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October 6, 2014updated 07 Oct 2014 3:38pm

Breakthrough! Interception Commissioner orders police forces to reveal use of RIPA spying powers against journalists

By Dominic Ponsford

The Interception of Communications Commissioner has announced an inquiry into police use of spying powers against journalists.

The move comes less than a month after Press Gazette launched the Save Our Sources campaign urging the Commissioner to take action after it emerged that the police had secretly grabbed the phone records of The Sun newspaper. So far more than 1,000 journalists and others signed a petition directed at the Interception Commissioner.

The telecoms data, secretly grabbed under the Regulation of Investigatory Powers Act, was used to find and punish three officers accused of legally leaking information about the Plebgate affair. It has since emerged that police have also secretly seized the phone records of journalists on the Mail on Sunday who were not under suspicion of breaking the law.

Acting Interception of Communications Commission Sir Paul Kennedy announced this morning that he has written to all chief constables and ordered them to provide full details of use of RIPA powers to identify journalistic sources. Head of his office Joanna Cavan acknowledged the role Press Gazette has played in bringing about the inquiry, saying the campaign had "helped to highlight public concerns".

Kennedy said: “Today I have written to all Chief Constables and directed them under Section 58(1) of RIPA to provide me with full details of all investigations that have used Part I Chapter 2 RIPA powers to acquire communications data to identify journalistic sources. 

"My office will undertake a full inquiry into these matters and report our findings to the Prime Minister and publically so as to develop clarity in relation to the scope and compliance of this activity.”

He also said: “I fully understand and share the concerns raised about the protection of journalistic sources so as to enable a free press.

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“My office published some initial advice on this matter via our website on 4th September 2014. This publication sought to highlight and explain the law in relation to Part I Chapter 2 of RIPA and to importantly explain how complaints are dealt with when non-compliance is suspected.

“We highlighted that, as the law stands at the moment, communications data generated by communications companies are business records, but recognised that, when in the possession of the police and analysed such data can be used to quickly identify who has communicated with whom and inference can be drawn as to why those communications have taken place.

“The communications data code of practice was drafted some eight years ago and, unlike the interception or the surveillance code which were recently updated, contains no advice on dealing with professions that handle privileged information, or the use of confidential help-lines which is problematical in itself as our role is primarily to inspect public authorities on their compliance with the Act and its code.

“The Government’s Note on the European Court of Justice Judgment1 outlines the Government’s intention to amend the communications data code of practice, ensuring that where there may be concerns relating to professions that handle privileged information (for example, lawyers or journalists), public authorities give additional consideration to the level of intrusion.

“During the passage of the Data Retention and Investigatory Powers Act (DRIPA) there were several interventions during the debates about legal privilege and matters relating to journalists. The Minister James Brokenshire stated the Government will be amending the code of practice on the acquisition and disclosure of communications data later this year and I urge the Home Office to expedite matters to bring about early public consultation.

“There needs to be an informed discussion to bring about an agreement as what that advice will be. Any advice should take into consideration the case law relating to various rulings regarding freedom of expression when intertwined and balanced against, for example, the prevention or detection of crime or matters relating to national security."

He said that his office will be contributing to a public consultation for the communications data code of practice which Parliament has indicated should start later this year, adding: "I would urge all those who feel strongly about this topic to also contribute to the consultation."

Meanwhile The Sun is calling for a public hearing of the Investigatory Powers Tribunal to examine whether the Met Police breached the Human Rights Act by secretly the grabbing the phone records of its newsdesk and of political editor Tom Newton Dunn to find and punish the alleged Plebgate sources.

And the Lib Dems have backed the Save Our Sources campaign as official party policy. Yesterday they overwhelmingly supported a motion calling for a change in the law to protect legitimate whistleblowers from state snooping.

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