European Court of Human Rights
FOURTH SECTION
CASE OF NORMAN v. THE UNITED KINGDOM
(Application no. 41387/17)
JUDGMENT
Art 10 • Freedom to impart
information • Justified prosecution
and conviction of prison officer for providing information
about prison to journalist in exchange for money
• Strong public interest in prosecution
for maintenance of integrity
and efficacy of and public confidence in the prison service • No public interest
in majority of disclosed
information and no claim to be acting
as a whistle-blower •
Disclosure of applicant’s name by newspaper owner not attributable
to respondent State, in the absence
of any compulsion by police
Art 7 • Nullum
crimen sine lege • Prosecution and conviction for offence of misconduct in public office sufficiently
foreseeable
STRASBOURG
6 July 2021
This judgment will become final
in the circumstances set out in Article
44 § 2 of the Convention. It may
be subject to editorial revision.
In the case of Norman v. the
United Kingdom,
The European
Court of Human Rights (Fourth
Section), sitting as a Chamber composed
of:
Yonko Grozev, President,
Tim Eicke,
Faris Vehabović,
Iulia Antoanella Motoc,
Armen Harutyunyan,
Gabriele Kucsko-Stadlmayer,
Ana Maria Guerra Martins, judges,
and Ilse Freiwirth, Deputy Section Registrar,
Having regard to:
the application
against the United Kingdom of Great Britain and
Northern Ireland lodged
with the Court under Article 34 of the Convention for
the Protection of Human Rights
and Fundamental Freedoms
(“the Convention”) by a British national, Mr Robert
Norman (“the applicant”), on 1 June
2017;
the decision
to give notice to the
United Kingdom Government (“the Government”) of the complaints
concerning Articles 7 and
10 of the Convention;
the parties’ observations;
Having deliberated in private
on 15 June 2021,
Delivers the following judgment, which was adopted
on that date:
INTRODUCTION
1. Over a number
of years, the applicant provided to a journalist, in exchange for money, information about
a prison where he worked as a prison
officer. The newspaper subsequently
disclosed his name to the police in the context of an investigation into allegations of inappropriate payments by newspapers to
public officials. The applicant
was prosecuted and convicted of misconduct in public
office. He complains of a violation
of Articles 7 and 10 of the Convention.
THE FACTS
2. The applicant
was born in 1960 and lives in Dawlish. He was represented by Mr Henry Blaxland QC, a barrister
practising in London.
3. The United Kingdom
Government (“the Government”) were represented by their Agent, Mr James Gaughan, of the Foreign
and Commonwealth Office.
4. The applicant
was a prison officer at Her
Majesty’s Prison Belmarsh, a high security prison whose inmates included
a number of notorious criminals.
5. Between
May 2006 and April 2011, the applicant
passed information about
the prison to a tabloid journalist
on around forty occasions in exchange for money totalling 10,684 pounds sterling (GBP). The information supplied formed the basis of numerous published articles in the Daily Mirror and News of the
World newspapers. The stories for which
his information was the
source ranged from general stories in which individuals were not identified
to specific or personal stories in which prisoners or staff were named or identifiable.
6. In July
2011, as a result of revelations, widespread public concern arose about
the conduct of some journalists
working for certain newspapers in the United Kingdom,
in particular the means by which they obtained
stories. These included unlawful telephone hacking and corruption
of public officials. The revelations
led to proceedings before two Parliamentary Select
Committees and the institution of a public inquiry
(“the Leveson Inquiry”) which considered the culture, practices and ethics of the press.
7. Meanwhile,
the police launched a criminal investigation into allegations of inappropriate
payments by some journalists to public officials (“Operation Elveden”).
8. In July 2012
the police requested from
the owner of the Daily
Mirror, Mirror Group Newspapers (“MGN”), details
of public officials who had been paid
for information. A Memorandum of Understanding (“MoU”) was agreed
between the police and MGN
to provide a “framework for the voluntary
provision” by MGN of material
relevant to Operation Elveden.
9. Under clause
8.1 of the MoU, MGN was entitled to withhold, or provide a redacted or edited version of, any relevant documentation
to the extent that it amounted to “Excluded Material”. “Excluded Material” included journalistic material held in confidence which in MGN’s judgment it would
not be in the public interest
to disclose, having regard to Crown Prosecution
Service (“CPS”) Guidance, the Code for Crown Prosecutors, the Code of Practice
of the Press Complaints Commission and in particular to the public interest
served by the freedom of expression balanced against the extent of any apparent wrongdoing
and harm.
10. In early
2013 MGN undertook a search
of its records in order to identify and, in line
with the MoU, disclose
information sought by the police.
The disclosure process was overseen by counsel instructed by MGN. The applicant was identified
as a recipient of payments
and MGN subsequently disclosed
his name to the police.
- THE CRIMINAL
PROCEEDINGS
- The applicant’s arrest
11. In June
2013 the applicant was arrested and charged with misconduct in public office on the ground that he had passed
information obtained in the course
of his duties to the media in return
for payment. Misconduct in public office is a common law offence which is
made out where 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 (see paragraphs 32-34 below).
12. In March 2015 the Court of Appeal handed down judgment in a case concerning a prison officer who had
been convicted of misconduct in public office for having
passed information to the media (R v. Chapman
and others, see
paragraphs 36-37 below).
In its judgment, the court considered what was required to satisfy the third element of the offence, namely conduct “to such a degree as to amount to an abuse of the public’s trust” (“the seriousness
test”). In light of the judgment, the CPS conducted a review of relevant pending cases. It decided that
it remained in the public interest to proceed with the charges against the applicant.
- The trial
13. The applicant’s
trial before a jury began in May 2015. He did not dispute that he had provided
the information to the journalist and had received payment for it. His defence was that his
actions were justified and that his conduct
was insufficiently serious to satisfy the seriousness test.
- Application to
stay the indictment
14. At the outset
of the trial, the applicant made an application to the judge to stay
the indictment for abuse of
process on the basis that his prosecution
breached Article 10 of the
Convention. He argued that
the disclosure of his name had not been
voluntary since at the relevant time MGN had been a suspect
in a corporate prosecution investigation.
