The Metropolitan Police made a series of errors in secret applications to view the phone records of Sun journalists and showed a complete failure to consider issues around the confidentiality of sources, a court heard.
The Investigatory Powers Tribunal yesterday also heard that the Met Police press office provided the mobile telephone numbers of Sun journalists who had called in to check stories and ask for comments to investigating officers. Their phone records and telephone location data were then secretly accessed by police in order to identify confidential sources.
The court will decide whether the Met breached Article 10 of the European Convention on Human Rights which protects freedom of expression and the confidentiality of journalists' sources by viewing the phone records of Sun journalists and the paper's newsdesk telephone.
It heard that in applications to view phone records, the Met wrote the names and titles of three journalists involved wrong and made other mistakes.
On 21 September 2012, The Sun reported on its front page that chief whip Andrew Mitchell had called police officers “fucking plebs” at the gates of Downing Street. This claim was denied by Mitchell, but he lost a libel case in the High Court against the newspaper last year.
Operation Alice into Plebgate was initially launched on 22 September when Detective Superintendent Steve Williams, of the Met’s Directorate of Professional Standards, was told the newspaper had a copy of the police log documenting the incident. The Telegraph published the log on 24 September.
Sun publisher News Group Newspapers was approached by the Met, but refused to disclose the source of the leaked document. According to the claimants’ skeleton argument, Operation Alice was initially closed in October, “though no exact date is given”.
The investigation was reopened in December after Mitchell obtained CCTV footage of the incident, which showed that an off-duty police officer, Keith Wallis, who had claimed to be a witness was not present.
The reopened investigation, supervised by the Independent Police Complaints Commission, began on 17 December. Its purpose was to identify The Sun’s source and establish whether there was any evidence of a conspiracy between Wallis and others. It also sought to discover whether allegations made against Mitchell in the police log were truthful.
On 19 December, following a statement from Downing Street and a Dispatches programme, the decision was made to “seek call data of the three journalists… who had been identified as having had first contact with the MPS following the incident”. These were Sun political editor Tom Newton Dunn, crime reporter Anthony France and political correspondent Craig Woodhouse.
The Sun’s skeleton argument suggested that this strategy was arrived at by Williams, the senior investigating officer in the case. He confirmed this in court yesterday afternoon, appearing via video link from the United States. He also stated that the IPCC “were aware of what we were doing”.
He told the court that the action of obtaining journalistic records was “the right thing to do”, citing how “serious” he felt the case was. He consulted with a colleague working on Operation Elveden (the investigation into payments to public officials made by journalists) before obtaining the records.
The phone records of Newton Dunn and France were applied for by “phones officer” DS Laura Nelson. The application named the former journalist as “Newton-Dodd” and said, in a box explaining why the application had been made, that he had “contacted the MPS press office at 10am on 20 September asking for information about the incident”. This skeleton argument said: “This is wrong.” France, in fact, made this call.
The approval for access to Newton Dunn’s phone records and GPRS data between 19 and 26 September 2012 led to the identification of his source, PC James Glanville.
The application for France’s data incorrectly described him as the newspaper’s political editor and said he had contacted PC John Tully of the Police Federation. In fact, Newton Dunn is the political editor, and had himself, along with Woodhouse, contacted Tully.
The application for Woodhouse’s data was made on 16 January 2013. The period sought was a day longer than Newton Dunn’s and France’s, stretching between 18 September (the day before the Plebgate incident) to 26 September. According to The Sun skeleton, this longer application was made "because there was a similar incident involving [Mitchell] the previous evening and if there were any police contacts with the press on this date or shortly afterwards it may indicate a conspiracy".
The application was approved on 14 March. The skeleton argument said: "No explanation is given in the [Met's] evidence as to why this application, made on 14 January, was not considered for two months. The grounds for application do not appear to have been revised to take account of the progress of [Operation Alice] since 14 January."
According to the skeleton argument, the Met Police press office provided the mobile phone numbers of France and Woodhouse.
Sun lawyer Gavin Millar said in his statement that the applications made “no reference… to the journalist’s right to protect his source/s, still less to the need for an overriding public interest”.
The fourth call data grab was on The Sun newsdesk number. The application was made after The Sun submitted its defence in the libel case brought by Mitchell, in which it relied on a call from an anonymous woman between 8 and 8.45am on 20 September 2012 reporting the incident. The Met applied for data relating to the period between 7am and 9am on that day.
Millar argued that the Met should have asked News Group Newspapers for the information they sought first. If this failed, he said, they should have made an application under the Police and Criminal Evidence Act 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 – instead of using "covert powers under RIPA".
The applications for data were approved by DSI Paul Hudson, who was in the Directorate of Professional Standards. He was a “designated person” who could approve RIPA applications. He told the court today that he had previously not approved requests for journalists’ data, but has done since, citing recent Operation Elveden investigations.
Millar referred to several legal principles in court, including those established by Secretary of State for Defence versus The Guardian and Goodwin versus United Kingdom. In 1984 the House of Lords upheld an order forcing The Guardian to hand over documents which identified its source Sarah Tisdall. In the Bill Goodwin case of 1996 the European Court of Human Rights upheld the right of a journalist to protect the confidentiality of a source who had provided details from a confidential company document.
Millar's written submission said: “The complainants contend that all four of the interferances complained of were in violation of their ECHR Article 10 right to protect their sources because the relevant decisions were taken by police officers.
“There was no prior judicial or independent assessment of whether the source protection right could and should by overridden on the facts, applying the Goodwin reasoning. In short, a measure was used which circumvented the Goodwin protections.”
The argument said that Hudson’s authorisation decisions were “a long, long way removed from the sort of informed and critical analysis by a judge envisaged in our law since the Guardian case. This point is made not to criticise [Hudson] but to identify why decisions cannot and should not be made by police officers filling in boxes on forms.” It added: “There was a complete failure to appreciate, articulate and apply the Goodwin principles.”
Millar in court yesterday also questioned why the Met had sought to obtain phone records of the journalists over week-long periods. The skeleton said: “The ease and enthusiasm with which [Operation Alice] obtained such large quantities of the journalists’ communications data in December 2012 is one of the most alarming aspects of this case.”
In its skeleton defence, the Met said that the “call data was obtained in accordance with the law (namely RIPA) and it was necessary for (and was proportionate to ) the investigation of a suspected criminal offence.”
It said: “Errors were made in the course of obtaining the call data. Those errors should not have been made and they cannot be justified. But the errors do not invalidate or render unlawful the obtaining of the call data: that data was lawfully obtained pursuant to the authorisations.”
The Met also said that the applications “were necessary as part of an investigation into what was, potentially, an extremely serious criminal offence – the unseating of the Government Chief Whip by corrupt police officers, responsible for the security of senior members of the Government, conspiring to provide an untruthful account as to his conduct”.
It said: “The incident provoked considerable public unease at the alleged actions of the officers concerned… misconduct in a public office is a serious offence and in the context of the incident in Downing Street raised questions as to the conduct of armed officers working in sensitive posts.”
The Met said: “In respect of all four applications they were in order to identify whether the information was disclosed by a police officer. All other reasonable and practicable lines of enquiry had been exhausted. The necessity and proportionality of the interference was expressly considered.”