Difference between revisions of "Protection of Journalists' Sources in the U.K."


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''This paper is based on a chapter in Media Law and Practice (edited by Goldberg, Sutter and Walden, OUP, 2009) co-authored by Siobhain Butterworth (sections 1 to 8) and Jan Johannes (sections 9 to 14).''
''This paper is based on a chapter in Media Law and Practice (edited by Goldberg, Sutter and Walden, OUP, 2009) co-authored by Siobhain Butterworth (sections 1 to 8) and Jan Johannes (sections 9 to 14).''
1.1 In the UK few cases about disclosure of sources end up at trial. Some media organisations are willing to hand over journalistic material in response to court orders:
1.2 In other cases the authorities back down in the face of resistance. Most recently the Metropolitan police withdrew its application for a production order after threatening Guardian journalist Amelia Hill with breach of the Official Secrets Act when she refused to disclose her confidential sources of information in relation to stories that revealed the mobile phone of murdered teenager Milly Dowler was hacked on behalf of the News of the World. The Police alleged that information about Operation Weeting (the police investigation into phone hacking) had been leaked by a serving officer:
1.3 Disclosing a source's identity can have serious consequences as the Guardian learned in 1984 when Sarah Tisdall, a clerical officer with the Foreign & Commonwealth Office (FCO), was jailed for leaking information to the newspaper. After the Guardian published a story based on information she had given to it (anonymously), about the delivery of Cruise missiles to Greenham Common RAF base, the government got an order for disclosure.1 When the Guardian handed over the documents the FCO was able to identify Tisdall as the source of the leak because the copies she made could be traced to a particular photocopying machine.
==2.1 Financial Times and others v UK (Application no. 821/03) 15 December 2009==
2.1.1 Disclosure orders made against a group of news organisations (the Guardian, The Times, The Independent, The Financial Times and Reuters) and upheld by the Court of Appeal required delivery up of allegedly leaked documents to a brewery company.2 The documents had been sent to journalists unsolicited and anonymously. When the news organisations did not comply the Brewery backed down leaving the Financial Services Authority to try to get disclosure of the information – it did not succeed either. 
2.1.2 The news organisations in the Interbrew case were refused leave to appeal to the House of Lords and took their complaint to European Court of Human Rights where, several years later, the case was decided in their favour. ECtHR had made clear in Goodwin v UK [1996] 22 EHRR 123 that the protection of journalists’ sources is fundamental to freedom of expression and required to protect the free flow of information. ECtHR took into account that Interbrew did not seek an injunction, though it had been put on notice, prior to publication, that a copy of the leaked document had been obtained.
Interbrew's interests in eliminating, by proceedings against X, the threat of damage through future dissemination of confidential information and in obtaining damages for past breaches of confidence were, even if considered cumulatively, insufficient to outweigh the public interest in the protection of journalists' sources (§70).
==2.2 Sanoma Uitgevers B.V. v. the Netherlands (application no. 38224/03) (14 September 2010)==
2.2.1 Autoweek magazine was required to hand over to the police photographs connected with a story about illegal car racing. Grand Chamber of the ECtHR held that law enforcement agencies should ask for disclosure of journalistic material only as a last resort where a serious crime is under investigation and that orders for disclosure of such material should not be made without independent judicial scrutiny.
2.2.2 The police sought disclosure in order to investigate whether one of the cars used in the race had been used as the getaway car in an armed ram raid on a cash point machine. The journalists said that the material was capable of identifying confidential sources and they had agreed not to identify those involved – the plan was to disguise cars and drivers in any pictures they published.
2.2.3 Amsterdam public prosecutor issued a summons, under criminal procedure legislation, requiring the magazine to hand over the photographs and any journalistic material about the race. The magazine asked the duty investigating judge of Amsterdam Regional Court to intervene. He spoke to the parties by telephone and expressed the view that the needs of the criminal investigation outweighed the applicant company’s journalistic privilege. In the circumstances the magazine handed over a document containing the images.
