Tim Crook is reader in media at Goldsmiths and a visiting professor at Birmingham City University
Police 'hacking' of journalists' phone records to identify their sources is a scandal and human rights issue that dwarfs the tabloid phone-hacking affair that led to the Leveson Inquiry.
Press Gazette discovered the practice when studying the small-print of a report into the Metropolitan Police’s “Operation Alice” investigation of Plebgate – the political fracas involving an altercation between former Tory whip Andrew Mitchell and Downing Street police officers.
The Sun has lodged an official complaint with the Investigatory Powers Tribunal after police used the Regulation of Investigatory Powers Act(RIPA) to obtain the phone records of its political editor Tom Newton Dunn.
Quite aside from the fact that the consequences of his being hacked have been devastating for Newton Dunn’s alleged sources – police officers lost their jobs – the endangering of the confidentiality of journalist’s sources is an issue of grave constitutional importance. The journalist-source relationship is enshrined both in English common law and European Human Rights jurisprudence. Leading media law QC, Gavin Millar has said that in his opinion police use of RIPA to obtain journalists’ phone records to find confidential sources is “completely illegal … But the evidence suggests they have started to do this without compunction.”
The Met should have used the Police and Criminal Evidence Act 1984 (PACE) which would have required a hearing before an independent judge with all the parties who could be affected, journalists, and even the sources, entitled to representation.
Save our sources
What Press Gazette has exposed is turning into a tsunami of revelations and multiple legal actions.
The Times reported recently that Kent police, investigating the Chris Huhne speeding points scandal, secretly obtained the phone records of a Mail on Sunday journalist and one of his sources for the story, even though a judge had agreed that the source could remain confidential. The newspaper explained its side of the story at the weekend.
Press Gazette has blitzed police authorities with freedom of information (FOI) requests and the results are deeply disturbing, not least the revelation that the Met apparently did not keep records of their snooping on journalists. The stone-walling and obfuscation indicates that surveillance and intrusion into the journalist-source relationship may have been going on since RIPA was passed in 2000.
This is a sign that the fall-out from the Leveson inquiry, which has led to the persecution of tabloid journalism in the country, has gone too far. Operation Elveden, which looked into tabloid payments of public officials, primarily at the Sun and former News of the World, appears to have contributed to some kind of institutional assumption that journalist-source communications could be intercepted in the pursuit of any criminal investigation.
There is deep resentment by the journalists and sources who have been arrested, charged and prosecuted that their public interest motivation was not protected by the courts.
The Press Gazette campaign is gaining momentum and its editor suggested that “cracks are appearing in the dam of silence of police spying on journalists and their sources”. The Interception of Communications Commissioner has ordered police forces to reveal use of RIPA spying powers against journalists.
There is indeed an unhappy and acrid state of war within and without journalism about what to do in relation to press regulation and conduct and publications which are not good, plainly bad, and undeniably ugly.
Vital for democracy
In a way, British journalism, politics and legal culture may be on the road to rediscovering the correct path of respect and protection of this vital constitutional principle. In a democratic society, police intrusion into and use of confidential information pertaining to journalist and source contact should be a no-go area. The Crown Prosecution Service, the Director of Public Prosecutions and courts should refuse to use and admit it as evidence.
English common law has decreed it so. European Human Rights law has affirmed it so in the strongest and most powerful rulings possible by the European Parliament, European Council, and Grand Chamber of the European Court of Human Rights at Strasbourg over the past 30 years.
The shield applies to sources “with unclean hands” and who are breaking the law by talking to journalists. This includes police officers and public officials – even when they are paid or have demanded rewards in return. Yet considerable time and money is spent in trying to break open these relationships in order to apprehend sources, even when their revelations have been demonstrably in the public interest.
Meanwhile the state spends millions of pounds on police and security service informants each year – a significant proportion of whom are engaged in unlawful activities.
Significant legal precedents have reaffirmed this essential rule for the maintenance of liberty and democracy. Nothing should be done to constrict, punish or deter this channel of communication. The contact between sources and journalists must be held to be as sensitive and privileged as that between lawyers and clients, and doctors and their patients and as politically sacrosanct as the First Amendment of the United States Constitution. This privilege should be as near to an absolute as it is possible to achieve – part of the cultural, political and ethical DNA of all journalists, police officers, lawyers, judges and politicians.
That is not to say there cannot be exceptions, but there must be a demonstrable public interest argument, and the weight must be on the applicant to demonstrate this – with the interested parties always represented and able to argue their rights accordingly.
It would certainly be sensible to embed into any criminal law pertaining to journalistic operations a statutory public interest defence and at the very least statutorily declare the concept of media freedom; something that even Lord Justice Leveson recommended.