He further argued that the MoU should
have included safeguards for journalistic
sources to prevent disclosure
of his name, including independent scrutiny of the decision to disclose and the opportunity to make representations
during the disclosure process. He pointed out that the MoU made no mention of Article 10 of the
Convention. Referring to case-law
of this Court, he submitted
that the police had taken receipt
of the material without a lawful, Article 10-compliant process.
15. The prosecution
contested the application. They argued that
the rights accorded by Article 10 were not absolute and were subject to limitation to protect the reputation or rights of others and to prevent the disclosure of information received
in confidence. The provision of information on the applicant’s identity had been justified
under Article 10 § 2 as it had
disclosed prima facie evidence against him in relation to his longstanding and repeated disclosure of confidential
information to a journalist in flagrant
breach of his terms of employment. Although the MoU did not specifically
refer to Article 10, it had its
“essence” in mind, given
the terms in which it was drafted
and the manner in which it was reasonable
to assume that it had been given
effect. Journalistic privilege did not
preclude newspapers from voluntarily disclosing the identity of a
source.
16. On 19 May
2015 the judge refused the application. He acknowledged that there was
a reasonable inference that MGN had assisted
the police with its investigation in the “hope” that its actions would avoid prosecutions
at a higher level. However, he concluded that the applicant had failed
to establish any breach of Article 10. He accepted the prosecution submission that the MoU had been
drafted with the “essence”
of Article 10 in mind and that
disclosure had been justified under Article 10 § 2. He further noted that journalistic
privilege did not preclude a newspaper from voluntarily
disclosing the identity of
a source.
- Submission of
no case to answer
17. At the close
of the prosecution case, the applicant
sought a ruling from the judge
that there was no case to answer on the basis that the four essential elements of the offence had not been
made out (see paragraph 33 below).
18. On 26 May
2015 the judge refused the application. He found that in respect of each element of the offence there was
evidence on which it would be open to a jury to be sure that this element was
made out. He considered that
the fact that the applicant had chosen
to have cheques for the first twenty‑seven
transactions made out to his
son (who transferred the equivalent amount into the applicant’s bank
account) was capable of
giving rise to the inference that
the applicant “knew very well that
what he was doing was wrong
and in breach of duty”. As
to whether the applicant had a reasonable excuse or justification for his action, the judge found it open to the jury to conclude that he did not, having
regard to the number of
stories involved, the length
of time over which information was
divulged, the amount of
money involved, and the fact
that the applicant had not taken
up any matters which featured in the stories through official channels, despite his claims to have
been concerned for reasons of public interest. In respect of the seriousness test,
the judge took the view that a jury
could conclude that the necessary harm to the public interest had been
established by the very fact of a prison officer having been in a longstanding relationship with a journalist
and, in breach of his duty,
repeatedly divulging
information about the prison
for money.
- Conviction and sentence
19. On 1 June
2015 the applicant was convicted by the jury. The
following day he was sentenced
to twenty months’ imprisonment.
20. In his sentencing remarks, the judge accepted that the applicant had had genuine concerns about the manner in which the prison was being
run. This, he considered, had been in part a motivating factor for his actions. The judge continued:
“That said, in my judgment
that does not tell the whole story.
On a number of
occasions, as you yourself conceded
in evidence, you disclosed information when the
public interest had nothing at all
to do with what you were imparting ...”
21. The judge considered that the applicant had been
motivated by money and by an intense dislike of the prison governor. He further pointed out that the applicant had been
a trade union representative and could
have used official channels to disseminate
information had public interest
been his sole concern. As to the harm caused by his actions, the judge referred to the suspicion that had fallen
on other innocent members of staff since the identity of the person leaking stories was unknown. He also highlighted the damage to prisoners who had
been demonised in the
tabloid stories as well as the resulting potential for enmity from other inmates and inmates’ general mistrust of
prison staff because of the
leaks. Finally, the fact that for a lengthy period of time and on numerous occasions the applicant had acted in flagrant
breach of rules which, the judge was satisfied,
he knew very well prohibited such contacts with the press represented a very serious breach of trust. In sentencing him to a term of imprisonment, the judge emphasised the scope and
scale of the offending in the case.
- The Court of
Appeal
22. The applicant
sought leave to appeal against conviction and sentence. His application for leave to appeal against sentence was refused
on 22 September 2015. On 30 September
2015 he was granted leave to appeal his conviction.
23. In his written argument prior to the appeal hearing, he advanced
two grounds of appeal. First, he argued
that the trial judge had erred in failing
to stay the prosecution as
an abuse of process (see paragraphs 14-16 above). Disclosure of his name as a journalistic source had breached Article
10 because MGN had been acting under pressure and because the disclosure process had not
been “prescribed by law” as it
had lacked the necessary safeguards. Second, he argued that the judge should have
acceded to his submission of no case to answer (see paragraphs 17-18 above). He contended that his misconduct
did not meet
the criminal threshold but amounted rather
to a disciplinary offence
and the appropriate Article 10‑compliant sanction would therefore have been disciplinary proceedings, not a criminal prosecution. He added that the criminal prosecution of a disciplinary offence offended the principle of legal certainty and thus violated Article
7 of the Convention.
24. On 20 October
2016 the Court of Appeal dismissed the appeal. In its judgment, it
listed the stories for which
the applicant’s information was
said to have been the source, which it noted ranged
from general stories in which individuals
generally remained anonymous to specific or personal
stories in which prisoners
or staff were named or identifiable.
25. The court noted
at the outset that all of the case-law of the European Court of
Human Rights cited in argument was concerned
with the compulsory disclosure
of journalistic sources or materials.
It found no evidential basis for the applicant’s suggestion that the police had exerted any
“improper pressure” on MGN to disclose
information. In particular, the comments
of the trial judge regarding
the newspapers’ hope that
their assistance would avoid prosecution
at a higher level (see paragraph 16 above) merely recorded
the motivation of the newspapers; it
did not amount
to a finding that the police had sought
to impose any pressure on them.
Indeed, the court said, all the evidence suggested the reverse. It explained:
“28. ... The police made no threat or promise,
express or implied, about
the bringing of a prosecution
against the company or companies or their top management. The police were seeking voluntary
disclosure under the terms
of the MoU, clause 8 of which made clear that MGN retained the right to invoke Article 10 grounds
for refusing disclosure.
MGN was a large organisation
with access to in-house and external legal advice. It
was inconceivable that MGN did not
give careful consideration to whether to make disclosure to the [police] in the
context of the publicity which Operation Elveden and the Leveson Inquiry were attracting.
