The Investigatory Powers Tribunal has found that Police Scotland breached a journalist’s Article 10 rights when it sought to identify the Sunday Mail’s sources for an investigation into a failed murder inquiry.
And it has issued a ruling which underlines the fact that UK law enforcement agencies are banned from taking actions to identify journalistic sources without judicial oversight.
The ruling sets a precedent because it says police cannot launch molehunts for journalistic sources (previously protections only appeared to apply to journalists themselves).
The case sheds fresh light on how police use of covert powers against journalistic sources changed in 2015 when the Press Gazette-backed Save Our Sources law was passed.
Following a Press Gazette campaign, in March 2015 a new Code of Practice was passed by Parliament which required police to obtain judicial approval for data requests made in relation to journalistic sources. Press Gazette had revealed that prior to that, UK police had widely abused their powers to obtain call data in order to find and punish journalistic sources who were acting in the public interest.
The Sunday Mail case stems from Jim Wilson’s investigation into a failed 2005 murder inquiry. Wilson is now editor of The Sunday Post.
In 2015, the Sunday Mail published three articles alleging failings in the Strathclyde Police (now part of Police Scotland) murder investigation and revealing a new suspect had been identified.
In response, Police Scotland Counter Corruption Unit launched a leak inquiry – even though there was no suggestion either that money had changed hands for the article, or that a serving police officer was the source.
Applications were made under the Regulation of Investigatory Powers Act 2000 for call records in respect of a retired police officer and others.
The Investigatory Powers Tribunal ruled on 14 December 2022 that these applications were contrary to the 2015 Save Our Sources law.
An application was also made in respect of Jim Wilson’s mobile phone number which was withdrawn after the officer making it was reminded of the March 2015 change to the Code of Practice.
The officer making the request was told: “Due to new legislation regarding the investigation of journalists, Telecoms billing for journalist (named removed for the purposes of this report) will require a warrant”
Wilson complained to the Investigatory Powers Tribunal that Police Scotland obtained his phone number illegally and contravened his rights under Article 10 of the Human Rights Act with its use of surveillance powers to target his sources. The force sought both call records and email data for the retired officer alleged to be Wilson’s source.
The tribunal ruled that Wilson’s mobile number was probably obtained legally by Strathclyde Police but the force has now deleted his number from its intelligence database.
However, the Tribunal ruled that Wilson’s Article 10 rights were breached by Police Scotland’s illegal hunt for his sources and it underlined the protection such sources have.
It said: “The overarching policy which underlies the protection of a journalist from being required to reveal his sources is the need to preserve his access to sources in the public interest. It recognises the need to prevent sources from being deterred from cooperation. That information about individuals was recovered with a view, it is now admitted, to discovering Mr Wilson’s sources, therefore it represents an interference with his Article 10 rights as a journalist.
“His name and status as a journalist were expressly invoked in both the authorised applications. There is a real risk that conduct of that sort will have a chilling effect on his ability to obtain and disseminate information in the public interest. It is a matter of concession that Police Scotland acted otherwise than in accordance with the law when they sought to discover Mr Wilson’s sources. We therefore find that Police Scotland acted in a manner incompatible with Mr Wilson’s rights under Article 10.”
Wilson received an apology from Police Scotland in the final hours of the two-day IPT hearing, almost five years after his initial complaint.
Wilson said: “Police Scotland made a bad decision in 2015 when it launched an inquiry into the sources of our story instead of the information it contained and it has continued to make bad decisions in the years since.
“Its failure to admit or take responsibility for unlawful action against journalists until being forced to do so more than seven years later seems regrettable and concerning.”
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