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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Chapman & Ors, R. v [2015] EWCA Crim 539 (26 March 2015) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2015/539.html Cite as: [2015] WLR(D) 146, [2015] 1 QB 883, [2015] QB 883, [2015] Crim LR 633, [2015] 2 Cr App R 10, [2015] 3 WLR 726, [2015] EWCA Crim 539 |
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ON APPEAL FROM THE CENTRAL CRIMINAL COURT
His Honour Judge Wide QC
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE CRANSTON
and
MR JUSTICE WILLIAM DAVIS
____________________
Regina |
Respondent |
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- and - |
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Scott Derek Chapman Lynn Gaffney Lucy Rebecca Panton |
Applicants |
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And |
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Regina |
Respondent |
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- and - |
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Ryan Sabey |
Applicants |
____________________
J Rees QC for the Respondent in Chapman and others 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
____________________
Crown Copyright ©
Lord Thomas of Cwmgiedd, CJ:
This is the judgment of the court to which each of us has contributed.
The evidence in R v Chapman, Gaffney and Panton
The evidence in R v Sabey and Brunt
The issues.
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 Lynn Gaffney/ Ryan Sabey as aiders and abettors correct?
iii) What was the mens rea required to convict Lucy Panton in relation to the count of conspiracy?
iv) Did the judge's response to a jury note in R v Chapman 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
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.
"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)
This involves an element of culpability which is not restricted to corruption or dishonesty but which must be of such a degree that the misconduct is calculated to injure the public interest so as to call for condemnation and punishment. Whether such a situation is revealed by the evidence is a matter that a jury has to decide. It puts no heavier burden upon them than when in more familiar contexts they are called upon to decide whether driving is dangerous or a publication is obscene or a place of public resort is a disorderly house. (emphasis added)
Read in context, the words suggest that his Lordship was endeavouring to convey the idea that the conduct complained of must be injurious to the public interest and of a sufficiently serious nature to warrant conviction and punishment. The linkage his Lordship makes with the idea of culpability reinforces this view of his lordship's purpose. In this respect, it is to be noted that Lord Widgery employs the concept of culpability to embrace two different matters, namely first the absence of reasonable excuse and justification and secondly that the conduct complained of may not involve corruption or dishonesty but must be of a sufficiently serious nature.
The second point is that there was no clear previous authority for the proposition that, in any category of case of misconduct in public office the prosecution must prove to the satisfaction of a jury, as elements of the offence, that the conduct of the defendant was calculated to injure the public interest so as to call for condemnation and punishment" (emphasis added)
(b) The judge's direction on the threshold test for the misconduct
"Are you sure that Mr Chapman's misconduct was so serious as to amount to an abuse of the public's trust in him as the holder of public office and that Mr Chapman has no reasonable excuse or justification for selling the stories."
This direction set out together and in a single sentence the third and fourth elements identified in Attorney General's Reference No3 of 2003. He then went on to amplify that by a further direction which he recorded in his route to verdict in a footnote (footnote 3) which read:
"There must have been a serious, blameworthy departure from proper standards amounting to an affront to the standing of the public office held. Have regard to all the circumstances as you find them to have been including (what follows is not exhaustive) the responsibilities entrusted to Mr Chapman as an office holder, the importance to the public of his responsibilities, the nature and extent of his departure from those responsibilities and his motivation for doing so (for example, to try to right a perceived wrong/making money), the nature of the information sold by him, his perception of the potential and actual consequences of his misconduct and how that misconduct was viewed by him and others. Consider whether the information he provided was information which the public really ought to have known but was being kept from them and what, if any alternative means of addressing any wrong reasonably perceived by him was available to him. Bear in mind that for the members of the public to be interested in certain facts is not necessarily the same as it being in the public interest for those facts to be published."
According to law, can the seriousness of the misconduct be determined by the nature of the misconduct alone or can it/must it depend on the seriousness of the information imparted?
(b) The contentions of the applicants
(c) Our approach
"What the defendant did was "wrong", in the sense that her actions were an abuse of the public's trust in her position as a police officer and what she said during the telephone call to the News of the World … substantially fell below the standards that the public are entitled to expect of police officers, particularly at a senior level. It must involve wrongdoing, therefore, that harms the public interest and is sufficiently serious to merit a criminal conviction in the context of this trial.