The [police were] entitled to assume that the disclosure which was proffered was
as a result of a considered and informed decision with the benefit of full and accurate legal advice.”
26. The court concluded
that the disclosure had not been
procured by any improper pressure or coercion but had been
“truly voluntary”. There had therefore
been no misconduct by the police in receiving or acting upon the information.
27. The court further
rejected the argument that voluntary disclosure was a breach of the applicant’s Article 10 right, as a journalistic source, to have his anonymity
maintained. It considered that there was room for doubt whether the applicant’s Article 10 rights were engaged
at all in these circumstances. Referring to Council of Europe recommendations (see paragraphs 48-52 below),
it noted that while the right of journalists to withhold journalistic material was an important Article 10 right, there was
no concomitant obligation
on journalists to do so. The court also recalled that
the 2015 edition of the Editor’s
Code of Practice described
a journalist’s obligation
to protect confidential
sources of information as a “moral obligation” (see paragraph 47 below).
28. In the event, the court did not find
it necessary to decide the
point since even if such a right
existed it was not unqualified.
Assuming in the applicant’s
favour that Article 10 was engaged, the Court was satisfied that the use of the material in his prosecution in the circumstances
of his case was compatible with Article 10 § 2.
The freedom of expression which potentially fell within Article
10 was the provision of
information in return for the corrupt
acceptance of money by him as a public official over a prolonged period which amounted to the serious criminal offence of misconduct in public
office. Revelation of the applicant’s
wrongdoing was necessary and proportionate for
the important public interest
of prosecuting a crime which
existed, in this context, to maintain the integrity and efficacy of the prison service and the public’s
confidence in it.
29. The court then
turned to examine the
second ground of appeal: that the trial judge should have
acceded to his no case to answer submission. It observed that
while the challenge before
the trial court had been that the prosecution case had been insufficient
to be left to the jury in respect of all four elements of the offence (see paragraph 17 above), on appeal, the argument had been
confined to the second and third
elements (see paragraph 33 below) only. As
to the seriousness test (the third
element), the court agreed
with the findings of the trial judge
(see paragraph 18 above). It considered
that the prosecution evidence was capable
of meeting the high threshold of criminality
because of the harm to the
public interest caused by
the applicant’s conduct. In
this respect, the court referred to the extent of the applicant’s “corrupt activity”: taking payments of over GBP 10,000 for a period of some five years was conduct
that the jury had been entitled
to conclude was not justified in the public interest.
It was also
conduct that caused significant public harm because corruption
of a prison officer on this scale undermined public
confidence in the prison service. The court further referred to the impact of
the leaks from an unknown source on trust and
morale among and between prisoners and staff and
the deterrent effect on
staff and prisoners reporting incidents.
As regards the second element of the test, the applicant’s
argument was that what he had
done had been in accordance with the freedom of expression protected by Article 10 and it could not
therefore amount to a breach of duty. The court disposed of this argument on the basis that the applicant’s conduct, amounting to the serious offence of misconduct in public office, was not protected by Article 10.
30. Finally, the
court dealt briefly with
the Article 7 point (see paragraph 23 in fine above), which it
noted had not been pursued
in oral argument. It concluded that
there was no lack of certainty in the seriousness element of the offence of misconduct in public
office: it had recently been clearly
articulated and explained
in Attorney General’s
Reference (No 3 of 2003) and R v Chapman (see paragraphs 33-37 below). In the latter case, it had been
made clear that the level
of seriousness which had to be reached was defined by recognised criteria on which the jury were to be directed. The seriousness test was therefore sufficiently clear to enable a person, with appropriate
legal advice if necessary, to regulate his behaviour
and foresee whether such behaviour was capable of amounting to misconduct in public
office.
- The Supreme
Court
31. The applicant
applied for leave to appeal
to the Supreme Court, relying on Articles
7 and 10 of the Convention. On 18 January 2017 the
Court of Appeal refused to certify
a point of law of general public importance
and refused leave to
appeal.
RELEVANT LEGAL FRAMEWORK AND PRACTICE
- DOMESTIC LAW AND
PRACTICE
- Misconduct in
public office
- The elements of the offence
32. Misconduct in
public office is a common law
offence, not defined in statute. It carries a maximum sentence of life imprisonment.
33. The leading modern case defining the offence is Attorney General’s
Reference (No 3 of 2003) ([2004] EWCA Crim 868) in which
the Court of Appeal (at paragraph
61) stated that the elements of the offence were:
“... (1) a public officer acting as such ...; (2) wilfully neglects to perform his duty and/or wilfully misconducts himself ...; (3) to such
a degree as to amount to an
abuse of the public’s trust
in the office holder ...; (4) without reasonable excuse or justification ...”
34. As regards the seriousness test, the
court explained:
“56. ... 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. It
will normally be necessary to consider the likely consequences of the breach in deciding whether the conduct falls so far below the standard
of conduct to be expected
of the officer as to constitute the offence. The conduct cannot be considered in a vacuum: the consequences
likely to follow from it
... will often influence the decision as to whether the conduct amounted to an abuse of the public’s trust in
the officer. A default where
the consequences are likely
to be trivial may not possess the criminal quality required; a similar default where the damage to the public or
members of the public is likely to be great may do so ...
59. The consequences
of some conduct, such as corrupt conduct,
may be obvious; the likely consequences of other conduct of public officers will be less clear but it is impossible
to gauge the seriousness of the defaulting
conduct without considering the circumstances in which the conduct occurs and its likely consequences ...”
35. In light of Operation Elveden and the resulting criminal investigations, the Director of Public Prosecutions
issued CPS Guidelines
for prosecutors on assessing
the public interest in cases
affecting the media on 13 September 2012. The guidance specifically referred to Article 10 of the Convention and emphasised
that prosecutors were required to take the right to freedom of expression, including the right to receive and impart information, into account when taking decisions
on whether to prosecute.
36. In March 2015 the Court of Appeal considered the ambit of the offence in the case of R v. Chapman and others ([2015] EWCA Crim 539), where
one of the issues before
the court was whether the
trial judge’s direction concerning the threshold of “seriousness” had been correct.
