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February 5, 2016

Phone-hacking: For journalists it means a stretch in Belmarsh, for the police the punishment is nothing

By Dominic Ponsford

So if a journalist illegally listens to the voicemails of a celebrity they can expect dawn raids, years on bail, an Old Bailey trial and a stretch in Belmarsh.

If a cop illegally accesses a journalists' mobile phone data to identify their confidential sources, driving a coach and horses through Article 10 of the European Convention on Human Rights, the punishment is nothing.

This was the judgment yesterday of the Investigatory Powers Tribunal, the court which decides when the state has overstepped the mark in its use of spying powers.

The police didn't just access journalists' call data, they triangulated GPS signals so they could track movements to check up on who they were meeting.

This information was used to find and sack three police officers accused of directly, and indirectly, leaking information about Andrew Mitchell's foul-mouthed 'Plebgate' tirade outside Downing Street to The Sun. It's worth bearing in mind that the Crown Prosecution Service found that the officers acted in the public interest so declined to prosecute them.

The Investigatory Powers Tribunal ruled that three of the police grabs of journalists' call data were lawful, because they were within the terms of the Regulation of Investigatory Powers Act as it then stood. In 2012 the act made no reference to the fact that journalists and their sources have special protection from state surveillance under Article 10.

The court ruled that the law as it then stood was in breach of Article 10, but it also said that the changes brought in after the Press Gazette Save Our Sources campaign last year were sufficient to address this. Police requests to view telecoms records in order to identify journalistic sources now need the approval of a judge.

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The IPT ruled that the police request to view nine days of call records from Sun reporter Craig Woodhouse was unnecessary, and therefore illegal. They also triangulated GPS to track his movements. But they also said that because he still has his job, and has in fact been promoted, he does not deserve compensation.

No matter that dozens of sources may have been compromised and that many will think twice about contacting him again. And no matter that this was a genuine invasion of privacy. No one at the Met Police has been punished.

I'm not suggesting that officers should face criminal sanctions, telecoms grabs after all are an important part of their work when used correctly. But a fine for the force and some sort of internal disciplinary process would at least send out the message that freedom of expression is something that is taken seriously in this country.

The court apparently feels that because this was call data, rather than the content of calls and messages, 'so what?'. But you can bet the punishment would be severe if it was journalists who had done the illegal hacking.

The law is clearly inadequate at the moment to protect journalists and their sources.

Even the improvements made after Save Our Sources, set to be included in the new Government 'snoopers' charter' legislation, don't go far enough. Now police must seek the approval of a judge they will think twice before spying on journalist. But the judge will only hear one side of the argument because the applications will still be made in secret to telecoms providers.

The Met suspected there was a conspiracy among police officers to discredit a cabinet minister. Even though no conspiracy was proven, the IPT said the mere suspicion of one was enough for officers to help themselves to call records – the virtual equivalent of thumbing their way through journalists' contacts books.

We need proper protections in place to ensure that public sector informants acting in the public interest, as these officers were, are shielded from victimisation.

In the mean time, journalists dealing with public sector whistleblowers would be advised to take precautions like using untraceable 'burner' mobile phones. And they should remember their own mobile can be used to triangulate their location.

Don't assume that these sort of spying powers are only used by police against the 'bad guys' – terrorists and serious criminals. The Plebgate case shows that they can be used against law-abiding journalists doing their public duty, and the IPT ruling shows that police can do this with total impunity.

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