During the investigation in 2012, called Operation Alice, into what became known as “Plebgate”, the Metropolitan Police Service obtained a total of four authorisations for communications data targeting journalists working for The Sun newspaper for the purposes of identifying their sources. In 2014 the Metropolitan Police published its closing report on Operation Alice, which disclosed for the first time, that communications data had been obtained. When made aware of this, the journalists complained to the Investigatory Powers Tribunal. The IPT published its judgment in News Group Newspapers Limited and others v The Commissioner of Police for the Metropolis [2015] UKIPTrib 14_176-H on 17 December 2015.

The facts are extremely well known. On 19 September 2012, it was alleged that Andrew Mitchell MP referred to officers from the Metropolitan Police’s Diplomatic Protection Group as “plebs” during an altercation at the gates to Downing Street. Two days later the story appeared on the front page of the Sun newspaper. Eventually, Mitchell had to resign his ministerial position. Criminal, disciplinary and civil proceedings followed. One officer was charged with and pleaded guilty to misconduct in public office, three officers were also dismissed although Mitchell in fact lost an action for damages, the court ultimately concluding that the officer he verbally abused was substantially telling the truth. The IPT case concerned the investigation that followed in the aftermath of the incident.

The principal conduct that it was said gave rise to the need for the use of covert resources was: (i) a call by officer G to the Sun’s news desk on the evening of the incident reporting what had occurred; (ii) disclosure of the police log by officer G the following day; (iii) an email from Mr W, also the following day, purporting to be a constituent of Sir John Randall, the Deputy Chief Whip of Mitchell’s political party, who claimed he had witnessed the incident; and (iv) a call, again the day after the incident, to the Sun’s news desk by the partner of another officer, again by someone who purported to be a witness, this time claiming they had heard Mitchell refer to the officers as “morons” (although details of this call were not known to the Metropolitan Police until 4 June 2013, when the Sun disclosed it during legal proceedings).

The Directorate of Professional Standards launched an investigation following the leaks to the press. In its early stages it was not considered the leak necessarily amounted to a criminal offence. However the position changed in December 2012 when the veracity of the email from Mr W was questioned. CCTV from Downing Street was checked and it became clear that there were no witnesses to the exchange between Mitchell and the officers. Mr W turned out to be a police officer and member of the Diplomatic Protection Group. He was arrested on 15 December 2012. Two days later an application was made for authorisation to acquire and or use communications data from W’s telephone. On the same day the case was referred to the Independent Police Complaints Commission. By 22 December 2012 the Senior Investigating Officer considered the objective of the operation to be to ascertain whether “there [was] a conspiracy between W and any other office”. The same day he requested authorisation to obtain the communications data of two Sun journalists. These were authorised the following day. They identified officer G had, contrary to his account to investigators, been in touch with the journalists.

On 14 March 2013 a further application was authorised against another journalist. The application had in fact been prepared and submitted in the previous January. No explanation was provided for the delay. On 4 June 2013 it emerged that a document in the related legal proceedings between Mitchell and the Sun pleaded a further call from a witness on the day after the incident. Two days later an application for further communications data was granted, this time in respect of the newspaper’s news desk. This yielded information suggesting that the partner of a further Diplomatic Protection Group officer, J, had made the call. She was later arrested.

On 26 November 2013 the Crown Prosecution Service announced it would charge officer W, but no other officers, with misconduct in public office.

On 6 February 2014 the IPCC published its overview of the investigation and recommended misconduct proceedings in respect of some of the officers who had been involved. In September that year the Metropolitan Police Service published its closing report. This revealed for the first time that it had obtained the communications data of one journalist and the Sun’s news desk. On 27 November 2014 Mitchell lost his legal action against the Sun, the court concluding that the “toxic phrases” attributed to Mitchell were substantially true.

The challenge to the lawfulness of the communications data authorisations has resulted in the first ever published decision on the provisions of ss 21 and 22 of the Regulation of Investigatory Powers Act 2000. The former provides for the lawful acquisition and disclosure of communications data providing, amongst other things, there is an authorisation in place and it is complied with when the communications data is obtained and disclosed. The latter provides for the grounds that must exist before a person designated (holding the rank of Superintendent) can authorise its acquisition and disclosure. These include the prevention and detection of crime and the designated person must be satisfied authorisation is necessary and proportionate.