37. The court referred
to Attorney General’s
Reference (No 3 of 2003) (see paragraph 34 above) and
noted that it had not
been suggested that this formulation
of the law was in any way inaccurate. It considered that there were two
ways in which the jury might be assisted to assess seriousness. The first was to refer them
to the need for them to reach a judgment that the misconduct was worthy of condemnation
and punishment. The second was
to refer them to the requirement that the misconduct had to be judged by them as having had
the effect of harming the
public interest. On the latter,
the court went on to explain:
36. ... In our view, in the context of provision of
information to the media and thus the public, that is the way in which the jury should judge the seriousness of the misconduct in determining whether it amounts to an abuse of the public’s trust in the
office holder. The jury must, in our
view, judge the misconduct by considering objectively whether the provision of the information by the office holder in
deliberate breach of his
duty had the effect of harming the public interest. If it did
not, then although there may have been
a breach or indeed an abuse of trust by the office holder vis-à-vis his employers or commanding officer, there was no abuse
of the public’s trust in the office holder as the misconduct had not had
the effect of harming the
public interest. No criminal
offence would have been committed.
In the context of a case involving
the media and the ability to report information provided in breach of duty and 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’s trust and thus a criminal offence. For example, the public interest can be sufficiently harmed if either
the information disclosed itself
damages the public interest
(as may be the case in a
leak of budget information) or the manner in which the information is provided or obtained damages the public interest (as may be the case if the public office holder is paid to provide the information
in breach of duty).”
- The Law Commission project
38. The Law
Commission was set up for the purpose
of promoting the reform of
the law. In 2016 it began a project on the offence of
misconduct in public office. Its
reform objectives were to decide whether the offence of misconduct in public
office should be abolished,
retained, restated or amended. It published an Issues Paper on 20 January
2016, launching the first phase
of the consultation process.
Appendix C to the paper is entitled “Misconduct in public
office and the ECHR”. It identified
the definition of the seriousness
test as being one of the main difficulties from the perspective of Article 7 of the
Convention. The paper continued:
“C.33. This
question was the main focus of the recent Court of
Appeal decision in Chapman. Here, the seriousness test was compared to the test in gross negligence manslaughter, which also has
difficulties in terms of circularity and uncertainty. The
court felt that it is not
helpful for a jury to be told that the breach
of duty must be so serious as
to amount to a criminal act
and sought to solve this difficulty by applying another method of determining whether the conduct was ‘so serious’. It held
that the jury must be referred to the requirement that the misconduct must be judged by them as having the effect
of harming the public interest.
Unfortunately, the concept of ‘public interest’ is not one with consensus as to its meaning and therefore may not
be a much clearer basis for the test.”
39. The Law
Commission concluded, in so far as
relevant, that the seriousness test was ill-defined and vague and that, since it
was a core element of the offence, the law might be incompatible with Article 7 of the Convention (paragraph
C.35).
40. In the second phase of the consultation process, the Law Commission published Consultation Paper
No. 229 of 5 September 2016 (Reforming Misconduct in Public Office) and invited
responses. It explained that, in the light of
the responses received, it intended to decide on its final recommendations
and present them to
Government.
41. At paragraph
2.18 of the paper, the Law Commission noted that “numerous
problems” had been identified, including:
“(3) An ‘abuse of the public’s
trust’ is crucial in acting as a threshold
element of the offence, but is so vague
that it is
difficult for investigators,
prosecutors and juries to apply.”
42. The paper continued
(paragraph 2.36-38):
“2.36 The Lord Chief Justice, Lord Thomas, reiterated
recently in the case of Chapman that the legal position is that an ‘abuse of the public’s
trust’ is one that has the effect of harming the public interest. However, it remains
unclear what role, if any,
factors such as consequences and impropriety of motive will play
in the assessment of ‘harm
to the public interest’. We
consider that the difficulties currently experienced with the definition
of ‘seriousness’ in the offence
are unlikely to be resolved
by the courts without a
more fundamental review of this
element of the offence.
2.37 There
are two problems with this element. First, the jury is being
asked to make a circular assessment of whether an individual’s breach of duty is serious enough
to be criminal (it is criminal because
it is serious,
it is serious
because it is criminal). Secondly,
this may be compounded by the fact the jury is being
asked to do so without any clear indication of what could amount
to serious, and therefore criminal, misconduct.
2.38 The lack
of comprehensive guidance as to what makes misconduct ‘serious’ causes difficulties for investigators, prosecutors, judges and juries. It is particularly
difficult in terms of
making decisions as to where the line should be drawn between disciplinary
and criminal proceedings.”
43. The Law Commission’s final report and recommendations were published on 4 December 2020. In its report, it repeated its concerns
as to the difficulties a jury may have
in applying the seriousness
criterion. Overall, as regards the common law offence, it concluded:
“In summary, we consider the following to be
the main concerns:
(1) It
is not clear in all cases whether
a person might be subject to the offence, as the category of ‘public
office’ is not defined with sufficient precision. This creates problems in practice, including erroneous charging decisions and successful appeals,
and may offend article 7 of the European
Convention on Human Rights.
(2) The fault element that must be proved appears to vary depending on the circumstances of the case, creating
additional complexity, and leading to costly appeals.
(3) The seriousness
threshold – that the offence amounts to an ‘abuse of the public’s
trust’ – is highly subjective and difficult to apply. This has
led to concern that the offence is being
pursued in some circumstances
that are not sufficiently blameworthy so as to justify criminal
consequences.
(4) There
is a general lack of definition in the scope and subject
matter of the offence, which has led to its application in contentious contexts.”
44. The Law
Commission accordingly recommended
the abolition of the common law
offence and its replacement with two statutory offences: corruption in public office and breach
of duty in public office.
- Duties related to employment in the
Prison Service
45. Rule 67.1 of the Prison
Rules 1999 provides:
“No officer shall make, directly or indirectly, any unauthorised communication to a representative of the press or any
other person concerning matters which have become
known to him in the course of his duty.”
46. Article 4.8
of the Civil Service Code provides:
“Civil Servants must not misuse their official
position or information acquired in the course of their official duties to further their private interest or those of others. They should not
receive benefits of any kind from a third party which might reasonably
be seen to compromise their
personal judgment or integrity.”
47. Clause 14 of
the Editors’ Code of Practice of the
Independent Press Standards Organisation (2015) is entitled “Confidential sources” and provides:
“Journalists have a moral obligation to protect confidential sources of
information.”