2.2.4 Grand Chamber ECtHR held that there had been a violation of Article 10.
The Court notes that orders to disclose sources potentially have a detrimental impact, not only on the source, whose identity may be revealed, but also on the newspaper or other publication against which the order is directed, whose reputation may be negatively affected in the eyes of future potential sources by the disclosure and on members of the public, who have an interest in receiving information imparted through anonymous sources. (§ 89)
First and foremost among these safeguards is the guarantee of review by a judge or other independent and impartial decision-making body. (§90)
3.1 The digital (self) publishing revolution reminds us that freedom of speech is not synonymous with freedom of the press. Nevertheless the law has continued to place considerable emphasis on protecting press freedom. It has, for example, recognised the media’s special role as the “eyes and ears of the public” enabling other citizens to take part in public life by reporting events such as press conferences and public meetings.3  The courts have also been keen to stress the importance of journalistic investigations.
3.2 Qualified privilege cases such as Reynolds and Jameel are relevant to discussions about orders for disclosure of the identity of leaks because in such cases the right of journalists to protect their sources has been considered to be beyond question. In Reynolds Lord Nicholls said that the unwillingness to disclose the identity of a source should not weigh against a media defendant who claims qualified privilege and in Jameel the Wall Street Journal's reliance on five anonymous sources did not operate to defeat its qualified privilege defence.4
3.3 In Reynolds the presumption in favour of non-disclosure of journalistic sources granted by section 10 of the Contempt of Court Act was one of the reasons given for rejecting a new, generic, qualified privilege defence for political speech. Lord Nicholls said that malice would not be a sufficient safeguard for claimants in such cases because, faced with a media defendant who is unwilling to disclose its source, a claimant may be unable to prove that information has been published recklessly or maliciously5.
3.4 On the same point Lord Hope said:
<blockquote>“The importance which must be attached to the principle which justifies the protection of their sources by the media...carries with it certain penalties. One of these, I believe, is the discipline of having to justify each claim to the benefit of qualified privilege should the statements of fact which are made by the media turn out to be defamatory” (§654). </blockquote>
Seen from this perspective more stringent libel laws are the price paid for the shield the Contempt of Court Act provides for journalists.
3.5  R v Central Criminal Court ex parte Bright [2000] EWHC 560 (QB)
In Ex parte Bright the High Court reviewed production orders granted in favour of the police. The orders were made following publication of a letter in The Guardian from ex-MI5 officer David Shayler and an article in The Observer by journalist Martin Bright, relating to Shayler’s allegations that in 1996 the British Security Services were involved in a failed bomb plot to assassinate Libyan head of state Colonel Gadaffi. At the time the Guardian letter and Observer article were published Shayler was under investigation for breaches of the Official Secrets Act 1989 and was wanted by the police.
The production orders required the journalist and the newspapers to hand over all files, documents and records relating to the letter and the journalist's article. Notwithstanding that Shayler was evading the police and despite the fact that the case involved issues of national security the Queen's Bench Divisional Court held that the orders should not have been made. Judge LJ said:
<blockquote>Inconvenient or embarrassing revelations, whether for the Security Services or for public authorities, should not be suppressed. Legal proceedings directed toward the seizure of the working papers of an individual journalist or the premises of the newspaper or television programme publishing his or her reports, or the threat of such proceedings, tends to inhibit discussion. When a genuine investigation into possible corrupt or reprehensible activities by a public authority is being investigated by the media, compelling evidence would normally be needed to demonstrate that the public interest is served by such proceedings. Otherwise, to the public disadvantage, legitimate enquiry and discussion…would be discouraged, perhaps stifled.” (§98)</blockquote>
4.1 Media defendants faced with an order for disclosure rely on the shield provided by section 10 of the Contempt of Court Act.
4.2 Section 10 provides:
<blockquote> No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.</blockquote>
4.3 Section 10 creates a presumption in favour of non-disclosure of sources, which can be defeated if the claimant can bring itself within one of the 4 listed exceptions (interests of justice; interests of national security; prevention of disorder; prevention of crime) and can show that the order is “necessary” for those purposes6.
