"A classic illustration of the dangers of legislation designed to protect the interests and safety of the state being used for political purposes", was the judgement of the eminent QC Jeremy Hutchinson at the end of a trial 44 years ago when the Sunday Telegraph was vindicated for publishing a leaked report that highlighted government hypocrisy.
The legal power used against the Telegraph was the much discredited Section Two of the Official Secrets Act, which was later repealed, but now almost half a century later newspapers are facing and fighting a new challenge to the rights of the press to freely report, without fear of being investigated by the state.
Five senior legal figures, who comprise the Investigatory Rights Tribunal, a court that investigates unlawful use of covert techniques by public authorities and claims against the conduct of intelligence and law enforcement agencies, are deciding whether Scotland Yard infringed the rights of the Sun during its investigation into whether the then chief whip Andrew Mitchell called police officers "plebs" during a row about riding his bicycle through the gates of Downing Street.
Detectives used the Regulation of Investigatory Powers Act (Ripa) to access the phone records of three Sun journalists and the news desk to try to discover the source of the Mitchell stories. Ripa was designed, in the interest of national security to allow the state to take action against terrorists and major league criminals, and allows the authorities to act without consulting a judge.
News Group Newspapers (NGN), publishers of the Sun, and three of its journalists say that the Met’s use of the powers that avoid judicial scrutiny – to obtain phone records was unnecessary and disproportionate.
The Yard obtained a week’s worth of the reporters’ phone records, including GPRS location data, and details of 90 minutes of calls to and from two news desk landlines.
News Group, and Sun journalists, Anthony France, Craig Woodhouse and Tom Newton Dunn, the paper’s political editor, launched their claim on the basis of article 10 of the European convention on human rights, which protects journalistic sources.
Amazingly, the court heard that the officer who approved the Ripa application admitted he did not know that reporters had a right to protect their sources.
Gavin Millar QC, who is acting for News Group, said in a written submission: “This is the first claim in this jurisdiction by journalists and their newspaper alleging that their convention rights were violated because the Metropolitan police used covert powers to identify a confidential journalistic source … The case therefore raises issues of great importance.”
By hell it does. If the court backs the police it will drive a coach and horses through any claims of a free press in the UK. No story or source will be safe from police investigation and in a touch of irony, any reporters' telephones, including their messaging service, will be open to police investigation. No need to hack, just a nod from a senior officer that Ripa can be used.
The justification by the police in the Mitchell case to use Ripa was, in not so many words, that they were looking at a minor coup orchestrated by the beat bobbies who open and shut the gates at Downing Street. If it were not so serious it would farcical.
The result could be, unless the court backs the Sun, that any reporter using sources to get information on stories that someone wants kept quiet, could have his phone records secretly examined without any judicial oversight, undermining investigative journalism as we know it.