48. Recommendation
No. R(2000) 7 on the right of journalists
not to disclose their sources of information was adopted by the Committee of Ministers
of the Council of Europe on 8 March 2000. It sets out in an appendix principles concerning the right of journalists not to disclose their sources of information.
49. Principle
1 provides that domestic law should
provide for explicit and clear protection
of the right of journalists
not to disclose information
identifying a source, in accordance
with Article 10 of the Convention. Pursuant to Principle 3, the right of journalists not to disclose information identifying a source must not be subject to other restrictions than those mentioned in Article 10 § 2 of the Convention. According
to Principle 5, journalists
should be informed by the competent authorities of their right not
to disclose information identifying
a source, as well as the limits of this right, before
a disclosure is requested.
- Council of
Europe Recommendation 1950 (2011)
50. Recommendation
1950 (2011) of the Parliamentary Assembly of the Council of Europe on the protection
of journalists’ sources was
adopted on 25 January 2011.
51. Paragraph
5 provides that:
“Public authorities
must not demand the disclosure
of information identifying a source unless the requirements of Article 10, paragraph 2, of the
Convention are met and unless
it can be convincingly established that reasonable alternative measures
to disclosure do not exist or have been
exhausted, the legitimate interest in the disclosure clearly outweighs the public interest in the non-disclosure,
and an overriding requirement
of the need for disclosure is proved.”
52. At paragraph
11, the Assembly welcomes the fact
that journalists have expressed in professional codes of conduct their obligation
not to disclose their sources of information when
they receive information confidentially. It explains that this
professional ethical
standard ensures that
sources may rely on confidentiality and decide to provide
journalists with information which
may be of public concern. It invites journalists
and their organisations to ensure, through self-regulation, that sources are not disclosed.
THE LAW
- ALLEGED VIOLATION
OF ARTICLE 7 OF THE CONVENTION
53. The applicant
complained that the offence of misconduct in public
office was too vague for him to have foreseen that
as a result of his actions he would be subject to criminal prosecution. He relied on Article 7 § 1 of the Convention, which reads as
follows:
“No one shall
be held guilty of any criminal offence
on account of any act or omission
which did not constitute a criminal offence under national
or international law at the
time when it was committed. Nor shall a heavier
penalty be imposed than the
one that was applicable at the time the criminal offence was committed.”
- Admissibility
54. The Court is of the opinion that the complaint raises sufficiently complex issues of fact and law, so that it
cannot be rejected as manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It
further notes that it is not
inadmissible on any other grounds. It must therefore be declared admissible.
- Merits
- The
parties’ submissions
(a) The applicant
55. The applicant
submitted that at the material time it had not
been possible for him to foresee that by breaching the general
rules of his employment he would be subject to criminal trial and imprisonment. It was only
after he had voluntarily ceased his activities that prosecutions were initiated against public servants and journalists for the offence of misconduct in public office if
information had been provided and money paid. He contended that it was not
until the Court of Appeal judgment
in R. v. Chapman and others (see paragraphs 36-37 above) that it
became clear that payment
for information alone could constitute
criminal conduct. This development, he said, was not
predictable and postdated his own conduct.
56. The applicant
referred to the view of the
Law Commission that the offence was “ill-defined”
(see paragraphs 38-44 above) and submitted that the “piecemeal” development of the law made it difficult for citizens to predict, even after relying on legal advice, or to regulate their conduct.
(b) The Government
57. The Government pointed
out that Article 7 did not require
criminal offences to have a statutory footing. The Court’s case-law had recognised the compatibility with Article 7 of changes to criminal offences, including common law offences, as
a result of legal developments. The elements of the
offence at issue in the present case had been clarified
in Attorney General’s
Reference (No 3 of 2003) with equivalent precision to statutory offences, well before the applicant had begun to commit
it (see paragraphs 33-34 above). In particular, the
Government endorsed the conclusion
of the Court of Appeal that the seriousness
test was sufficiently clear
to enable a person, with
appropriate legal advice,
to regulate his behaviour and foresee whether it was
capable of amounting to misconduct in public office.
58. Concerning
the Law Commission’s
project (see paragraphs 38-44 above), the Government submitted that none of the issues highlighted in the Issues Paper arose
in the applicant’s case. The conduct
for which the applicant had been convicted
had always fallen within the range of conduct to which the offence undoubtedly applied. The applicant’s disclosures to the journalist were, as he might
have foreseen and any competent lawyer
would have advised him, misconduct
in public office on any view.
- The Court’s assessment
(a) General principles
59. Article
7 should be construed and applied in such a way as to provide effective
safeguards against arbitrary prosecution, conviction and punishment. Among its guarantees,
it lays down the principle that the criminal law must not be extensively construed to an accused’s detriment. It follows that offences must be clearly defined by law. When speaking
of “law”, Article 7 implies qualitative requirements,
notably those of accessibility and foreseeability.
This requirement is satisfied where
the individual can know from the wording
of the relevant provision, if need be with the assistance of the courts’ interpretation of it and after taking appropriate legal advice, what acts and omissions will make him criminally liable (see Del Río Prada v. Spain [GC],
no. 42750/09, §§ 77-80 and 91, ECHR 2013; and Dallas v.
the United Kingdom, no. 38395/12, § 69, 11 February
2016, with further references).
60. The progressive development
of criminal law through judicial law‑making is a well-entrenched and necessary
part of legal tradition in
the Contracting States. Article
7 of the Convention cannot be read
as outlawing the gradual clarification of the
rules of criminal liability through
judicial interpretation
from case to case, provided that
the resultant development is consistent with the essence of the offence and could reasonably be foreseen (see Del Río Prada, cited above, §§ 92-93; and Dallas, cited above, § 70, with further references).
61. It
is primarily for the
national authorities, notably
the courts, to resolve problems of interpretation of domestic legislation. It is not
the task of this Court to substitute
itself for the domestic courts as regards
the assessment of the facts
and their legal classification, provided that these are based on a reasonable assessment of the evidence. The Court’s role is
confined to ascertaining whether the effects of such an interpretation are compatible with the Convention (see Dallas,
cited above, § 71).