==4.4 Ashworth Security Hospital Authority v MGN Limited [2002] UKHL 29==
4.4.1 House of Lords noted that while judicial opinions differ about the extent to which section 10 was intended by parliament to reflect Article 10 of the European Convention on Human Rights, it is clear that they have a common purpose of enhancing the freedom of the press by protecting journalistic sources and courts should approach them in the same way.
4.4.2 Section 10 provides protection regardless of whether the information has been published.7 There need be no explicit agreement from the journalist that the identity of the source will remain confidential and the protection may be available even where a journalist receives unsolicited material from an anonymous source8. Public interest is not essential9. However, the (presumed) purpose of the source and the absence of public interest may weigh in favour of an order for disclosure10.
5.1 Legislation (discussed below) covers orders for disclosure of information in connection with criminal proceedings. In other cases the disclosure jurisdiction is based on the principles established in Norwich Pharmacal Co v Commissioners of Customs and Excise.
<blockquote>[I]f through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrongdoing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did. It may be that if this causes him expense the person seeking the information ought to reimburse him. But justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration”.11
5.2 House of Lords confirmed and extended the application of the Norwich Pharmacal jurisdiction in relation to journalistic sources in Ashworth. An order for disclosure can be made notwithstanding that it is sought in order to dismiss an employee rather than for the purpose of bringing legal proceedings against him or her. In that case the Daily Mirror published a story based on extracts from the medical records of serial killer Ian Brady, a patient at Ashworth security hospital, who was on hunger strike at the time and undergoing forced feeding. The information did not come to the paper directly through the source but through an intermediary whose identity was known to the publisher and who was paid £1500. The newspaper did not know the source’s identity but accepted that he or she was probably a hospital authority employee. An order requiring the defendant to explain how it came into the possession of Brady’s medical records and to identify any employee of the authority involved in publication was upheld by both the Court of Appeal and the House of Lords.
5.3 In Interbrew, decided shortly before Ashworth, the Court of Appeal had held that the Norwich Pharmacal jurisdiction was confined to civil wrongs and could not be used in relation to criminal matters. Sedley LJ said the job of identifying criminals should generally be left to prosecuting authorities equipped with statutory powers of search and seizure (§18-23). But in Ashworth the House of Lords dismissed this view as “too restrictive”. Lord Woolf emphasised that while Norwich Pharmacal is an “exceptional jurisdiction” it is also a developing jurisdiction (§57).
5.4 In summary the Norwich Pharmacal disclosure jurisdiction does not depend on whether the media defendant has committed a tort, a breach of contract or other civil or criminal wrong. The party against whom the order is made does not have to be a wrongdoer, all that is needed is for him or her to have participated or been mixed up in some way in the source’s wrongdoing (§34). The need for involvement in wrongdoing is a “threshold requirement” said the court in Ashworth, but the Norwich Pharmacal jurisdiction is discretionary and an order for disclosure should not be made unless it is a “necessary and proportionate response in all the circumstances” (§36).
5.5 A question may arise as to whether a source has been involved in any wrongdoing, for example the media defendant may be able to argue that the information is no longer secret, or it may claim that there is a public interest defence in relation to breach of confidence. In Ashworth the newspaper argued that there was no breach of confidence (and therefore no wrongdoing) because Ian Brady had put similar information about his medical treatment into the public domain. However, the House of Lords said there was wrongdoing on the part of the source who, it was presumed, was an employee who had breached his or her contract of employment (§31-32). In any case, the Court said, Ashworth hospital had an independent interest in the confidentiality of the material (§22).
6.1 An order for disclosure cannot be made unless the person seeking it can satisfy the court that one of the four exceptions in section 10 applies and that the order is “necessary”.
