The Investigatory Powers Tribunal has ruled that the Metropolitan Police was justified in three out of four instances in which it secretly grabbed the call records of Sun journalists to find police sources.
But it has ruled that, although the Met acted within the rules in three cases, all the authorisations were not compatible with Article 10 of the European Convention because the law as it stood did not take into account the reporters' right to freedom of expression and the importance of protecting confidential sources.
It has also ruled that the Met breached a reporter's human rights in respect of one application to find communications data, but mainly because it already found the relevant information by spying on other journalists.
The ruling follows a case brought by The Sun after the Met revealed last year that it had secretly obtained the call records of the paper's newdesk and political editor Tom Newton Dunn as part of the inquiry into Plebgate leaks.
It has since emerged that the Met also obtained the mobile phone records and GPRS location data of Sun reporters Anthony France and Craig Woodhouse in order to find and punish officers accused of leaking information to the paper.
The IPT has ruled that in three of the cases the Met’s actions were necessary and proportionate under the code of practice which then existed. However, in the case of Woodhouse it has ruled that the Met breached this.
It has also ruled that in the Woodhouse case, the Met Police breached the rules because the records grab was not necessary and proportionate. It said this was a breach of the Article 10, right to freedom of expression, and it is to take submissions on remedies.
The IPT noted that the law has now changed and police must now seek judicial approval when seeking call records in order to identify journalists’ sources.
Officers obtained details of incoming and outgoing calls and GPRS location data for France and Newton Dunn’s mobile phones for seven days from 19 September 2012.
This followed publication of a front-page story in The Sun revealing that former chief whip Andrew Mitchell had called police officers “fucking plebs” in an alteration outside 10 Downing Street.
The tribunal found that there were “significant errors” in the RIPA applications made by the Met which included mixing France and Newton Dunn up.
Officers also obtained nine days' worth of incoming and outgoing call data, as well as GPRS location information, for Woodhouse’s phone from 18 September 2012.
The fourth application – for The Sun's newsdesk – came about as a result of information released by The Sun in defence of a libel claim brought by Mitchell.
It revealed that an un-named caller phoned The Sun claiming to have witnessed the Plebgate incident.
As a result of this the Met obtained details of all calls made to The Sun newsdesk telephone number between 7.30 and 9am on 20 September 2012.
The IPT said: "There are criticisms that can properly be made of the process under which the authorisations were granted. The reasoning was not entirely clear in some respects, there were some material errors and the important principle of the need for an overriding interest to justify the obtaining of data which would reveal a journalist’s sources was not properly articulated.
"However Detective Superintendent Hudson explained his reasoning more fully in his witness statement and the tribunal is satisfied that he approached these applications conscientiously and exercised his own independent judgment in granting the authorisations.
"The Tribunal is satisfied that it was necessary… to obtain communications data directed to identifying the source of the information disclosed to The Sun.
“The applications were made for the purpose of investigation of a serious criminal offence, namely a conspiracy by a number of police officers in the DPG to discredit a government minister.
"From 22nd December 2012 there were reasonable grounds to suspect such a conspiracy."
The IPT accepted that at the time it made the applications, the Met had reason to believe there might have been conspiracy against Mitchell – although such a conspiracy was rejected in the Mitchell libel trial.
It said: “There were good reasons to believe that at least two other officers in the DPG must have told lies about the incident or about communicating with the press.
“The information gained by the investigating team by 23rd December did not prove the conspiracy under investigation, but it supported the allegation.
“The fact that PC Wallis had admitted having told lies in his email was a compelling reason for suspecting that a serious criminal offence might have been committed. There were more than adequate grounds for suspecting that a number of DPG officers had conspired to discredit Mr. Mitchell.”
In the case of the third authorisation, against Woodhouse, the IPT found it was wrong because there “was no pressing social need for the purpose of the detection of a serious crime” noting that by that stage it had already identified which officer had leaked the Plebgate police log to The Sun.
A Sun spokesman said: "We are pleased that the specialist Tribunal has today ruled that the Police's actions in secretly accessing the telephone data of The Sun and three of its journalists was in breach of our rights to protect our confidential sources.
"Today's outcome vindicates our concerns that our rights to protect confidential sources on matters of significant public interest – such as 'Plebgate' – are at risk unless the law is now changed to protect all journalists from unfair and unnecessary Police intrusion."
Met Assistant Commissioner Patricia Gallan, who oversaw the Operation Alice Plebgate investigation, said: “This investigation was a thorough search for the truth as at the heart of it was the extremely damaging allegation that police officers had lied and conspired to unseat a Cabinet Minister.
“It was vital for public confidence in the police, for confidence of the Government and all serving police officers that we investigated those allegations. The investigation was overseen by the Independent Police Complaints Commission and we worked closely with the Crown Prosecution Service. As a result of this investigation one police officer went to prison and four others were dismissed.
“The MPS has never sought to shy away from our use of RIPA in this case. Our commitment to transparency has been reflected in the IPT ruling, which states that it was to the credit of the MPS for putting this information into the public domain, through publishing our report detailing the Operation Alice investigation.
“We completely recognise the importance of journalistic privilege and how we should always, wherever possible, seek to protect that right.
“We welcome the ruling of the IPT that our use of RIPA was necessary, proportionate and lawfully applied in three of the four cases and we respect the decision with regard to the fourth. We recognise the level of concern from the media regarding journalistic privilege that this case sparked. All the RIPA applications were made in good faith.
“The MPS welcomed the clarity that IoCCO’s recent report provided on RIPA, which is a hugely complicated area of law. Since then we are operating in line with the draft legislation and applying before a judge when we are seeking material that may identify journalistic sources. This can only bring greater confidence and transparency in this controversial area, for journalists, the public and us.
"I also wish to pay tribute to the commitment and professionalism of all those in the Operation Alice investigation team who conducted such a thorough investigation in complex and unusual circumstances"
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