The case for the prosecution

Almost immediately after the Court of Appeal’s judgment in R v Chapman and others [2015] EWCA Crim 539, the Crown Prosecution Service (CPS) took the decision to offer no evidence in the future prosecutions of nine journalists, all of whom had been charged with conspiracy to commit misconduct in public office as part of Operation Elveden. Given the massive scale of the investigation (and the millions of pounds spent so far on the Elveden trials), this was a volte face from the CPS – what changed?

In Attorney General’s Reference (No 3 of 2003), the court held that the offence of misconduct in public office had four elements:

• A public officer acting as such

• Wilfully neglects to perform his duty and/or wilfully misconducts himself

• To such a degree to amount to an abuse of
  the public’s trust in the office holder

• Without reasonable excuse or justification.

The first issue in R v Chapman was whether the
trial judge’s direction in respect of the threshold required for misconduct in public office (the third element of the offence) was correct.

The trial judge (His Honour Judge Wide QC) had directed the jury in relation to the third element as follows: ‘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.’

The Court of Appeal found that the jury had
been misdirected as to this element of the
offence as they had not been given assistance
in determining the level of seriousness required. The jurors should have been told that they should come to a judgment that the misconduct was worthy of condemnation and punishment and that it had the effect of harming the public interest. This meant that the convictions of the public official Scott Chapman and journalist Lucy Panton were unsafe.

Public interest

The court made clear that the public interest
could be harmed where the information disclosed harmed the public interest (for example, by advance leaking a sensitive section of the Budget), or where the manner of obtaining or providing the information damaged the public interest (e.g. where the information was provided for payment in breach of duty).

After the Court of Appeal’s ruling, the CPS issued additional guidance on cases involving payments made to corrupt public officials by journalists, which requires prosecutors to consider the facts and circumstances as the journalist knew them to be when considering whether to prosecute. These circumstances include those which impact on the seriousness of the conduct, which can include the public interest.

Most importantly, the CPS has made clear that it is unlikely to be in the public interest to prosecute in cases where ‘competing considerations are finely balanced’ – for example, where ‘the information will often not harm the public interest because it is effectively gossip […] and it may have some public interest but not reach the high standard of public interest described in [the CPS guidelines]’.

This guidance clarifies a charge which Mr Justice Saunders (who presided over the 2015 Old Bailey trial of R v Kay and others, where all defendants, including four journalists, were acquitted) described as ‘extremely difficult even for lawyers
to understand’. The guidance is particularly pertinent to that trial, given that some of the allegations made by the prosecution were that public officials sold ‘gossip’ and ‘tittle tattle’ about the royal princes during their tenures at Sandhurst.

On 17 April 2015, the CPS published its decisions on several ongoing Elveden cases. While the
CPS decided to continue to proceed against the relevant public officials, the majority of the cases against journalists were dropped. In four of the cases, the CPS cited the fine balance of competing considerations of the harm caused by the alleged payments and the lack of harm caused by the publication of the stories.

It seems that had the new guidance existed
back in 2012, many of the journalists who have
since faced trial would never have been charged. One of the few journalists whose prosecution the CPS decided to continue was convicted on 22 May 2015, indicating that the new guidance may have helped the CPS to determine when there is a realistic prospect of conviction under the full code test.

Hearsay evidence

The recent case of Lee Stewart Barnaby v Director of Public Prosecutions [2015] EWHC 232 has wide-ranging implications for future domestic violence prosecutions.

The case concerned Ms Glenda Gibb, whose boyfriend Mr Lee Barnaby was convicted of battery after strangling and biting her. Gibb telephoned the police three times shortly after the incident; during the first two calls Barnaby was still at the property. Gibb is recorded saying,
‘I can’t really talk; I’ve just been attacked by my boyfriend’, ‘my boyfriend’s just strangled me; I can’t really talk’.

When the police arrived, six minutes after her last call, Gibb was visibly agitated and upset. She told the officers that she had woken to find Barnaby ‘strangling [her] […] [biting her] cheek whilst strangling [her] and calling [her] a b**** and c***’. Gibb refused to give a statement on the basis that she had done so for a previous incident and it had only enraged Barnaby. She was fearful for the safety of both herself and her son.

At trial, Gibb’s recorded telephone conversation and comments to the police were admitted as hearsay under section 118(1)(4) of the Criminal Justice Act (CJA) 2003 (the res gestae gateway).
This states that ‘in criminal proceedings, a statement is admissible as evidence of any matter stated if […] the statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded’. Barnaby appealed his conviction
on the grounds that the evidence was wrongly admitted.

The appellant submitted that the court at
first instance was unable to assess whether the evidence was sufficiently contemporaneous
to discount the possibility of concoction or distortion. Credibility was in dispute: Gibb had made two remarks to the police which had later turned out not to be accurate. The appellant relied on this as evidence of the enduring hostility between the two which may have led to the latter providing an unreliable account.

It was also submitted that there was a lack of continuity in the evidence concerning the 999 telephone call, and that evidence of both the call and Gibb’s comments to the police should have been admitted under section 114(1)(d) CJA 2003 (the ‘interests of justice’ gateway), in order to trigger the court’s considerations of the criteria listed at 114(2)(a)-(i), including the reliability of the witness, the prejudice to the appellant, and the reasons for the witness’s absence.

Res gestae principle

Dismissing the appeal, Mr Justice Jay concluded that ‘this would have been a startling and dramatic event that would have dominated the thoughts of Gibb and her utterances would have been instinctive and spontaneous’, thereby qualifying for the res gestae gateway.

According to Attorney General’s Reference (No 1 of 2003) [2003] EWCA Crim 1286, ‘it could not be right that the Crown should be permitted to rely only on such part of a victim’s evidence as they considered reliable without being prepared to tender the victim to the defence, so that the defence could challenge that part of the victim’s evidence on which the Crown sought to rely’.

Controversially, the court held that the prosecution was not using unfair tactics in
order to avoid introducing evidence that was potentially inconsistent with the case against the defendant. The court showed great magnanimity in its treatment of the alleged victim, concluding that the ‘potentially dangerous position’ in which Gibb had been placed overrode the right of the defendant to effectively challenge the case against him.

The judgment leaves the res gestae principle vulnerable to abuse: in future, it is possible that complainants could ape the effects of an attack (sufficient distress on the phone to the police; injuries consistent with abuse) in order to put forward evidence against the defendant, without subjecting themselves to cross-examination in court, thus bypassing the procedural safeguards which attach to section 116 CJA 2003.

The court has identified an evidential issue and sought a solution through the gradual erosion of the defendant’s rights, creating an evidential inequality of arms between the prosecution and defence. Barnaby is likely to place an increased administrative burden on the courts: there will be more pre-trial legal argument between the two sides as the prosecution attempts to rely on Barnaby to bolster the evidence in the face of
a reluctant witness, as is so often the case in domestic violence trials. SJ

Catherine Fischl, pictured, is an associate at Peters and Peters and Kate Parker is a paralegal at Peters and Peters, will commence a pupillage with 5 Paper Buildings in October 2015