6.2 In several cases the effectiveness of the section 10 shield has depended on the court's interpretation of the phrase “interests of justice”. When the Court of Appeal considered the issue in Ashworth Lord Phillips MR held that the “interests of justice” in section 10 is not limited to the administration of justice in the course of legal proceedings12. Instead the phrase should be given the broader interpretation recommended by Lord Bridge in X Ltd v Morgan-Grampian (Publishers) Ltd:
<blockquote>It is, in my opinion, “in the interests of justice”, in the sense in which this phrase is used in s10, that persons should be enabled to exercise important legal rights and to protect themselves from serious legal wrongs whether or not resort to legal proceedings in a court of law will be necessary to attain these objectives. Thus, to take a very obvious example, if an employer of a large staff is suffering grave damage from the activities of an unidentified disloyal servant, it is undoubtedly in the interests of justice that he should be able to identify him in order to terminate his contract of employment, notwithstanding that no legal proceedings may be necessary to achieve that end.13
7.1 Section 10 and Article 10 require that the disclosure must be necessary otherwise the presumption in favour of protection of sources cannot be overridden. There are two aspects to necessity. First, as discussed above, there is no necessity if the party seeking the order cannot bring itself within one of the four exceptions set out section 10 - in such cases the journalist’s statutory right to refuse to disclose the source is preserved in tact. Second, it is not enough to establish that the facts of the case fit within one of the exceptions and that the disclosure of the source is necessary to meet one of those legitimate aims; the disclosure order must be a “necessary and proportionate” response14.
7.2 In Ashworth the House of Lords endorsed the approach outlined by Lord Bridge (supported
by Lord Oliver and Lord Lowry) in X Ltd v Morgan Grampian-Publishers Ltd that the “balancing
exercise” required to be undertaken in order to establish that disclosure is necessary in the interests
of justice under section 10 is the same as that required for  section 10 (2).15 The court’s job is to
weigh competing public interests against each other:
It will not be sufficient, per se, for a party seeking disclosure of a source protected by s 10 to show merely that he will be unable without disclosure to exercise the legal right or avert the threatened legal wrong on which he bases his claim in order to establish the necessity of disclosure. The judge's task will always be to weigh in the scales the importance of enabling the ends of justice to be attained in the circumstances of the particular case on the one hand against the importance of protecting the source on the other hand. In this balancing exercise it is only if the judge is satisfied that disclosure in the interests of justice is of such preponderating importance as to override the statutory privilege against disclosure that threshold of necessity will be reached16.
7.3 In Mersey Care NHS Trust v Ackroyd [2006] EWHC 107 (sequel to Ashworth) Tugendhat J refined the balancing exercise with reference to the decision of the House of Lords in Re S (A Child) [2005] 1 AC 593 (a case about reporting restrictions) on the approach required when dealing with conflicting Convention rights17. In Re S Lord Steyn said:
<blockquote>The interplay between articles 8 and 10 has been illuminated by the opinions of the House of Lords in Campbell v MGN Ltd [2004] 2 WLR 1232. For the present purposes the decision of the House on the facts of Campbell and the differences between the majority and the minority are not material. What does, however, emerge clearly from the opinions are four propositions. First, neither article has as such precedence over the other. Secondly where the values under the two articles are in conflict an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test (§17).</blockquote>
7.4 Following Goodwin, the “necessity” for any restriction of freedom of expression must be convincingly established and the limitations on the confidentiality of journalistic sources call for the most careful scrutiny by the Court18. In addition, in order to comply with the requirements of Article 10 (2) the exercise of the disclosure jurisdiction must meet a “pressing social need” and the restriction must be proportionate to a legitimate aim that is being pursued.19
8.1 The factors to be put in the balance when deciding whether it has been convincingly established that there is a pressing social need to require a journalist to reveal his or her source will depend on the facts each case. In Ashworth Lord Woolf described the Norwich Pharmacal jurisdiction as a “discretionary jurisdiction” (§36). 20 The varying outcomes, in cases that are similar or closely related, support that analysis of the disclosure jurisdiction.21  Some of the factors the courts have considered relevant to the issues of necessity and proportionality in recent cases are discussed below.
==8.2 Other avenues of inquiry ==
8.2.1 Nikitin v Richards Butler [2007] EWHC 173 and Mitsui v Nexen Petroleum [2005] EWHC 625
The disclosure order may not be necessary if other means of obtaining the information have not been pursued22. But does this mean that the party seeking the order must show that all other avenues have been exhausted before an approach is made to the media defendant? In Secretary of State for Defence v Guardian Newspapers Ltd Lord Roskill said that such a principle would place the applicant “on the horns of a dilemma”: if it delayed the application in order to pursue all other lines of inquiry then a subsequent application for a disclosure order against the media defendant might be defeated on grounds that the order should have been made earlier23.
