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The controversy

In late 2014 concerns emerged that the Metropolitan Police and Kent Police, in the course of their inquiries, had acquired journalists’ communications data. The Press Gazette and the National Union of Journalists launched a ‘Save our Sources’ campaign setting out their concerns. The Interception of Communications Commissioner mounted an investigation. This came in the wake of a ruling by the European Court of Justice that identified, amongst other things, the lack of any exception in data communications law for communications that are subject to an obligation of professional secrecy.

Police access to such information is governed by the Regulation of Investigatory Powers 2000 (RIPA), while the principle of journalistic privilege is enshrined in the Police and Criminal Evidence Act 1984 (PACE). The recent controversies have been about the police using powers under RIPA rather than under PACE. 

Calls for reform

In February 2015, the Commissioner published his report into the use by police of RIPA to access journalists’ communication records. His inquiry found that some 82 journalists had had their communications data obtained by police in three years. The Commissioner concluded that police forces “did not give due consideration to freedom of speech” and current Home Office guidelines did not sufficiently protect journalistic sources. He also recommended that police forces should be required to seek a judge’s permission when seeking to discover a journalist’s confidential source.

Under s71 of RIPA, the Home Secretary must issue codes of practice detailing how the Act is to be implemented. Following the Commissioner’s report, the Government consulted publicly on the additional consideration that must be given to communications data requests relating to those in professions which handle confidential information (such as journalists). A revised code of practice was laid before Parliament in March 2015. The Serious Crime Act 2015 amended RIPA to ensure that a code in relation to the prevention or detection of “serious crime” must include provision to protect the public interest in the confidentiality of journalistic sources.

In a substantial report published in June 2015, the Independent Reviewer of Terrorism Legislation called for updated legislation on surveillance to include additional protection for “privileged or confidential material”.

What next?

The Investigatory Powers Bill, currently before Parliament, would require a public authority to obtain the approval of a “Judicial Commissioner” before obtaining communications data which would identify a journalist’s source, unless there were an imminent threat to life.

Further protection for journalists is afforded by the European Convention on Human Rights and the Contempt of Court Act 1981. The “Bill of Rights” which was promised by the newly elected Conservative Government in 2015 may also include explicit protection.

This briefing paper deals with the law in England and Wales.

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