The court which oversees state surveillance is to question the Met Police over its secret seizure of The Sun’s phone records.
The Sun complained to the Investigatory Powers Tribunal (IPT) following the revelation in September that the Met had secretly viewed the phone records of The Sun and the paper’s political editor Tom Newton Dunn.
The force used spying powers under the Regulation of Investigatory Powers Act to find and punish three officers accused of leaking information about the Plebgate incident.
The IPT’s job is to ensure that the various public authorities using covert surveillance powers do so in a way which is compatible with the European Convention on Human Rights (as translated into UK law under the Human Rights Act 1998).
The European Court has previously strongly defended the right to confidentiality of journalists’ sources under Article 10 of the Convention (which protects the right to freedom of expression).
Lawyers for The Sun are likely to argue to the IPT that the Met’s use of spying powers to identify lawful journalistic sources was a clear breach of Article 10.
Gavin Millar QC, who is acting for The Sun, told a law conference last year police use of RIPA to obtain journalists’ phone records to find confidential sources is "completely illegal under article 10… a violation of the article 10 [freedom of expression] rights of the journalist and the news organisation".
“But the evidence suggests they have started to do this without compunction – they’ve done it in a couple of cases I’ve been involved in.”
Newton Dunn’s source, PC Jim Glanville, was sacked from his job in the police as was PC Gillian Weatherley, who shared information about Plebgate with Glanville but said she did not know he was in contact with The Sun.
A further suspected source for the paper, PC Susie Glanville, identified from calls to the newsdesk, was also sacked
The Crown Prosecution Service refused to prosecute the three officers because it said a jury would judge they acted in the public interest.
It is not known when the hearing will take place. The IPT said it is bound by "strict confidentiality" and The Sun declined to comment further beyond a brief report which appeared in today's paper.
Public authorities make around 500,000 requests for telecoms information a year under RIPA.
Since 2000 the IPT has upheld ten complaints about state surveillance.
The IPT normally meets in secret but has said that it is “minded” to hear The Sun complaint in open court.
The Office of the Interception of Surveillance Commissioner has asked every police force in the UK to reveal use of RIPA against journalists over the last three years and is expected to publish a report this month.
Essex/Kent Police has used RIPA to review the phone records of two Mail on Sunday journalists who were not under suspicion of breaking the law. And Suffolk Police has admitted viewing the phone records of an Ipswich Star journalist in order to find a lawful police source.
Press Gazette has also seen evidence suggesting that Cleveland Police has used RIPA to identify a media source.
Every police force in the UK has rejected a Freedom of Information Act request from Press Gazette asking for information about use if RIPA against journalists.
The Home Office is currently consulting on a new Acquisition and Disclosure of Communications Data Code of Practice.
This document appears to sanction future police spying on journalists by stating: “Communications data is not subject to any form of professional privilege – the fact a communication took place does not disclose what was discussed, considered or advised.”
It states that police forces can continue to view journalists’ phone records provided they take a note of the fact they have done so and give “special consideration to necessity and proportionality”.
They can also sign the Press Gazette Save Our Sources petition, which is now also addressed to Home Secretary Theresa May as well as the Interception Commissioner. This petition states that police forces should only be able to view a journalist’ phone records with the approval of a judge.