‘Plebgate’ and the protection of journalistic sources

December 17th, 2015

It has been a mixed day for the media’s entanglements with the judiciary. Chris Knight posted earlier today about the unhappy outcome for Mirror Group Newspapers before the Court of Appeal in the Gulati privacy damages litigation arising from phone-hacking.

News Group Newspapers, however – together with Sun journalist claims Tom Newton Dunn, Anthony France and Craig Woodehouse – had a happier outcome in another case about telephone privacy, though this time with the media as victim rather than perpetrator of the interference.

Judgment IPT/14/176/H saw the claimants succeed in part in their claim against the Metropolitan Police in the Investigatory Powers Tribunal (‘IPT’).

That case concerned ‘Plebgate’, namely the infamous encounter between the then Minister Andrew Mitchell and a police officer at Downing Street. The Met Police suspected that confidential policing information had been unlawfully disclosed to journalists at The Sun. Its investigations eventually extended to apparent malicious conspiracy and the perversion of the course of justice by certain officers.

The police investigations entailed the use of warrants under the Regulation of Investigatory Powers Act 2000 (‘RIPA’) to obtain mobile phone data of police officers under suspicion, but also of journalists suspected to have been in contact with officers who were acting unlawfully.

The relevant Code of Practice in force at the time of these RIPA authorisations was entitled Acquisition and Disclosure of Communications Data, promulgated in 2007. It included no specific protection for journalists and their sources. That has now changed, with a 2015 Code requiring judicial (as opposed to police) authorisation for surveillance relating to journalistic sources.

This claim before the IPT was about RIPA authorisations issued under the 2007 regime. The IPT was asked to determine whether or not those authorisations to obtain communications data revealing journalists’ sources breached Article 10 ECHR. The IPT’s answer was yes, though it should be noted that it did not uphold the claims in all respects.

The IPT accepted that the Metropolitan Police honestly and reasonably believed that there were grounds for suspecting an offence of sufficient seriousness to justify taking steps to identify the source of the leak. It also held that without the communications data, this investigation could not be effective. On those broad issues, the IPT agreed with the police.

It also upheld the granting of 3 of the 4 RIPA authorisations under challenge. Those 3 were necessary and proportionate measures, but the remaining authorisation (referred to as ‘the Third Authorisation’) was not. See para 79:

“There is a distinction between this authorisation and the others. Before the Third Authorisation was made the police had already discovered that the source was PC Glanville. In contrast the First and Second Authorisations were essential in order to discover the source of the story published by The Sun. It was also necessary to grant the Fourth Authorisation to discover whether another officer of the DPG was implicated in the provision of false information to The Sun.”

At a systemic level, the IPT also considered whether the pre-2015 RIPA regime (which lacked specific safeguards for journalistic sources) was compatible with Article 10 ECHR. See para 104:

“…cases directly engaging the freedom of the press require to be treated differently. The case of Goodwin makes clear that the protection of journalistic sources is one of the basis conditions for press freedom, and that the necessity for any restriction on press freedom must be convincingly established.”

The systemic problem in this case was that the pre-2015 regime lacked sufficient safeguards against disproportionate intrusions into press freedom.

Matters have now changed. That is not to say that the police are now unable to wade into journalists’ sources. Rather, if they wish to do so, they must get authorisation from a judge first.

Robin Hopkins @hopkinrsobin

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