Abstract
What do Chris Huhne's political downfall, “plebgate” and The News of the World phone-hacking scandal have in common? One answer is that they are all examples of the police using anti-terror laws to go through journalists' phone records and identify their sources. In other words, examples of the recent police “hacking” scandal.
Over the last few weeks, press and politicians have been lining up to criticise the police for obtaining data from telecom providers. The police's actions have been a “misuse of power'” (The Guardian), constitute “hacking” (The Sunday Times), “spying on journalists” (The Daily Telegraph) and are “extremely inappropriate” (Simon Hughes MP). Little to nothing has been said to counter this narrative and the perception is that the police have acted in a shady and possibly illegal way, and, in any event, against the spirit of the legislation.
It is correct that generally the courts go to substantial lengths to protect the confidentiality of journalistic sources. The argument for this is that there is a public interest in protecting the identity of sources as, without confidentiality guaranteed, whistleblowers won't come forward and public interest stories will not reach the light of day. Freedom of expression is at stake, and accordingly police hacking must be stopped.
Were this the case, press comments would be understandable. Looking at the position more closely is, however, revealing. For instance, the reference to “hacking” is in fact a reference to the police obtaining communication data using a clear and specific statutory power set out in section 22 of the Regulation of Investigatory Powers Act 2000 (RIPA). Further, both in theory and in practice, the police seem to be using this power to investigate crime or serious wrongdoing. There is little evidence of innocent sources or whistleblowers being outed in a way that inappropriately jeopardises freedom of expression or is damaging to the public interest.
Instead, phone data obtained by the police has been used to prosecute industrial-scale illegal phone-hacking, corrupt public officials for accepting bribes from journalists and, in the “plebgate” scandal, a police officer who was shown to have pretended to be a member of the public and lied about witnessing the incident; all matters of serious public concern. In other words, the police have used legitimate powers to investigate and uncover serious criminal behaviour, even amongst their own.
Politicians are now promising changes to RIPA to ensure that the police cannot in future obtain communication data relating to journalists without making an application to court for judicial authority first. Details are currently sparse, but what is clear is that the police will no longer be able to obtain evidence simply by an officer internally authorising it based on his or her decision that the RIPA criteria are met.
This change will have a profound effect on police investigations involving journalists and risks allowing crime to go undetected. As anyone who has been involved in court applications knows, they take a lot of time, cost a lot and usually involve taking a substantial risk of public censure should they fail. Police deciding whether to investigate wrongdoing or criminal behaviour involving journalists will often need phone records but, facing these consequences, will be considerably less likely to investigate. By contrast, police will continue to be able to investigate phone records of citizen journalists with internal authorisation. Professional journalists are, in other words, afforded special treatment, based on a little challenged assumption that freedom of expression is at risk if police can access their phone records without involvement of a judge.
If the need to apply to a judge had been required to investigate journalistic crime, would the News of the World have been exposed? Would the numerous corrupt public officials who have been prosecuted recently all been found out? It is difficult to know for sure, but in some cases I suspect the answer would be “No”.
Few would say RIPA is a perfect piece of statute, and no doubt it can be improved to protect against misuse. But obliging the police to apply to court to investigate criminal behaviour by journalists is counter-productive and not in the public interest.
Compare for one moment the above police “hacking scandal” with the well-known News of the World phone-hacking scandal. In the police version, after little to no public debate, we seem to be on track to change the law in a way which restricts the police's ability to investigate criminal behaviour involving journalists. By contrast, after a year-long public inquiry and cross-party political consensus, the outcome of the News of the World scandal is that the press almost universally ignore the royal charter on press regulation, and remain as unaccountable to the public as ever. So on one hand the measures needed to improve press accountability have been happily ignored, and on the other hand the police's ability to investigate journalist crime is being restricted.
One of the most cited arguments by the press in opposing the royal charter has been that the criminal law is sufficient to ensure the press behave well. Yet by tying the police's hands in investigating their criminal behaviour, the fallback the public have always had in the criminal justice system is facing a new setback. In other words, checks and balances over all parts of government, just not the press. Lord Leveson began his investigation into media ethics by asking, “Who guards the guardians?” If RIPA is rewritten as suggested it will be further indication that the answer remains, “No-one, really.”