Government must toughen legislative protection for journalists' sources after Sun Plebgate legal judgment

The Times today urged the Government to strengthen legal protection for journalists' sources after the Investigatory Powers Tribunal yesterday said the current law was inadequate.

The tribunal yesterday published its judgment after a challenge brought by The Sun after the Met Police accessed the phone records of three Sun journalists, and the newsdesk, in order to hunt down lawful police sources.

The ruling was a mixed one for The Sun. On the one hand, the judges ruled that the phone records grabs breached European law because the rules police followed did not take into account the Article 10 right to freedom of expression which protects confidential sources.

But on the other, the judges said they believed three out of the four records grabs were justified.

Even though The Sun's police sources did not break the law, and the CPS ruled that they acted in the public interest, the IPT said it was enough that the police suspected serious criminality.

The Met was investigating claims that there was a criminal conspiracy to undermine government minister Andrew Mitchell by police officers leaking misleading information to the press about the 2012 Plebgate incident.

Even though no such conspiracy appears to have existed, the judges said the Met Police were justified in viewing journalists' call records, and GPRS phone location data, because they suspected one.

The tribunal ruled that one application was unlawful, but that appears to have been largely because the police already had the information by other means (which included spying on other journalists' call records).

The Times said today: "The draft investigatory powers bill, due to go before Parliament next year, is supposed to provide some check on the police’s power to snoop by allowing judges to review their decisions.

"The proposed provisions fail to give enough protection in three ways. First, police must be required to seek judges’ approval from the outset; there is little value in a review mechanism on police decisions already taken to mitigate damage already done. Second, judges must follow strongly worded statute defending the anonymity of sources except in the most extreme cases. Third, journalists must be told when judicial approval of snooping is being sought so that they can make the case for their sources’ anonymity."

This is sound advice.

The IPT judgment was encouraging in some ways, but also exasperating because the three judges are the only people I have come across (outside the police) who think it was a good thing that the police used extremely intrusive spying powers to track down and punish officers who many would see as whistleblowers.

The police have lost a vital safety valve. It would take a foolhardy officer now to contact a journalist with a story which cast his force in a negative light. Certainly, the next time a Cabinet Minister abuses a police officer voters are likely to be kept in ignorance.

It is now for the politicians to take action to ensure that journalists' sources are protected in the legislation. The stop-gap Save Our Sources law passed in March, providing judicial oversight of police requests to view telecoms information in order to idenfity journalists' sources, was a good interim measure but does not go far enough.

Any story worth publishing tends to come from a source who has something to lose by speaking out.

Police forces themselves have as much to lose as everyone else by shutting down unauthorised contact.

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