How to protect journalistic material from police hands

The tools of any journalist's trade are the computer, notebook and camera. If these essential tools become the subject of interest by the police investigating a criminal offence, then it is vital for journalists, editors and their advisors to have a good working knowledge of the criminal law governing this area of what is politely called "disclosure" but is referred to in the legislation as "access". The main provisions are to be found in the 1984 Police and Criminal Evidence Act.

While a Home Office review of the current regime for disclosure is underway, the present system giving journalistic material special status ("special procedure material") and a separate access regime remains and stands in contrast to the wide-ranging police powers of seizure.

Under Section 8 of PACE, police can seize material in criminal investigations without the need for prior debate or permission. Section 9, which is entitled "Special provisions as to access"

specifies that a police officer can only obtain "access" by making an application to a judge at the Crown Court.

This applies to investigations of nearly all imprisonable criminal offences. If the offence being investigated relates to terrorism, the police can choose to go down a different disclosure route which enables them to get an order without notice and then serve the order on the publisher (newspaper, television station or freelance) requiring disclosure, usually within seven days. Otherwise, the police need to make an application under PACE.

When faced with a police request for disclosure, it is vitally important to stress to the officer that the material is journalistic material. This extends to material given to you by third parties which you possess for journalistic purposes. If it is held by you in confidence, it receives a different designation – "excluded"

rather than "special".

Assert those rights over the material. Explain that judicial permission is required and that they or their lawyers will have to apply to the court and make their arguments. Even on those occasions when there is no objection to the material being handed over, it is usually good practice to adopt a policy of insisting the police force gets an order from the court so that the journalist can maintain to future critics that disclosure was only made after order of the court.

If the application is contested, either in open court or in private, be aware that there are powers to award costs against a party which is unsuccessful.

Judges will often not order costs against a journalist party which has acted reasonably, adopting a principled opposition.

The judge has to balance the public interest in the prevention of crime and the press's freedom to investigate and report stories without undue interference.

To get an order, the police must prove, among other things, that there are reasonable grounds for believing that the material is likely to be of substantial value to the investigation and is likely to be relevant and admissible evidence. The court must also consider whether the police have tried other methods of obtaining the material and whether disclosure of the material is in the public interest.

Much can be achieved provided the journalist and their employer adopt a strategy which is principled and, at the same time, pragmatic so as to ensure that they are not trampled over by police officers with little interest in the rights of journalists.

How to protect journalistic material from police hands When I got the call to go to Lebanon I was in the gym with my daughter.

"Can you make a plane to Beirut at lunchtime?" the newsdesk asked.

I wondered why Beirut. I had completely missed the news that morning: Israeli warplanes had bombed the city's airport.

"Er… I think so. Yes, sure," I said, desperately trying to hide my ignorance.

It was in fact to be the biggest foreign story of the year, and weeks of intensive live coverage were only just beginning. The BBC was in pole position, with our brand new bureau in Beirut, backed up by staff arriving from our other Middle East outposts such as Jerusalem and Cairo, plus people like me racing in from London.

As the war escalated, there would be many memorable moments of television, but as a live event, there was nothing to match the evacuation of thousands of British nationals from Beirut. Naturally, we wanted to show it as it happened.

A Foreign Office minister had talked it up as the biggest evacuation by sea since Dunkirk.

At first, we heard the Royal Navy didn't want any live coverage at all. Apparently they thought Al Qaeda might watch the pictures and send boats out to attack their ships. So, when we gathered at the British embassy, to be escorted down to the harbour to watch the operation unfold, it was more in hope than expectation that we took our satellite truck with us.

Of course, as every reporter knows, you make your own luck in this business, and at the very last minute, word came through that we would be allowed – after all – to carry the event live.

We couldn't help noticing our rivals were there, but without such capability. Sky, for example, only had a videophone, which broke down.

Effectively, we had the story to ourselves – nonstop exclusive coverage of the flight of British passport-holders from a Lebanon rapidly being engulfed by the war between Israel and Hezbollah.

We set up all our equipment just in time to catch the first Royal Navy destroyer coming into port, and the first busloads of British evacuees arriving to get on it. Some were calm, others were crying – relieved to be escaping the danger, but distraught to be abandoning their homes. Coach after coach disgorged the evacuees, and it made the perfect backdrop for our coverage – as they passed our camera position on the dockside, we could grab them for interviews on why they were leaving and what the situation was like in the towns or villages they were fleeing from. To make the tableau even better, the ship's captain was on hand to give us a news conference on the logistics of the mass evacuation.

I had 20 years of foreign reporting experience to draw on, but I'd only been a presenter for three months. Still, there wasn't much time to be nervous. The coverage was non-stop. On News 24, we rolled through the five o'clock show and then straight into the Six o'Clock News on BBC One. If, for a moment, there was no one to interview, I just had to keep talking.

Sometimes, I heard myself saying daft things: I asked one evacuee where they were from.

"Kent," they replied. "Oh," I said, "I'm from Kent too." Still, it was live, after all.

'We effectively had the story to ourselves – non-stop coverage'

NEWSDESK: 020 7 20 ? 06.07.07 324 2385/SUBSCRIPTIONS: 01858 438872 THE KNOWLEDGE Tips, training and tools for the working journalist When warzones are your comfort zone, it's probably time to stop. Of course, I didn't know that when I made the leap from foreign correspondent to presenting More4 News, but so far, this studio caper far out does clashes in Gaza, or the British assault on Basra, for sheer edgeof- your-seat horror. And I'm only partly joking.

In truth, I think it's the revenge of my mother.

As a foreign correspondent, I could happily ignore her advice to wear lipstick, do my hair and iron my clothes. I could wear that great correspondent cover-all: a flak jacket (or in other circumstances, a hejab), put on lipstick in jeeps en route to somewhere, and ignore the hair altogether.

Now, it's nearly an hour in make-up, gloop in the hair, and going through childhood rhymes to work out whether it's brown and green, or blue and green that must never be seen.

The nice thing about warlords in my experience is that they have a habit of resting an AK47 next to their chairs during interviews. It immediately sets parameters, clarifying whether it's worth questioning them over the human rights abuses they're accused of. Having said that, they're normally quite proud of their hard-man status and don't need to be encouraged to tell you how they've achieved it. And they'll serve you tea afterwards. All being well.

In a studio, no one bears arms. But suddenly you can find yourself in a row, directly across the table from a man without an AK47, and it's no holds barred. Cage arguing. Extreme, pointy, and all in less than three minutes. This all takes some getting used to.

How I got involved was by flying from Bangkok to London, buying a suit and doing a screen test. Actually, four screen tests. I had my first introduction to autocue, and the whole process was scary and thrilling at the same time.

Live television is about as enervating, energising and relentlessly interesting as it gets.

I'm still living on my wits and using the same journalistic instincts as I do in the field. I've learnt new skills and have been confronted by unexpected, unpredictable stories and issues.

There's a creative band on set, who admittedly have felt it necessary to tape "Kylie, Do Not Swear" to the front of the camera. But for the moment, it all feels a bit cutting edge, a bit foreign, even. Just the kind of feeling I thought you.

Louis Charalambous is a partner at Simons Muirhead and Burton.

MORE ON THIS STORY : 

Sign up for our free weekly digital magazine, Press Gazette Journalism Weekly, and daily newsletter
To contact Press Gazette with a story call 0207 936 6433
or email pged@pressgazette.co.uk
To advertise, please call 0207 936 6764.