The Attorney General would consider whether a prosecution was in the public interest before charges in the phone hacking leak investigation were brought under the Official Secrets Act, his office said today.
The Metropolitan Police was thought to be planning to use the Official Secrets Act to obtain an order that The Guardian should reveal its confidential sources for stories relating to the phone hacking scandal in a bid to identify potential police leaks.
But the consent of the Attorney General Dominic Grieve QC would be needed before any charges were brought under section five of the Official Secrets Act 1989, his office confirmed today.
A spokesman for the Attorney General’s office said: “It is a matter for the police to decide how best to carry out any investigation.
“If the police provide evidence that would support a charge under section five of the Official Secrets Act the Attorney General’s consent would be required.
“If that stage is reached, the Attorney General, with the DPP (director of public prosecutions), will consider whether there is sufficient evidence and whether the public interest is in favour of bringing a prosecution.”
The force has applied for a production order against the Guardian and one of its reporters “in order to seek evidence of offences connected to potential breaches relating to Misconduct in Public Office and the Official Secrets Act”.
A senior investigating officer applied for the production order under the Police and Criminal Evidence Act (Pace), citing potential breaches of the Official Secrets Act, the force said.
Police and Criminal Evidence Act
The application is being made under the procedure set out in Schedule 1 to Pace. This covers applications for what is described in sections 9 and 11 of the Act as “excluded material”, and includes “journalistic material”, which is defined in section 11 as material “which a person holds in confidence and which consists (i) of documents; or (ii) of records other than documents”.
Section 13 of the Act, covering journalistic material, defines it as “material acquired or created for the purposes of journalism” and says it is only journalistic material for the Act’s purposes if it is in the possession of someone who acquired or created it for the purposes of journalism.
Section 13 (3) states: “A person who receives material from someone who intends that the recipient shall use it for the purposes of journalism is to be taken to have acquired it for those purposes.”
Section 14 states that journalistic material which does not fall within the “excluded material” definition does qualify as “special procedure material”, which section 9 states can be obtained only through an application under the procedure detailed in Schedule 1 to the Act.
The schedule specifies that an application has to be made to a circuit judge. A judge facing an application for a disclosure order has to be satisfied that certain conditions have been fulfilled.
There must be reasonable grounds for believing both that an indictable offence has been committed and that that there is material which consists of or includes special procedure material – and does not also include excluded material – on premises specified in the application.
The judge must also be satisfied that the material, whether alone or together with other material, is likely to be of substantial value to the investigation.
In addition, the judge must be satisfied that that the material is likely to be relevant evidence, and that other methods of obtaining it have either been tried without success or have not been tried because they seemed bound to fail.
Finally, the judge has to be satisfied that disclosure is in the public interest having regard to both the likely benefit to the investigation of obtaining the material, and the circumstances under which the person in possession of the material holds it.
Human Rights Act
But another element the court will have to take into account is the guarantee of freedom of expression given under Article 10 of the European Convention on Human Rights, written into English law by the Human Rights Act 1998.
The European Court of Human Rights at Strasbourg has frequently stressed the importance of Article 10 in ensuring that journalists are able to protect the identities of confidential sources.
In September last year the Court’s Grand Chamber warned that national authorities were under an obligation to ensure that the right of journalists and publishers to protect their confidential sources was protected by legal safeguards which match the importance of the principle.
It said in Sanoma Uitgevers BV v the Netherlands (application no 38224/03): “The Court has always subjected the safeguards for respect of freedom of expression in cases under Article 10 of the Convention to special scrutiny.
“Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society, an interference cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest.”
It added: “Given the vital importance to press freedom of the protection of journalistic sources and of information that could lead to their identification, any interference with the right to protection of such sources must be attended with legal procedural safeguards commensurate with the importance of the principle at stake.
“The Court notes that orders to disclose sources potentially have a detrimental impact, not only on the source, whose identity may be revealed, but also on the newspaper or other publication against which the order is directed, whose reputation may be negatively affected in the eyes of future potential sources by the disclosure, and on members of the public, who have an interest in receiving information imparted through anonymous sources.”
In November 2008, Sally Murrer, a reporter with the with the Milton Keynes Citizen, walked free from court after a judge held that police breached her right to protect her sources by bugging conversations she had in a car with a former detective sergeant.
Both Murrer and former Det Sgt Mark Kearney were charged in connection with leaks of information.
But Judge Richard Southwell said any evidence gathered by police using the bug should be excluded because it breached their rights to freedom of expression as well as Ms Murrer’s right to protect the identity of her sources under Article 10.
Murrer’s solicitor, Louis Charalambous, of law firm Simons Muirhead and Burton, said at that time: “Sally Murrer should never have been prosecuted.
“Journalists talk to police officers every day about cases, which is precisely how crime stories in newspapers get written.
“Had the case against Sally gone ahead, it would have signalled a lurch towards a police state, a situation which is abhorrent in the minds of right thinking people.
“The police officers who mounted this operation should be called to account for this fundamental attack on the freedom of our country’s press.”