Media law QC warns police could use Investigatory Powers Bill to ‘routinely’ identify journalistic sources

Media lawyer says IPB not Article 10-compliant
Judge is 'only reviewing' police decision to obtain journalistic records
Judicial approval process is 'flawed'
'The worry is that the police will now start using these powers routinely to identify sources'

Media lawyer Gavin Millar QC has expressed several concerns over the draft Investigatory Powers Bill, which was laid before Parliament yesterday.

The IPB requires police forces to obtain approval from an independent "judicial commissioner" before obtaining journalists' phone records to find their sources. This requirement for judicial oversight was the central demand of Press Gazette's Save Our Sources campaign.

But there are concerns over the fact applications to the judicial commissioner can be made without the knowledge of the media organisation concerned.

Millar, who is representing The Sun in its claim against the Metropolitan Police for secretly obtaining its journalists telecoms records to find the Plebgate story source, has highlighted this and otherconcerns.

He said it is "good" that the IPB "gives explicit protection to journalists", an improvement on the Regulation of Investigatory Powers Act.

But he said the Bill "would not bring our law into line with the requirements under Article 10" of the European Convention on Human Rights.

And he added: "The worry is that the police will now start using these powers routinely to identify sources."

Millar said that under the ECHR, judges must decide "whether it is necessary to override the strong public interest in protection of journalistic sources". He said: "Under this draft the judge is only reviewing the decision of the police to authorise the obtaining of the journalist’s data.

"The judge is only assessing whether there were 'reasonable grounds' for the decision of the police. This is not the judge taking the decision, still less is it the judge applying the Convention source protection principles."

Millar also said police do not have to apply the ECHR "source protection principles", which are, he said:

"There must be an overriding requirement in the public interest – in order to remove the source protection. This is a very high hurdle and is not specified in the Bill. To give the most important example under the Convention law the police would have to be investigating serious crime before they could even contemplate obtaining source identifying material (eg terrorism, murder, organised crime). Under the Bill the journalists data can be obtained in any criminal investigation, however minor
"The police must have exhausted all other avenues for obtaining source identifying information – in other words the application to see the journalist’s data should always be the last resort. This requirement is not specified in the Bill
"The intelligence services are excluded from the requirement to obtain even this (flawed) form of judicial approval. Yet the Convention law applies them just as much as to the police who obtain source identifying information."

Millar also condemned the Bill for not requiring media organisations to be informed of applications.

He said: "This means that the public interest/press freedom arguments for maintaining source protection are never put forward. Only the journalist/media organisation will be able to put these forward properly.

"Both under the Police and Criminal Evidence Act 1984 and the Terrorism Act 2000 when the police apply for orders for material in the possession of the journalist to be handed over (known as production orders) there must be a hearing before a judge at which the journalist is entitled to be heard.

"The worry is that the police will now start using these powers routinely to identify sources instead of making PACE/TA applications for the journalist’s material.

"This will ensure the journalist will never get heard. The strategy will work in most cases because the journalists all use smart phones these days and the communications data/GPRS is almost certain to identify the source."