You represent the public in this trial and it is for you to say whether the defendant's actions were wrong and constituted an abuse of the public's trust in the sense I have just described. However, the defendant's actions clearly must have been graver than a simple and straight forward mistake or an understandable error of judgment even a serious one. Instead it must constitute an abuse of the public's trust in this senior police officer."
(2) Was the judge's direction in respect of the mens rea of Lynn Gaffney/ Ryan Sabey as aiders and abettors correct?
(a) The directions to the jury
(b) that Scott Chapman's activity amounted to wilful misconduct. The allegation in Ryan Sabey's trial was that he had assisted and encouraged Paul Brunt as the holder of a public office wilfully to misconduct himself.
"4. Are we sure that Ryan Sabey encouraged and assisted, and intended to encourage and assist, Paul Brunt in providing information/photographs to him?
If yes, go to question 5. If no, verdict: Not guilty
5. Are we sure that, when Ryan Sabey received information/photographs from Paul Brunt, he knew that Paul Brunt's actions amounted to wilful misconduct by him?
If yes, go to question 6.
If no, verdict in relation to Ryan Sabey: Not Guilty
6. Are we sure that, in the circumstances of which Ryan Sabey was aware, Paul Brunt's misconduct was, in our judgment so serious as to amount to an abuse of the public's trust in Paul Brunt as the holder of a public office and for which he, Paul Brunt, had no reasonable excuse or justification.
If yes, verdict in relation to Ryan Sabey: Guilty
If no, verdict in relation to Ryan Sabey: Not Guilty."
i) The first concerned the word "wilful". The explanatory footnote read:
Deliberate, being aware of his duty not to conduct himself in the way that he did."
ii) The second related to the word "misconduct". The explanatory footnote was as follows:
"i.e. that he breached a duty, of which he was aware, not to sell information/photographs to newspapers. The existence of that duty and his awareness of it need not derive from a specific regulation."
As we have observed, these two questions related essentially to their respective knowledge that Scott Chapman/Paul Brunt were in deliberate breach of their duties. They did not relate to the seriousness of the misconduct.
"but note you may take into account only those circumstances of which you are sure Ryan Sabey (Lynn Gaffney) was aware."
"Did Lynn Gaffney believe that Scott Chapman's conduct crossed a criminal threshold."
The jury was given the answer "No".
(b) The contentions made on behalf of Lynn Gaffney and Ryan Sabey
"Before a person can be convicted of aiding and abetting the commission of an offence, he must at least know the essential matters which constitute that offence".
The argument in this appeal was very largely directed to the issue of mens rea: what state of mind must be proved against a defendant to convict him of causing a public nuisance? The Crown contended that the correct test was that laid down by the Court of Appeal in R. v Shorrock [1994] Q.B. 279, 289, that the defendant is responsible for a nuisance which he knew, or ought to have known (because the means of knowledge were available to him), would be the consequence of what he did or omitted to do. That was a test clearly satisfied on the facts of that case, where the defendant deliberately permitted use of his field and should have known what the result would be. It is a test satisfied, I think, in all the public nuisance authorities considered above, save those based on vicarious liability (which are hard to reconcile with the modern approach to that subject in cases potentially involving the severest penalties, and may well be explained, as Mellor J. did in R v Stephens (1866) LR 1 Q.B. 702, 708–709, by the civil colour of the proceedings). I would accept this as the correct test, but it is a test to be applied to the correct facts.
(c) The mens rea required of an aider and abettor
Are we sure that, by the ordinary standards of reasonable people, what was done amounted to misconduct in a public office so serious as to amount to a breach of public trust in the office holder?
If yes, are we sure that Ryan Sabey must have realised that what he assisted and encouraged was by the ordinary standards of reasonable people misconduct in a public office so serious as to amount to a breach of public trust in the office holder?