In the Nikitin and Mitsui cases it was suggested that the disclosure jurisdiction can only be exercised when the party against whom an order is sought is the only practicable source of information and the missing piece of the puzzle.24
8.2.2 R (on the application of Mohamed) v Secretary of State for Foreign Commonwealth Affairs [2008] EWHC 2048 (Admin)
By contrast in R (on the application of Mohamed) the Divisional Court said that to suggest that the disclosure order must be the last piece of the jigsaw puts the test of necessity too high (§94) . The court should consider matters such as the size and resources of the applicant, the urgency of its need to identify the source and the public interest in the disclosure of the source. 
==8.3 The type of information==
8.3.1 In Ashworth a great deal hung on the fact that these were medical records.
The situation here is exceptional…as it has to be, if disclosure of sources is to be justified. The care of patients at Ashworth is fraught with difficulty and danger. The disclosure of the patients' records increases that difficulty and danger and to deter the same or similar wrongdoing in the future it was essential that the source should be identified and punished. This was what made the orders to disclose necessary and proportionate and justified (§93-4).
The court found that the leak would have an inhibiting effect on the doctor patient relationship and that there was a cloud of suspicion over other employees at the hospital.  It is worth noting that the passage quoted above includes the suggestion that the general deterrent effect of a disclosure order on those who might be tempted to leak information is relevant to the question of necessity and proportionality.
==8.4 The source’s conduct and nature of the wrongdoing==
8.4.1 The source’s conduct and the nature of the wrongdoing are also relevant to the issues of necessity and proportionality. In Ashworth the fact that Ian Brady had himself disclosed information about his medical treatment did not detract from the need to prevent staff from revealing patient records.25
===8.4.2 Mersey Care Trust v Ackroyd [2006] EWHC 107 ===
Following the House of Lords’ judgment in Ashworth, the Daily Mirror, in compliance with the disclosure order, gave the hospital authority details of the intermediary who had provided the newspaper with information for its story, but this did not lead to the source. The intermediary was another journalist, Robin Ackroyd, who refused to identify his source. Consequently there was another trial about the events however this time the court declined to make an order for disclosure.
8.4.3 Court of Appeal in Ackroyd, upholding the decision of Tugendhat J, said the question of whether it was necessary and proportionate to order disclosure of the source was for the trial judge who had the task of balancing the conflicting interests of the parties. An appellate court should not interfere “unless it is persuaded he erred in principle or reached a conclusion that was plainly wrong; that is a conclusion outside the ambit of conclusions which a judge could reasonably reach.” 26 
8.4.4 Tugendhat J was careful in his closing remarks to make clear that although he had reached the opposite conclusion to the House of Lords in Ashworth, he had followed the House of Lords’ decision on all points of law and he did not consider that medical records were less deserving of protection.27 However, he reached different findings of fact based on different (new) evidence –including the evidence of Robin Ackroyd. Among other things he found that only parts of the notes had been disclosed and that medical information of high sensitivity had been left out. He also found that it was not possible to say that the information had been disclosed without Ian Brady’s consent; it was similar to information he had put in the public domain. There was also the passage of time to consider.28
==8.5 Public interest in the information disclosed==
8.5.1 The presumption in favour of the protection of journalistic sources does not depend on whether the material disclosed by the source is in the public interest29. In Interbrew SA v Financial Times Sedley J described the pubic interest in the confidentiality of journalists’ sources as “constant”.30 Indeed there is no mention of public interest in either section 10 or article 10. However, information disclosed by a source about matters of public interest may obtain a higher degree of protection and tip the balance in favour of freedom of expression.31
==8.6 Source’s motive==
8.6.1 On the one hand the public interest in disclosure is “constant” - whatever the merits of the information or the motives and character of the source.32 On the other hand the source’s purpose, while not a deciding factor, may weigh against the presumption in favour of non-disclosure in section 10. In Interbrew the purpose of the source was considered to be an important factor. Sedley LJ made a distinction between the motive of the source, which is “ordinarily pure guesswork” and “immaterial to the legal issues” and the source’s purpose in leaking the information which he considered to be “highly material”:
