Police 'hacking' scandal

What do Chris Huhne’s political downfall, ‘plebgate’ and the News of the World (NOTW) phone-hacking scandal all have in common? Quite a lot, in fact, but one answer is that they are all examples of police using anti-terror laws to ‘hack’ journalists’ phone records and identify their sources.

Over recent weeks, press and politicians have been lining up to criticise the police’s seemingly regular uncovering of journalistic sources through obtained data from telecom providers. The police’s actions have been a ‘misuse of power’ (the Guardian), constitute ‘hacking’ (Sunday Times), ‘spying on journalists’ (Daily Telegraph) and are ‘extremely inappropriate’ (Simon Hughes MP). Little has been said to counter this narrative. The perception is that the police have acted in a shady and possibly illegal way, and, in any event, haven’t been acting in the spirit of legislation.

The courts generally protect the confidentiality of journalistic sources, the argument being that this is in the public interest 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.

Protecting whistleblowers

Were this the case, press comments would be understandable. Looking at the position more closely is, however, revealing. For instance, the ‘hacking’ referred to is in fact 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) to investigate crime or serious wrongdoing. There is little evidence of innocent sources or whistleblowers being outed in a way which inappropriately jeopardises freedom of expression or is damaging to the public interest.

Among other matters, phone data obtained by the police has been used to prosecute Glen Mulcaire and members of staff at the NOTW for industrial-scale illegal phone-hacking. It has also been used to prosecute corrupt public officials for accepting bribes from journalists, while in the ‘plebgate’ scandal a police officer was shown to have pretended to be a member of the public and lied about witnessing the incident. In other words, the police have used legitimate powers to uncover serious criminal behaviour. 

Politicians are now calling for changes to RIPA to ensure that the police cannot obtain communication data relating to journalists without making an application to court for judicial authority first. The home secretary has promised action. Details are currently scarce, but it seems likely that in future the police will no longer be able to obtain evidence simply when an officer decides the RIPA criteria has been met.

This will have a profound effect on police investigations involving journalists and risks allowing crime to go undetected. Court applications take a lot of time, cost a lot and usually involve taking a substantial risk of public censure should they fail. When a journalist is suspected of crime, phone records will often be important evidence, but, facing these consequences, the police are going to be less likely to investigate.

By contrast, police will continue to be able to obtain 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 involving a judge.

Public interest

No doubt RIPA 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 police ‘hacking scandal’ with the well-known NOTW phone-hacking scandal. In the former, after scant public debate, we seem to be on track for a change in the law to restrict 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 NOTW scandal is that the press almost universally ignore the royal charter on press regulation, and remain as unaccountable to the public as ever. 

Interestingly, one of the most cited arguments by the press in opposing the royal charter has been that the criminal law is sufficient to ensure press standards. Yet by tying the police’s hands, the fallback the public have always had in the criminal justice system is faced with a new setback. In other words, we need 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 it will be another indication that the answer remains no one, really. SJ