. It agreed that ‘in confidence’ and ‘confidential’ have particular meanings and are not synonymous with one another. Furthermore, the CoA was dissatisfied with the trial courts treatment of the ‘public interest’ and commented that trial judges dealing with cases such as this must “…provide the jury with as much assistance as possible by putting admitted conduct into its proper factual context” to determine the level of harm caused.

Ultimately, the CoA ruled that the directions of the trial judge were sufficiently unsatisfactory such as to render the conviction unsafe and ordered that the conviction be quashed.

What does this mean?

The case of Mr France is a very complex one, and demonstrates the difficulties involved in dealing with criminal allegations against journalists. It also demonstrates the need for expertise in what the courts have admitted is an extremely complex area of the law, so to ensure that the media are not unduly restricted and that their role in communicating important information in the public interest is preserved.

As a criminal barrister, I often work with journalists who are operate on a daily basis with the fear of being subject to criminal proceedings for simply doing their job. It is vital that individuals operating in the media work with highly specialised legal advisors where allegations of harm to the public interest are raised. I have a great deal of experience of this area, working with clients to defend against criminal allegations and building a vigorous defence to protect their interests. If you would like to speak to me about a similar concern, contact me today. 

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