If it [the purpose of the leak] is to bring wrongdoing to public notice it will deserve a high degree of protection, and it will not matter – assuming that it could anyway be ascertained – whether the motive is conscience or spite. If the purpose of the leak is to wreck legitimate commercial activity, again it will not matter whether it is done for political motives or personal gain: it will be less deserving of protection. For these reasons the court of first instance, while not speculating about motive, needs to form the best view it can of the source’s purpose...where a case for overriding the privilege against disclosure is made out, the consequent chilling effect, as Lord Phillips MR said in Ashworth may be no bad thing. (§42)
8.6.2 The idea that the purpose of the source is critical in deciding whether an order should be made goes to the heart of a fundamental, but rarely explored, question about section 10. Does it exist to protect journalists’ sources or to protect the journalists’ newsgathering activities and therefore the free flow of information? The different approaches of the Court of Appeal in Interbrew and Ashworth suggest there is some confusion about this issue.33
8.6.3 In Ashworth the assumption that the source had been paid was considered to be relevant to the issue of necessity but when the facts about the leak of Ian Brady’s medical information were considered afresh in Ackroyd Tugendhat J found that the source did not have a financial motive and was probably involved in a misguided attempt to act in the public interest and that this was a significant factor:
If the motive were financial there would be the obvious risk of repetition referred to in the MGN case. And the fact that no repetition has occurred so far would be little indication to the contrary. It would be consistent with the source lying low…[b]ut a source who misguidedly thought he or she was acting in the public interest in the extraordinary circumstances of October 1999 (when Ian Brady had a well founded complaint of mistreatment by the hospital which followed the dreadful history set out in the Fallon report) is not a person who can be said to present a significant risk of disclosure…34
==8.7 Journalist’s conduct==
8.7.1 In Ackroyd Tugendhat J put into the scales the journalist’s conduct on the basis this reflected the approach taken in other cases relating to journalists exercise of their rights of free speech such as Reynolds. The journalist had a record of investigative reporting and it was not in the public interest that his sources should be discouraged from speaking to him.35
==8.8 Truth or falsity of the information==
8.8.1 In Interbew it was alleged that parts of a document disclosed by an anonymous source about the takeover of brewery had been forged. While that was not a deciding factor Sedley LJ said:
<blockquote>“[I]f this were a case in which the falsehood of the nub of the story had been established…it would in my judgement be an additional reason for overriding the protection accorded to the source.” He added: “If, as the Court stressed in Goodwin…the central purpose of the shielding of journalists’ sources is to enable the press to provide accurate and reliable information, to the extent that that purpose is departed from the rationale of the protection recedes…”(§42)</blockquote>
Sedley LJ recognised however, that if the claimant asserts that the source’s information is false or claims that the documents have been falsified the media defendant is at a distinct disadvantage because it may not be in a position to prove otherwise:
<blockquote>I have to say that I find this aspect of the Norwich Pharmacal procedure troubling. A commercial enterprise which may very well have its own reasons for denying the authenticity of a document gets a clear run against a media defendant which can only, save in rare cases, take a neutral stand on the question. The court of first instance needs to be extremely circumspect before accepting evidence, especially when, as here it is second or third-hand. (§41)</blockquote>
9.1 Police powers of search and seizure under: Police and Criminal Evidence Act 1984 (PACE), Terrorism Act 2000, Official Secrets Act 1989 and Serious Organised Crime and Police Act 2000.  Regulation of Investigatory Powers Act 2000 allows investigators to obtain journalist material through covert means such as interception of emails and telephone.
==9.2 R v Sally Murrer and others Crown Court, Kingston upon Thames (November 2008).==
Conversations between a local newspaper journalist and police detective were bugged by Thames Vally police.  The journalist was arrested and charged with aiding and abetting misconduct in public office. The newspaper’s office was searched and Police seized Murrer’s notebooks, emails and contacts. She was due to stand trial with the detective who was alleged to be her source, however, the judge directed an acquittal on the basis that the evidence against her was inadmissible because of the unlawful interferences with her right to freedom of expression.