(b) Application of the general principles
to the facts of the case
62. The Court emphasises
at the outset that the common law nature of the
offence of misconduct in
public office does not in itself give rise to any particular concerns under Article 7. The Court’s case-law makes clear that Article 7 does not require
a criminal offence to be placed on a statutory footing (see, for example, Dallas,
cited above, and S.W.
v. the United Kingdom, 22 November 1995, Series A no. 335‑B, where the Court found no violation in cases concerning common law offences). What is important is
that, whatever the basis
for the offence, the substantive
guarantees of legal certainty are satisfied.
63. The parties do not dispute the four elements of the offence of misconduct in public office or that
these four elements were clearly
articulated by the Court of Appeal in Attorney General’s
Reference (No 3 of 2003) (see
paragraph 33 above)
well before the applicant began to provide information to the journalist
in exchange for money. The applicant
contends, however, that the content of the offence was too
vague to satisfy the requirements of Article 7. He refers to the work of the Law
Commission (see paragraphs 38-44 above) in this respect.
64. The applicant
did not dispute before the Court of Appeal that
the first and fourth elements
of the test for misconduct in public office (see paragraph 33 above) had been
made out (see paragraph 29 above). He did not contest that disclosing internal prison information to the press breached
his employment duties as set out in the Prison Rules (see paragraph 45 above) but argued
that his conduct was protected
by Article 10. His challenge to the clarity of the offence essentially concerned the third element, namely the seriousness test (see paragraph 30 above).
65. Thus,
the Court’s starting point is the explanation of the seriousness test given in Attorney General’s
Reference (No 3 of 2003) itself (see paragraph 34 above). There, the Court of
Appeal pointed to the role played by the motive with which a
public officer acted, the circumstances in which the impugned conduct occurred and the consequences of
the breach, in establishing
whether the requisite seriousness
threshold had been attained.
66. The fact
that the applicant was paid to disclose
the sensitive information in question indisputably pertains to his motive for acting and also forms part of the circumstances in which the conduct occurred. It therefore ought
to have been plain to him before
embarking on his course of conduct in 2006 that his accepting
payment in exchange for stories was
likely to be a factor which would be taken into account by the court
in assessing whether the criminal offence of misconduct in public office had been committed. In fact, in deciding whether there was
a case to answer, the trial judge
considered that the fact that the applicant
had chosen to have a number of cheques made out
to his son was capable of giving rise to the inference
that the applicant “knew very well
that what he was doing was
wrong and in breach of
duty” (see paragraph 18 above). The Court agrees,
and considers in particular
that the attempt to conceal the payments demonstrates
that the applicant was well aware
of the potential role that the payment of money might
play in any subsequent investigation of wrongdoing. The
applicant has argued that the importance of payment to the establishment of the offence was not
fully evident until the Court of Appeal’s 2015 judgment in R v. Chapman and
Others (see paragraph 55 above). The Court observes, however, that payment was only one of the elements taken into consideration by the domestic authorities in establishing the requisite seriousness
threshold for the offence. It further reiterates that Article 7 does not preclude the gradual clarification of the rules of criminal
liability through judicial interpretation (see the case-law quoted in paragraph 60 above). In the applicant’s case, it is satisfied
that any development of the law in Chapman
and Others was consistent
with the essence of the offence
and could have been reasonably foreseen.
67. It must also have been
apparent to the applicant
from Attorney General’s
Reference (No 3 of 2003) that the consequences of his actions would be taken into account when establishing whether the seriousness test had been met. The sentencing
judge pointed to the suspicion that had fallen on innocent
members of staff as a result of the leaks by an unknown
source, the damage to prisoners
demonised in the press and the general enmity and mistrust that the leaks caused both within the prison population and between prisoners and staff (see paragraph 21 above). The Court
of Appeal agreed with these
findings, adding that corruption of a prison officer on the scale present in the applicant’s case undermined public confidence in the prison
service (see paragraph 29 above). These consequences
were considered to be serious. None of the conclusions
by the domestic courts can
be said to have been unforeseeable or surprising.
68. Finally,
the description of the seriousness
test itself in Attorney General’s Reference (No 3 of 2003) tends to suggest that the scope and scale of the behaviour
in question could be a relevant factor when assessing seriousness. In the present case,
as the trial judge and the
Court of Appeal pointed out (see
paragraphs 18, 21 and 28-29 above), the applicant disclosed information to a newspaper in exchange
for payment on forty occasions
over a period of five years in flagrant breach of rules of which he was well aware.
In particular, in his sentencing remarks, the judge emphasised the very serious breach
of trust which had occurred in the case when imposing a custodial sentence of twenty months’ imprisonment. The applicant has argued
that his behaviour ought to have been sanctioned
only in disciplinary proceedings rather than by way of a criminal prosecution. The Court observes that conduct does
not fall outside the scope of the criminal
law merely because it also
constitutes a disciplinary offence.
69. As
noted above, the applicant placed some reliance on the Law Commission’s work (see paragraphs 38-44 above).
The Court observes that the
Law Commission’s final report identifies a concern as to legal
certainty from the perspective
of Article 7 but this is limited to the definition of “public office”. The applicant
did not contest that this criterion
was evidently satisfied in his case (see paragraphs 29 and 64 above). In any event, the report recognises that the classification of “public office” is
clear for civil servants, a
category which included the applicant. While the report also notes that the nature of the seriousness
threshold has led to concern that the offence is being
prosecuted in circumstances
not sufficiently blameworthy so as to justify criminal consequences, this is clearly not
the case here: as explained in the preceding paragraphs, the domestic courts in the applicant’s case pointed to the serious nature of his offending. The Court does not exclude
that there may be cases in which, given their
specific facts, prosecution and conviction for misconduct in public office were arguably not foreseeable.
However, for the reasons outlined above, it does not
consider the applicant’s prosecution and conviction to be such a case.
70. In conclusion,
the Court is satisfied that the applicant ought to have been
aware, if necessary after having sought legal advice,
that by providing internal prison information to a journalist in exchange for money
on numerous occasions over
a five-year period he risked being found
guilty of the offence of misconduct in public office. There
has therefore been no violation of Article 7 § 1 of the Convention.
- ALLEGED VIOLATION
OF ARTICLE 10 OF THE CONVENTION
71. The applicant
complained that the disclosure of his identity by MGN to the police and
his subsequent prosecution and conviction violated his right
to protection as a journalistic source under Article
10 of the Convention, which provides:
“1. Everyone
has the right to freedom of expression. This right shall
include freedom to hold
opinions and to receive and impart
information and ideas without
interference by public authority and regardless of frontiers ....
