A judge has granted the Metropolitan Police access to a journalist's phone records without their knowledge since the Save Our Sources stop-gap law was passed, a court heard yesterday. (Picture: Shutterstock)
The revelation emerged before the Investigatory Powers Tribunal yesterday as part of a hearing brought by Sun journalists who had their phone records secretly accessed by the Met as part of its Operation Alice investigation into Plebgate.
The IPT has been told that the Met accessed seven days' worth of phone records and GPRS data for political editor Tom Newton Dunn and crime reporter Anthony France in December 2012. It also accessed eight days' worth of data for political correspondent Craig Woodhouse and two hours from The Sun's newsdesk.
Following the initial revelation last September that the Met had secretly accessed the phone records of The Sun in order to find and punish lawful police sources, Press Gazette launched the Save Our Sources campaign. And in March, Parliament changed the law, requiring police to obtain outside judicial approval for such requests.
In what appeared to be the first application since the law-change, in May, Mr Justice Sweeney allowed the Met Police to access the phone records of two journalists investigated under the Operation Elveden probe into payments to public officials. He ruled that the case should be heard in public and that the journalists should be informed and able to make submissions.
The latest revelation of a further instance in which the Met Police has secretly accessed journalists' call records – with the approval of a judge and knowledge of the communications service provider, but without notice to the target – underlines widespread concerns which have been raised warning that the Save Our Sources law does not go far enough.
The National Union of Journalists, News Media Association and others believe journalists must be notified when their call records are sought so they can argue the case in court for protection of sources.
Last week, the Interception of Communications Commissioner revealed that two forces have unlawfully accessed journalists' call records without judicial approval since the March law-change banning this practice.
RIPA, PACE or Norwich Pharmacal
On Monday, the first day of the two-day IPT hearing, Gavin Millar QC, for the journalists, said that his clients' rights had been "unquestionably violated".
Jeremy Johnson QC, for the Met, said that the journalists' data had been obtained in "accordance" with the Regulation of Investigatory Powers Act and that the claims should be dismissed.
Rather than using "covert powers under RIPA" to obtain the records, Millar told the court that the Met should have either asked News Group Newspapers for some of the information, or applied for the records through the courts. He said they could have either done this under the Police and Criminal Evidence Act (PACE) or via the Norwich Pharmacal jurisdiction – which allows employers to ask the High Court for source identification where an employee is believed to have breached confidentiality.
Johnson, though, said that RIPA was "applicable", necessary and proportional. He said that using PACE, which enables forces to apply for more material than RIPA, could have been "far more instructive than simply obtaining call data". He also argued that the journalist was better off not knowing they were giving away information to give away their source – "because then there can be no criticism of the journalist".
Johnson said that RIPA was more "appropriate" than PACE and that the Norwich Pharmacal jurisdiction is "even less of an answer".
He also told the IPT that even if the Met had used PACE, it could have applied for the data direct from the communications service provider without the knowledge of News Group Newspapers.
Since March, police forces have been required to obtain judicial approval, through the PACE mechanism, to obtain phone records to find journalistic sources.
In May, Mr Justice Sweeney heard an application to access to two journalists' records and he ordered that it should be heard in public.
However, Johnson revealed yesterday that since March a judge has granted the Met access to phone records without the knowledge of the journalist or news organisation.
Johnson acknowleged the Elveden case, and told the IPT: "There has been a subsequent application where the judge did not require the journalist to be put on notice."
If the IPT panel of five rules in The Sun journalists' favour, compensation payouts could be awarded. And Mr Justice Burton, president of the IPT, said yesterday that compensation rulings on phone-hacking "may be of some relevance".
Earlier this year, Mr Justice Mann awarded £1.2m to eight victims of Mirror newspaper phone-hacking. The largest payout went to actress Sadie Frost, who was awarded £260,250. Mirror Group Newspapers is appealing the decision.
Defending the police use of RIPA to find journalistic sources, Johnson told the court that the police were investigating a "very, very serious" crime – the alleged conspiracy to unseat a cabinet minister.
On Monday, the court was told about errors made in the police's RIPA applications – including naming political editor Tom Newton Dunn as 'Newton-Dodd' and giving crime reporter Anthony France the political editor job title.
Johnson told the court: "I accept there were errors. They should not have been made. They do not show the level of care [expected]. Lessons can and should be learnt from this." But he said these mistakes were not "material".
Johnson accepted that police interfered with human rights, which protect people's private lives and rights to freedom of expression, but he defended the approach taken.
"It was simply using telephone data in a targeted framework in order to identify a source," he told the tribunal. "Over a relatively short period of time, seven days."
He added: "It was a very thorough, very professional investigation."
The hearing has now concluded and the parties are awaiting an IPT decision.