9.3 Under PACE journalistic material may be exempt from disclosure as “excluded material” or “special procedure material” under sections 11 and 13 of the Act.
9.4 Criminal Justice and Police Act 2001 amended PACE to allow the police to seize “mixed” material for example by seizing a computer, and to “search and sift” the material off the premises to determine that which is “special procedure material” (requiring an application under Schedule 1).36
9.5 Police must make an application for journalistic material on notice to a circuit judge.37 The judge may make an order requiring the material to be delivered to a police constable or investigating officer within 7 days but only if the “access conditions” in Schedule 1 of the Act are satisfied. 38
==9.6 Access conditions (Schedule 1 PACE)==
9.6.1 There must be reasonable grounds for believing that: an indictable offence has been committed; material is likely to be of substantial value; material is likely to be relevant evidence; and other means of obtaining the material have either been tried without success, or not tried because they were bound to fail. It must also be in the public interest that the material should be produced, having regard to the benefit likely to accrue to the investigation if the material is obtained; and the circumstances under which the person in possession of the material holds, that the material should be produced or that access to it should be given. While the investigation must concern specific incidents the application does not need to identify a particular document or a particular incident of violence or criminal offence.39
9.6.2 A second set of access conditions apply if there are reasonable grounds for believing that there is material which consists of or includes excluded material on the premises specified.
9.6.3 Judges should not make production orders on the basis of “bare assertions” by police officers. Law enforcement officers have an obligation to make full and frank disclosure.40
9.6.4 Police are expected to show that they have tried to get the material from other sources.41 The media should not be the first port of call. 42
9.6.5 The court retains discretion as to whether or not to make the order sought, bearing in mind wider public interest considerations, such as the principle against self-incrimination, and interference with freedom of expression.43
Lord Justice Judge in R v Central Criminal Court ex parte Bright, Alton & Rusbridger [2001]
“This provision, as it seems to me, is the final safeguard against an oppressive order, and in an appropriate case, provides the judge with the opportunity to reflect on and take account of matters which are not expressly referred to in the set of relevant access conditions.”</blockquote>
9.7 Once the journalist/news organisation is served with notice (which must identify the offences under investigation, describe the material sought and give the address(es) of premises at which it is believed the material is held ) it is a contempt to conceal, alter, destroy or pass to a third party the material sought.
9.8 Applications without notice are possible but rare.44 They can be made if: it is not practicable to communicate with the person entitled to grant entry to the relevant premises; it is not practicable to communicate with the person entitled to grant access to the relevant material; the material sought is in danger of being disclosed in breach of a restriction on disclosure (e.g. Official Secrets Act 1911); proceedings inter partes might ‘seriously prejudice the investigation.45
Applications without notice continue to be used, for example in the Sally Murrer case mentioned above, even when these  conditions are not satisfied.
9.9 If a production order is made this does not authorise immediate powers of search and seizure. The order obliges an individual to hand over or give access to the material.46 If the respondent does not comply with the production order, a judge may issue a search and seizure warrant.
9.10 Khan v Commissioner of Police of the Metropolis [2008] EWCA Civ 723
Police search of the home of the respondent was not lawful. Police entered and searched Khan’s premises under s. 18(1) of PACE - in the middle of the night despite Khan’s objections and the presence of members of his family – having been given the address by a suspect. The judge found that the requirements of s. 18 of the Act had not been met, as there was no evidence that the suspect had ever owned or occupied Khan’s premises. K was awarded damages for trespass.
==10.11 Roemen and Schmidt v Luxembourg 51772/99 ECHR 2003-IV (25.2.03)==
Searches of journalists’ offices and homes were technically lawful under domestic law but the EctHR found that they amounted to breaches of Article 10 and Article 8.
==10.12 Ernst v Belgium B33408/96 (fr) (15.7.03)==
A search by 160 police officers of the offices and homes of 4 journalists to identify confidential sources was held to have violated Article 10 and Article 8. ECtHR found the searches were disproportionate, and the infringement of freedom of expression was not “necessary” in the sense of corresponding to a pressing social need.
