The press have come together to present a united front following revelations that police have been accessing journalists’ phone records under provisions in the Regulation of Investigatory Powers Act (RIPA). The unanimous condemnation is in stark contrast to the censorial press coverage of the phone hacking scandal.
Dominic Ponsford from the industry trade journal, The Press Gazette, first reported the story on 2 September followed a few hours later by Lisa O’ Carroll at The Guardian. She observed on Twitter: “This [is] TOTALLY outrageous. Police seized journalists’ phone records in order to out Plebgate whistleblower”
The Metropolitan Police Service had been required to publish a detailed account of its investigation – known as Operation Alice – into the “Plebgate” incident. (Confidential police logs had been leaked to The Sun, detailing a late-night row between the then Government Chief Whip, Andrew Mitchell, and police officers outside Number 10; relevant sections of report 5.65 – 5.90.) In that account they set out, probably without realising the media storm it would unleash, that – seemingly as a matter of routine – the telecom records of the Sun’s political editor Tom Newton Dunn were obtained under RIPA.
The relevant RIPA provision (section 23) does not require “judicial approval” when information is being sought by the police. If, on the other hand, the police want to a journalist’s desk or papers, under the Police and Criminal Evidence Act (PACE) they must convince a judge that the warrant is justified. Under RIPA the police can authorize themselves through an Inspector or Superintendent.
The outrage over this news continued in the Press – The Sun responded on the same day, announcing plans to write to the Interception of Communications Commissioner to find out how many times police have required phone companies to hand over journalists’ phone data.
The Sun’s complaint coincided with confirmation that the phone records of the news editor of the Mail on Sunday, and one of its freelance journalists, had also been obtained by Kent Police when they investigated events surrounding Chris Huhne’s speeding fraud. (In fact it related to an allegation of perverting the course of justice against a judge, later proven on the basis of the phone records.)
This part of RIPA contravenes the basic principle of journalistic source protection enshrined in law by section 10 of the Contempt of Court Act 1981. The special protection of journalistic material was confirmed by PACE in 1984. Despite exceptions relating to national security or threats to public order, it could hardly be argued that access to journalistic phone records by police could be regarded as routinely justifiable. Compared to PACE, the benchmark under RIPA has been considerably lowered. What is subject to judicial authorisation under one Act has since been devolved to the authorisation of a middle-ranking police officer.
Since 2 September Hacked Off has counted around 175 articles written about police ‘abuse’ of RIPA to access data from journalists – relating to calls made and received, but not their content – under a law without adequate safeguards. This is wrong, but there is an irony here which few people seem to have noticed.
Let’s go back to the phone hacking scandal for a moment. When some journalists were going much further than the police, unlawfully obtaining phone records by blagging phone company employees, and then committing criminal offences under RIPA to access the content of the voicemails of several thousand individuals, most newspapers simply refused to write about it.
We now know that as well as celebrities, politicians and their inner circles, those targeted included families of murder victims and dead soldiers and individuals in witness protection schemes. Journalists’ phones were also hacked as a matter of course to steal their stories or discover their sources!
Only The Guardian and Independent titles wrote about phone hacking before the news emerged on 4 July 2011 that the mobile phone of the missing teenager Milly Dowler had been hacked.
Employees of at least two large news organisations abused RIPA criminally to serve their own purposes. But now that RIPA has been shown to have been used lawfully (albeit with inadequate safeguards) against journalists, the response is one of unanimous and indignation and outrage – precisely the same indignation and outrage felt by the victims of phone hacking and the general public at phone hacking. The press seems blissfully unaware of the double standards being applied.