On 20 October 2014 The Times had an alarming front page story with the headline “Police use loophole to hack phones and email” [£]. It was said that the police were “hacking” into hundreds of people’s voicemails, text messages and emails, using a “loophole” in surveillance laws. The complaint was that, instead of obtaining a warrant from the Home Secretary, the police were “getting round the rules” – by obtaining a production order from a Judge.
The “loophole” story was picked up and repeated by a number of other newspapers, including the Daily Telegraph and the Daily Mirror. The latter newspaper – which last month admitted to the High Court that its journalists had hacked the telephones of a number of individuals – described the police practice as “phone hacking”.
But there was, of course, no “hacking” at all – the police were lawfully obtaining voicemails, texts and emails under court orders. And, more importantly, there was no “loophole”. What happened was that rather than using the (much criticised) procedure of obtaining a warrant from a Government Minister, the police were putting their applications before an independent judge.
These inconvenient facts did not prevent the Times from thundering, in an editorial entitled “Cease and Desist” [£], that “Police forces across Britain are misusing a loophole in privacy laws”. The Home Secretary was, apparently, now preferred as a warrant granting authority to an independent judge.
According to the editorial:
“Unlike warrants for eavesdropping on live conversations, so-called production orders need only the approval of a judge”
What, it might be asked, is wrong with that? The Times appears to believe that the Home Secretary applies a more rigorous standard than the judiciary:
“The home secretary must be satisfied that the intercept is needed for national security or to combat organised crime, and must sign a warrant”
Unfortunately, this is wrong. Under section 5(3) of the Regulation of Investigatory Powers Act 2000 (“RIPA”), the Home Secretary may grant a warrant if satisfied that it is necessary
(a) in the interests of national security;
(b) for the purpose of preventing or detecting serious crime;
(c) for the purpose of safeguarding the economic well-being of the United Kingdom.
There is no need for there to be any organised crime – and, indeed, no need for crime at all.
In contrast (as the Times itself noted in its front page article), before making a production order, a Judge needs to be satisfied that there are reasonable grounds for believing that a serious criminal offence has been committed, and that the material is likely to be of substantial value to the investigation and is likely to be relevant evidence and disclosure is in the public interest (see Police and Criminal Evidence Act 1984, Schedule 1). What the Times did not say was that these are stricter conditions than those imposed on the Home Secretary by RIPA.
The Times’ complaint about the police use of the “production order procedure” is particularly odd because there has, in recent weeks, been a powerful campaign, led by the Press Gazette, entitled “Save our Sources” which has, quite properly, demanded that, if the police wanted to obtain journalists phone records and could not obtain them from the news organisation
“they should argue the case before a judge in the procedure set out in the Police and Criminal Evidence Act”.
In other words, the campaign is arguing that, in order to provide proper protection for journalists the police should use the very “loophole” which the Times has condemned.
The use of RIPA to obtain journalistic records is something which has, rightly, been widely condemned and may soon be the subject of additional safeguards. Those safeguards should include independent judicial scrutiny. This is not a “loophole” but a proper way of preserving and defending investigative journalism.
Dr Evan Harris is the Associate Director of Hacked Off