Police forces have unlawfully accessed phone records to find journalists’ sources since March law change

Two police forces acquired records to find sources despite Save Our Sources stop-gap law being in place
Information contained in IOCCO's half-year report
Prime Minister described breaches as "serious error"
Journalists concerned have not been informed – but will be if IOCCO finds "wilful or reckless failure" on part of police forces

Two police forces have unlawfully accessed communications data to find journalistic sources without judicial approval since the law was changed to prevent this.

The journalists concerned have not been informed, but will be if "wilful or reckless failure" is uncovered by the Interception of Communications Commissioner's Office (IOCCO).

The information, contained in the IOCCO half-year report, has been presented to the Prime Minister, who has described the breaches as a "serious error".

Limited details have been provided in the IOCCO report. But it did reveal that:

In the first case, a police force acquired "the communications data for a journalist and a known associate who was also their source"

And in the second, no "data was acquired relating to the journalists who published subsequently an article which allegedly relied on leaked information from the police employee".

Both police telecoms grabs took place after a stop-gap law was passed in March to prevent public authorities from accessing phone records to identify journalistic sources without first obtaining judicial approval.

Save Our Sources campaign

This law-change was approved by Parliament after Press Gazette's six-month-long Save Our Sources campaign.

IOCCO recommended the change after launching an inquiry into police use of the Regulation of Investigatory Powers Act to find journalistic sources. This found that the records of 82 journalists had been obtained in order to find their sources over a three-year period. Some 19 forces were found to have used RIPA to obtain journalistic sources over this period, but they were not identified.

After gathering widespread support – from journalists, media lawyers, press freedom campaigners and politicans – the stop-gap law was passed in March. New, primary legislation is due to be passed in the new Parliament, which began sitting in May.

Presenting the half-year report to Parliament, Prime Minister David Cameron said in a written statement: “The Commissioner finds that two police forces have acquired communications data to identify the interactions between journalists and their sources in two investigations without obtaining judicial approval, in breach of the Code of Practice introduced in March this year.

“This was a serious error. The Commissioner’s investigation into these cases is not yet complete. I look forward to receiving more information about them in the next Report.”

The report

The half-year IOCCO report, which contains a section devoted to "Applications for communications data to determine the source of journalistic information", is critical of the wording of the stop-gap legislation, and said that it had likely caused confusion among police forces.

The commissioner, Sir Anthony May, said in his report that a “lack of stakeholder engagement due to the speed at which the new legislation was implemented has resulted in a lack of clarity about the provisions”.

He added: “I have commented previously that my office is concerned that a number of public authorities seem to be unaware of the changes in law and practice.

“I have also been very disappointed to learn that a number of Senior Responsible Officers (SROs) and SPoCs [Single Points of Contact] have admitted during inspections to having not read our journalist inquiry report.”

He said: “Of most concern, but perhaps not of surprise bearing in mind the previous points, is that my inspectors have identified that since 25th March 2015, when the revised code came into force, two police forces have acquired communications data to identify the interactions between journalists and their sources in two investigations without obtaining judicial approval.

“These breaches were identified during our inspections. In these cases the normal RIPA process was used and the data was approved by a designated person.”

The cases

The first case, he said, concerned a police force acquiring “the communications data for a journalist and a known associate who was also their source”.

He said: “The crime under investigation related to attempting to pervert the course of justice in the midst of an ongoing criminal trial. The trial judge was aware of the police force initiating a criminal investigation into the activities of the journalist.”

In the second case, a force acquired “communications data relating to a suspected journalistic source working within the police force and a former employee of the force suspected to be acting as an intermediary”.

The report said: “No data was acquired relating to the journalist who published subsequently an article which allegedly relied on leaked information from the police employee.

“Criminal offences under the Data Protection Act and Computer Misuse Act relating to the passing of information acquired and retained by the police in a crime investigation were under investigation.”

May said: “These cases were only very recently identified by my inspectors and I am waiting for the full details to enable me to establish whether any individual has been adversely affected by any wilful or reckless failure by any person within a public authority.

“If I establish that fact I will, in line with paragraph 8.3 of the code, inform the affected individuals of the existence of the Investigatory Powers Tribunal (IPT) and its role to enable them to engage the IPT effectively.

“In both of these cases my office has also required that the police forces inform the prosecutor of the fact that communications data has been acquired in contravention of the processes prescribed by Parliament and, of the need to review their obligations under the laws governing the disclosure of materials to the defendant or their counsel if proceedings ensue.”

The report said: “The actions in these cases are serious contraventions of the code, which in turn reflected the will of Parliament, in seeking to protect Article 10 of the European Convention on Human Rights (“the Convention”) particularly the protection of journalists, their sources and persons who may act as intermediaries.

“I think it worth revisiting an observation we highlighted our journalist inquiry report regarding the zero tolerance culture that seemed to be operating within police forces.”

The commissioner re-emphasised that chief officers should consider article 10 of the European Convention on Human Rights “prior to embarking on investigations to identify who within an organisation may have leaked information to the media”.

He said: “Police forces must ensure they comply fully with the revisions in the code whenever they are seeking communications data to determine journalistic sources, this includes when public authorities are seeking to confirm or corroborate other evidence of the identity of a journalistic source. Such applications must have judicial approval.”

'Considerable pressure to process requests'

The report also noted that Senior Responsible Officers and Single Points of Contact have been rejecting some applications to identify journalistic sources since the new provision was introduced.

It said: “In some cases investigative teams have pushed back and put the SPoCs under considerable pressure to process such requests.

“These cases generally relate to circumstances where the source was already known to the police and therefore the investigative teams felt strongly that the judicial provisions in the code did not apply.

“I have already outlined the unfortunate lack of clarity on this point and the fact that in my opinion the policy intention is that the provision includes communications data applications which seek to determine journalistic sources where the source is already known to the police and they are seeking to confirm or corroborate that fact.”

The report also noted that in May the Metropolitan Police successfully applied for journalistic phone records as part of its Operation Elveden investigation.