"He need not actually know that an offence has been committed because he may not know that the facts constitute an offence and ignorance of the law is not a defence. If a person knows all the facts and is assisting another person to do certain things and it turns out that the doing of those things constitutes an offence, the person who is assisting is guilty of aiding and abetting that offence because to allow him to say "I knew all of these facts but I did not know that the offence was committed" would be to allowing him to set up ignorance of the law as a defence."
i) Lynn Gaffney had been the partner of Scott Chapman. She plainly knew what he did for employment i.e. a prison officer at HMP Woodhill. Over the course of under two years a little over £40,000 was paid into two bank accounts in her name, the payments clearly coming from various newspapers. There was documentary and other evidence to show that much of the money coming into her accounts was paid over to Scott Chapman.
ii) Ryan Sabey was a Royal reporter at the News of the World. He knew that Paul Brunt was a serving soldier. He knew that Paul Brunt's position would be compromised if it became known that he was providing information to the News of the World yet he continued to encourage him (and to pay him) to provide the stories to which we have referred. It is against that background that the jury in each case were considering the circumstances as known to Lynn Gaffney and Ryan Sabey respectively.
(d) Was any additional burden placed on Ryan Sabey to prove matters of which he was aware?
(3) What was the mens rea required to convict Lucy Panton in relation to the count of conspiracy?
"between the 5 April and 11 September 2010 she conspired together with Mr. Chapman, Ms. Gaffney and a third person to commit misconduct in public office."
(1) Subject to the following provisions of this Part of this Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either—
(a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, or
(b) would do so but for the existence of facts which render the commission of the offence or any of the offences impossible, he is guilty of conspiracy to commit the offence or offences in question.
(2) Where liability for any offence may be incurred without knowledge on the part of the person committing it of any particular fact or circumstance necessary for the commission of the offence, a person shall nevertheless not be guilty of conspiracy to commit that offence by virtue of subsection (1) above unless he and at least one other party to the agreement intend or know that that fact or circumstance shall or will exist at the time when the conduct constituting the offence is to take place."
(1) Are we sure that Ms. Panton agreed with Mr. Chapman and that Mr. Chapman provided information for payment for inclusion in a newspaper, intending that he would do so?
(2) Are we sure that Ms. Panton knew, when she did so, that Mr. Chapman was a public official?
(3) Are we sure that, when she did so, Ms. Panton knew that Mr. Chapman's selling the information to newspapers amounted to wilful misconduct by him?
(4) Are we sure that, in the circumstances of which Ms. Panton was aware, Mr. Chapman's misconduct was so serious as to amount to an abuse of the public's trust in him as the holder of public office and for which he had no reasonable excuse or justification?
"but note you may take into account only those circumstances of which you are sure Ms. Panton was aware. When considering Ms. Panton's awareness of Mr. Chapman's motivation and whether he, Mr. Chapman, had reasonable excuse or justification for selling the information, bear in mind that this question is not concerned with Ms. Panton's opinion as a journalist of whether publication of the information would be in the public interest."
(4) Did the judge's response to a jury note in R v Chapman amount to a material irregularity affecting the safety of the conviction?
"The discussions within the jury room have become aggressive and the atmosphere is horrible.
I went to speak and 2 other jurors rolled their eyes and stated 'again'. Another juror told them to stop being rude and voices were raised.
Additionally a particular juror keeps insisting we go with a majority vote, despite being told otherwise repeatedly by several jurors and our foreman.
One juror even got out a magazine and proceeded to read this whilst others were stating their points.
Please be aware all of above is only the activity of 2 jurors however I strongly feel it is affecting the ability of us all to voice our opinions without fear of reprisal from them."
"Thank you ladies and gentlemen I am going to ask you in a moment when the jury bailiff has been sworn to retire and continue to deliberate. There is something I should add. When I asked you to retire to consider your verdicts I directed that you should elect a foreman to chair your discussions and act as your spokesman or spokeswoman when you come back to court. Perhaps I should have added this in relation to the word discussions. Discussion is not of course the same as argument. It is important to keep in mind that you are a jury of 12 and the collective collaborative nature of your decision-making is important. This involves paying collective attention to the consideration of the views of each individual member. It is also important for your discussion to be focused and for them to keep them moving forward in relation to the issues you have to decide. Finally this I also said to you just before you retired that your verdicts must each be unanimous and that remains the case unless I give your further direction."
"I am being that.
I am wasting oxygen!"
Conclusion