==10.13 Voskuil v Netherlands (Application no. 64752/01) (22 November 2007)==
A Dutch court ordered a journalist to reveal the identity of a police source and when he declined imprisoned him for 30 days. The Strasbourg court accepted that the state had a legitimate interest in identifying the source to establish whether there had been a miscarriage of justice (police officers has allegedly fabricated evidence in a criminal case) but this did not justify the action taken against the journalist.
=11. Terrorism, disclosure and surveillance=
==11.1 Terrorism Acts 2000 and 2006 (“TACT 2000” and “TACT 2006”) have wide scope to cover all sorts of civil protestors.==
11.2 TACT 2000 -  journalistic material is protected in a similar way to PACE but bar for getting a production order is lower. Schedule 5 sets out the access conditions (similar terms to PACE) but there is no requirement that the material is likely to be relevant and admissible evidence. The applicant need only show that the material is likely to be of substantial value either by itself, or together with other material, to a terrorist investigation.
==11.3 Malik v Manchester Crown Court & Ors [2008] EWHC 1362==
Shiv Malik, a freelance journalist, was ordered to hand over, to Greater Manchester Police, notes and other material in connection with a book he had written about former terrorist Hassan Butt. In judicial review proceedings the High Court found that the production order too broad. Hassan Butt had already identified himself as involved in serious criminal activities, and as the material had been requested by ‘A’ in connection with another criminal trial in order to exonerate himself, the balance weighed against the protection of Butt as a source.
=12. Official Secrets Acts=
12.1 Warrants for search and seizure in relation to information that might be useful to an enemy of the state can be issued by magistrates under section 9 of the Official Secrets Act 1911. The search may be authorised by police superintendent in extremis – where the interests of the state require immediate action. Powers under the OSA 1911 were used to search premises of BBC Scotland in Glasgow [Zircon] following government concern about the proposed broadcast of a television programme about a British spy satellite.
12.2 Official Secrets Act 1989 creates offences relating to disclosures by Crown servants and by anyone notified that they are subject to the Act. Under section 5 it is an offence to disclose information where the person making the disclosure suspects that it would be damaging to national security. In ex parte Bright, mentioned above, it was suggested that the journalist Martin Bright may have committed a section 5 offence.
=13. Regulation of Investigatory Powers Act 2000 (RIPA)=
13.1 RIPA give power to the executive to undertake interception of electronic communications on grounds of threats to national security and economic well-being, and to compel access to decryption keys. (It also covers unlawful interception of communications by private individuals).
=14. Serious Organised Crime and Police Act 2005 (SOCPA)=
14.1 Section 60 of the SOCPA gives powers of compulsory questioning to the DPP, Director Revenue and Customs Prosecutions, and the Lord Advocate, which may be delegated to Crown or Revenue and Customs prosecutors and procurators fiscal. SOCPA does not require judicial authorisation for compulsory questioning (section 62). 
14.2 No protection for journalistic material other than that which is held in confidence under SOCPA. Warrants to enter, search and seize documents may be made by a justice of peace. There is no statutory right of appeal against an authorisation to disclose information.
14.3 Powers under SOCPA can be exercised in connection with offences listed under section 61 of the Act including offences under the Proceeds of Crime Act, and fundraising and money laundering offences under Terrorism Act 2000.
14.4 Similarly, under section 2 (ii) Criminal Justice Act 1987, a person can be directed to answer questions, provide information or produce documents for the purposes of an investigation can be exercised by a “competent investigator”.  Under the Financial Services and Markets Act 2000 regulatory investigators may require a person to attend and answer questions and produce documents. A failure (or refusal) to do so may be treated as contempt. Journalist will rely on the section 10 Contempt of Court Act shield discussed above in these circumstances.

Latest revision as of 11:30, 5 November 2011

Ad Idem Media Lawyers Conference Montreal November 2011

This paper is based on a chapter in Media Law and Practice (edited by Goldberg, Sutter and Walden, OUP, 2009) co-authored by Siobhain Butterworth (sections 1 to 8) and Jan Johannes (sections 9 to 14).

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