2. The exercise
of these freedoms, since it carries
with it duties and responsibilities,
may be subject to such formalities, conditions, restrictions or
penalties as are prescribed
by law and are necessary in
a democratic society, in the interests
of national security, territorial integrity
or public safety, for the prevention
of disorder or crime, for the protection of health or morals, for the protection
of the reputation or rights
of others, for preventing
the disclosure of information received
in confidence, or for maintaining the authority and impartiality of the judiciary.”
72. The Court considers it appropriate to examine each of these two complaints
separately.
- The disclosure of the applicant’s
identity
Admissibility
(a) The parties’ submissions
73. The Government submitted that Article 10 did not apply to the mere provision by MGN and receipt by
the police of voluntary
information. They underlined
that the disclosure had been voluntary:
there had been no compulsion involved. They argued that it
would be inimical to the rights and freedoms of a democratic society were a journalist unable to disclose criminal wrongdoing to the police, or the police unable to rely on voluntary disclosures made by journalists. Moreover, in their view there was
no freestanding right of anonymity
for a source under the Convention: the protection afforded by Article 10 in this respect was
accorded only to the journalist. Accordingly, the
Government submitted, the disclosure
of the applicant’s name to the police
did not engage
Article 10.
74. The applicant
argued that the right of a source not to be identified by a journalist was a necessary corollary of the right of the journalist not to disclose the source, and therefore
an inseparable element of
the protection afforded by Article 10. By asking for and receiving information about his identity, the police had acted
incompatibly with his Article 10 rights. Moreover, the disclosure by MGN had not been
truly voluntary, since the company had acted under pressure to avoid a
corporate prosecution. He argued
that the disclosure of his name, without any prior review of the proposed disclosure by an independent body, amounted to an interference with his right to speak out but remain anonymous.
(b) The Court’s assessment
75. In the absence of a court order compelling disclosure of the applicant’s identity, the Court
must examine whether the complaint is compatible ratione personae with the provisions of the Convention, within
the meaning of Article 35 §
3 (a) of the Convention.
76. The applicant’s
position was that the disclosure by MGN was not voluntary but
resulted from improper
pressure from the police and was
therefore akin to the compelled disclosure by the State
of his name as journalistic source. The Court cannot
accept this argument. As the Court of Appeal pointed out, the reference by the
trial judge to the motivation
of MGN in assisting the police
cannot be equated to a finding that pressure was put on MGN to disclose the applicant’s name (see paragraph 25 above). Even though the MoU did not
expressly refer to Article 10, its terms allowed MGN to refuse to disclose information on
Article 10 grounds, including
the right to protect journalistic sources (see paragraphs 8-9 and 25 above).
MGN enjoyed access to legal
advice and, as the Court of
Appeal found, it is inconceivable that they did
not give careful consideration to whether to make disclosure to the
police in the context of
the publicity which Operation Elveden and the Leveson Inquiry were attracting. In these circumstances, the Court accepts the finding of the Court
of Appeal that the disclosure
was “truly voluntary” (see paragraph 26 above).
77. In the absence of any compulsion on MGN to disclose the
applicant’s name, the applicant
has failed to demonstrate that the disclosure was attributable to the respondent
State. In particular, it cannot be said that merely by requesting the information, agreeing
an MoU or accepting receipt of the information the police
interfered with the applicant’s
Article 10 rights. The
applicant’s complaint concerning the disclosure of his information is accordingly incompatible ratione personae with the provisions of the Convention and must be declared inadmissible pursuant to Article 35 § 3 (a).
- The prosecution and conviction
of the applicant
- Admissibility
78. In imparting
information to the journalist in this
case, the applicant can assert
his right to freedom of expression. His prosecution and conviction for disclosing the information amounted
to an interference with his
Article 10 rights. The
Court is therefore of the
opinion that the complaint raises sufficiently complex issues of fact and law, so that it cannot
be rejected as manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, and is not inadmissible
on any other grounds. It must therefore be declared admissible.
- Merits
(a) The parties’ submissions
(i) The applicant
79. The applicant
argued that the decisions to prosecute him and to refuse his applications for abuse of process and no case to answer violated his Article 10 rights, given the circumstances of the disclosure
of his name to the police. He
contended that the offence was vague
and his prosecution on the basis of his actions had not been
foreseeable at the time he carried them out. He also argued that
there had been a clear public interest in
the information he had provided,
and that disclosure of the
information had not been harmful. He claimed that he had taken steps to raise his public interest concerns at the prison on numerous occasions, but that no action had been taken,
causing him to finally resort to providing
information to a journalist to highlight these important issues. He disputed that the information had been received by him in confidence or that its disclosure had been harmful.
He underlined the “chilling
effect” that the prosecution and conviction had had on freedom
of expression. His treatment would
leave sources concerned that, without more, their identities could be disclosed to the police by journalists and discourage them from contacting the media.
(ii) The Government
80. The Government submitted
that any interference because of the applicant’s prosecution or his conviction had been justified
under Article 10 § 2. The criminal offence of misconduct in public office was accessible and foreseeable, and thus “prescribed by law” for the reasons advanced in respect of the Article 7 complaint (see paragraphs 57-58 above).
81. Any
interference was also necessary in a democratic society in the interests
of public safety, for the prevention
of disorder or crime, for the protection of health or morals, for the protection
of the reputation or rights
of others and for preventing
the disclosure of information received
in confidence. The Government pointed out that the applicant had committed a serious offence and that the information he had provided had been
principally received in
confidence, consisting to a large extent
of private information about prisoners
and staff obtained in the course
of his duties. Its disclosure had had a harmful impact on staff and
prisoners and a negative effect
on safety, security and order
within the prison. It had also
been in flagrant breach of duty. The public interest
in free speech had been carefully considered at each stage of the process: the MoU had allowed MGN to withhold the information on public interests
grounds, the decision to prosecute
had been reviewed by the CPS in light of emerging
clarifications from the Court of Appeal as to the public interest defence available, and public interest was a defence to the charge itself which would
have resulted in the applicant’s acquittal had it been
made out. The applicant had
been prosecuted and convicted precisely because his conduct
did not fall
within this defence: the jury’s verdict represented a finding of fact that the applicant’s conduct had not
been in the public interest.
