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  7. RIPA: Confidentiality of journalists’ sources is a bedrock of our democracy

It should send a chill down the spine of everyone working in the news business that the police can access the phone records of working journalists without anyone knowing.
Most notoriously, the Metropolitan Police used the records of The Sun’s political editor Tom Newton Dunn to help identify the officers who had tipped off the paper about the “Plebgate” incident involving ex-Tory Chief Whip Andrew Mitchell.
But at least five other forces are believed to have accessed journalists’ phone records and the implications for public scrutiny are clear; if staff wish to raise matters in the public interest about their organisations with the media, then knowing their communications can be tracked makes this far less likely to happen.
For some months now the trade website Press Gazette has been campaigning for the guidelines surrounding the Regulation of Investigative Powers Act (RIPA) to be amended so there must be a court hearing, at which the journalist in question can contest the case, before a public authority can access journalistic records.
Now they have sent a letter, signed by 100 senior editorial figures including four members of the SNS editors’ committee, to Prime Minister David Cameron urging him to ensure the new Acquisition and Disclosure of Communications Data code of practice includes the requirement for judicial approval before a journalist’s phone records can be accessed.
While this might not be his highest priority, the fact that every UK national newspaper editor has signed the letter four months away from an election might concentrate the minds of his advisors.
Although there is a separate Regulation of Investigatory Powers (Scotland) Act, it applies only to the use of covert surveillance and according to the Scottish Government accessing journalists’ phone records is entirely a matter for the UK Government.
The SNS has asked Police Scotland if they, or the eight forces before amalgamation, have used RIPA to obtain journalists’ phone records but they will not answer until an investigation currently being undertaken by the Interception of Communications Commissioner has been completed. I have also written to the Cabinet Secretary for Justice, Michael Matheson, for clarification of the Scottish Government’s view.

For now, the Scottish Government’s position is to wait and see. A spokesperson confirmed the issue is one for the UK Government and they await a report from the Interception of Communications Commissioner, Sir Anthony May
“The Scottish Government will be interested to see what recommendations are made in that report,” said the spokesperson.

But whether or not it has happened in Scotland, it is permitted by law as it currently stands and there is no guarantee Police Scotland or any other public authority cannot use RIPA at will to track down an employee who might have done nothing other than raise an issue of public concern with the media.
Surely, a country at ease with the way public services are administered has no cause to fear the revelations of public servants and if such cases are rare then the call for immediate judicial oversight to be part of the process is not unreasonable.
The last annual report of the Interception of Communications Commissioner makes it clear that the access of a private individual’s data under RIPA is permissible when that person is suspected of criminal activity. If that includes passing information to a journalist in the public interest, as with “Plebgate”, then we have come to a very dangerous point.

Whatever Andrew Mitchell did or did not say to the officers on the Downing Street gates, it was a matter of embarrassment, not national security or criminality. Covering up embarrassment should never be a justification for trampling over the right of journalists to investigate and the right of the public to raise issues of concern without a witch-hunt.

In November, the UK Culture Secretary Sajid Javid told the Society of Editors that RIPA “should never be used to spy on reporters and whistleblowers who are going about their lawful, vital, business.”

He went further, saying that “The right to keep sources anonymous is the bedrock of investigative journalism.  Without it, the corrupt and the crooked sleep easier in their beds.
“RIPA was passed to help with the fight against serious criminal wrongdoing, not to impede fair and legitimate journalism, no matter how awkward that journalism may be for police officers and local councils.”
In the wake of the Charlie Hebdo massacre we heard many impassioned defences of free speech, notably the Prime Minister, yet for the past four years it seems all sections of the media have been under siege from politicians and police keen to set ever tighter limits.

From forcing The Guardian to smash computers, to Police Scotland issuing warnings about the monitoring of social media, we live in an era of unprecedented complexity for freedom of expression.

Now the Prime Minister has an opportunity to put some substance behind both Mr Javid and his own fine words of last week and make sure red-faced police officers cannot secretly interfere with an essential part of our democracy.
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