(b) The Court’s assessment
(i) General principles
82. Article
10 protects expressly the freedom “to receive and impart information and ideas without interference by public
authority”.
83. The necessity
of any restriction on freedom of expression must be convincingly established. It is for the national authorities to assess in the
first place whether there is a pressing social need for the
restriction and in making their
assessment they enjoy a certain margin of appreciation (Goodwin
v. the United Kingdom, 27 March 1996, § 40, Reports of Judgments and Decisions 1996‑II).
The Court’s task, in exercising
its supervisory function, is not to take the place of the
national authorities but rather to review the case as a whole, in the light of Article
10, and consider whether
the decision taken by the
national authorities fell within their margin
of appreciation. The Court must therefore
look at the interference
and determine whether the reasons adduced by the national authorities to justify it were “relevant
and sufficient” (see Goodwin,
cited above, § 40).
84. It
is clear from the Court’s
case-law that freedom of expression is of particular relevance to the press, whose
duty it is to impart – in a manner consistent with its obligations and responsibilities
– information and ideas on all
matters of public interest
(see Bédat
v. Switzerland [GC], no. 56925/08, § 50, 29 March 2016). Accordingly,
the safeguards to be afforded
to the press, as part of its
right to freedom of expression, are of particular importance (see Sanoma Uitgevers B.V.
v. the Netherlands [GC], no. 38224/03, § 50, 14 September
2010; and Goodwin, cited above, § 39). The Court has explained that the most careful scrutiny
under Article 10 is required where measures or sanctions imposed on the press are capable
of discouraging the participation
of the press in debates on matters
of legitimate public concern
(see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 64, ECHR 1999‑III; and Times
Newspapers Ltd v. the United Kingdom (nos. 1 and 2), nos. 3002/03 and 23676/03, § 41, ECHR 2009). Accordingly,
a particularly narrow margin of appreciation will normally be accorded where the remarks concern a matter of public interest (see Bédat, cited above, § 49).
85. Furthermore,
the Court has confirmed that under Article 10 that the signalling by an employee in the public sector of illegal conduct or wrongdoing in the workplace should, in certain circumstances, enjoy protection. This is particularly true where the employee concerned is the only person,
or part of a small category of people, aware of what is
happening at work and is thus best placed to act in the
public interest by alerting
the employer or the public at
large (see Guja
v. Moldova [GC], no. 14277/04, § 72, ECHR 2008; and Goryaynova v. Ukraine, no. 41752/09, §§ 49-50, 8 October
2020). In such circumstances,
the Court must enquire into
whether there existed any alternative channels or other effective means for the applicant to remedy the alleged wrongdoing (such as disclosure
to the person’s superior or
other competent authority
or body) which the applicant
intended to uncover (Guja, cited above, § 73).
(ii) Application of the general principles to the facts of the
case
86. The Court has no doubt that
the prosecution and conviction
of the applicant were prescribed by law, within the meaning of Article 10. It has already found
that the offence for which he was prosecuted
was sufficiently clear and foreseeable in the circumstances
of his case (see paragraphs 62-70 above).
87. The Court further accepts that the prosecution and conviction of the applicant pursued the aims cited by the Government, namely
the interests of public safety,
the prevention of disorder or crime, the protection of health or morals,
the protection of the reputation
or rights of others and the
prevention of the disclosure
of information received in confidence.
88. As
to whether the applicant’s prosecution and conviction were necessary in a democratic society, the Court notes that
the applicant’s conduct spanned a period of five years, over the course of which he provided stories in exchange for
payment on forty occasions.
This conduct was, as the trial judge concluded, in flagrant breach of the rules which applied to him as a prison
officer and constituted a very serious breach
of trust (see paragraph 21 above). The applicant did not dispute before the Court of Appeal, as
the trial judge had found, that he was aware of the rules and he accepted that his
conduct had amounted to a disciplinary offence (see paragraph 23 above). There can therefore be no doubt that the applicant knowingly engaged in a course of conduct contrary to the requirements of his public office and that the
scope and scale of his unlawful
conduct was significant. The Court also attaches significant weight in this context to the serious harm caused
to other prisoners, to
staff and to public confidence in the prison service as a result of the applicant’s behaviour (see paragraph 67 above). There was
therefore a strong public interest
in prosecuting him, in order to maintain the integrity and efficacy of the prison service and the public’s
confidence in it.
89. On the other hand, the domestic courts noted that there was no public interest in the majority of the
information disclosed by the applicant,
nor had he been primarily motivated by public interest concerns. In his sentencing remarks, the judge recorded the applicant’s own concession in evidence that on a number of occasions he had disclosed information when the
public interest had had nothing at
all to do with what he was disclosing (see paragraph 20 above). The judge found as fact
that the applicant had been motivated
by money and by an intense dislike of the prison governor (see paragraph 21 above). The Court of Appeal, having
set out the articles for which
the applicant had been the source and after careful
consideration of the nature of these
articles, likewise noted that there
was no public interest in
the disclosures (see paragraphs 24-29 above).
Since the applicant moreover did not
claim before this Court to have acted as a whistle-blower,
as defined in the Court’s case-law (see paragraph 85 above), there is
no need for the Court to enquire
into the kind of issue which has
been central in the above case-law on whistle-blowing, namely whether there existed
any alternative channels or
other effective means for the applicants to remedy the alleged wrongdoing which the applicants intended to uncover (compare Guja,
cited above, § 73). The
Court would nonetheless observe in this respect that the sentencing judge pointed to the fact that, as a trade union representative, the applicant could have used
official channels to disseminate
information had public interest
been his sole concern (see paragraph 21 above).
90. In conclusion,
the reasons for the applicant’s
prosecution and conviction were relevant and sufficient and no violation of Article 10 is disclosed.
FOR THESE REASONS, THE COURT,
UNANIMOUSLY,
- Declares the complaint under Article 7
and the complaint under Article 10
in so far as it concerns the applicant’s prosecution and conviction admissible;
- Declares the
remainder of the application inadmissible;
- Holds that there has been no violation of Article 7 of
the Convention;
- Holds that there has been no violation of Article 10 of
the Convention;
Done in English, and notified
in writing on 6 July 2021, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Ilse Freiwirth Yonko Grozev
Deputy Registrar President