There is a Code of Practice. At the time of the incident, an earlier version was in force. This set out a number of requirements, including, that a designated person should have a current working knowledge of human rights principles and should not as a general principle authorise in cases where he or she has direct involvement. An authorisation should specify the purpose for which the acquisition and/or disclosure of communications data is authorised but does not have to specify the reasons for granting the authorisation. There was no provision for protecting journalistic information or sources. When the Code was revised in March 2015 express provision was made for the protection of journalistic sources. Where communications data is sought of this nature, relevant public authorities must make an application for judicial authorisation under the Police and Criminal Evidence Act 1984 unless there is an immediate threat to life.

The authorising officer in the case was officer H. He provided a witness statement confirming he had a working knowledge of human rights principles but did not have a clear appreciation of the extent of the legal duty to protect journalistic sources. He had no previous experience of applications of the present nature, had not received legal advice or training in handling applications where journalistic sources may be revealed. He provided a witness statement setting out the reasons why he authorised the applications in the case.

There was little difference between the first two applications. Both referred under the heading “necessity” to the investigation of the offence of misconduct in public office whereby officers were suspected of passing information to the media. Under the heading “proportionality” it referred to the seriousness of the offence, that the case had “gone to the highest levels” and whether an officer had been in touch with a journalist or that a journalist had contacted an officer. Interestingly, under “collateral intrusion”, reference was made to journalistic privilege and the fact that data relating to “a lot of family and friends” and details of “high profile people” would be acquired. When authorising it, officer H had regard to the “high profile investigation” and the absence of any less intrusive way to conduct the inquiry. The third authorisation was based on a broadly similar rationale. The fourth identified the new information revealed during the course of the litigation and that its purpose was to identify the third party who had also claimed to be a witness. It was said that it considered the encroachment on journalistic privilege but this was justified when “balanced against the seriousness of the allegation”. This again was authorised notwithstanding that the telephone number was one used specifically for “whistle-blowing” and that journalistic sources would likely be identified. These factors were outweighed by the seriousness of the offence.

The issues before the IPT were essentially two-fold. First, there ought to have been judicial pre-authorisation for the lawful acquisition of communications data that might reveal a journalistic source. This was by virtue of jurisprudence emanating from the European Court of Human Rights. Second, on the facts of the case, the authorisations were neither necessary nor proportionate for various reasons, including the availability of other legal mechanisms to obtain the data (for example, under PACE).

The question for the IPT was whether the Article 10 (freedom of expression) rights of journalists had as a matter of law been infringed. This was an objective question that did not depend on procedural propriety of the decision-making process or the adequacy of reasoning by the designated person. Inadequacy of reasoning could not, held the IPT, amount to a breach of a Convention right of itself.

There were criticisms that could be made of the analysis of necessity and proportionality in the authorisations. These included that the reasoning was not entirely clear in some respects and there were some material errors and the important principle of the need for an overriding interest to justify the obtaining of data that would reveal a journalist’s source was not properly articulated. The IPT was however satisfied that officer H had approached the applications conscientiously and exercised independent judgment in respect of them. More interestingly, the Tribunal held that the threshold of necessity had been met as the applications were made “for the purpose of investigation of a serious criminal offence, namely a conspiracy by a number of police officers in the [Diplomatic Protection Group] to discredit a government minister”. Although in respect of the first and second authorisations officer H had referred to “corruption between the MPS officers and the press” conspiracy is not mentioned. Nor was there any intelligence to suggest the press were complicit. Indeed on 6 March 2014 one of the journalists had provided a statement to the investigators expressly denying any wrongdoing. Moreover, it appears that the former Director of Public Prosecutions, Sir Keir Starmer’s observations in the case of Damien Green MP, had been largely ignored. Nor is it clear that the ingredients of the offence were made out. However, the IPT was satisfied that there was nothing in the attack on the decision in these respects. It was satisfied that officer H honestly and reasonably believed that grounds existed for the authorisation to be granted.

Despite being satisfied of the propriety of the investigation, the IPT held that the third authorisation was not necessary or proportionate. The investigation team already knew the underlying information upon which it was based. There was a failure to disclose information that might militate against granting the authority (in this case the fact that the identity of officer G was already known) The IPT referred to its decision in Chatwani v National Crime Agency [2015] UKIPTrib 15_84_88-CH, discussed here, and concluded there had been a failure in the duty of candour.

Consideration was then given to the requirement for prior judicial authorisation. There was a further two issues: (i) whether the police should have applied, not under RIPA 2000 but under s 9 of PACE 1984 for communications data; and (ii) whether disclosing the data in the manner it did, the Metropolitan Police Service breached Article 10 of the European Convention on Human Rights.

It was not in issue that the police could have sought an order under s 9 PACE. The new Code requires the police to do so in the absence of a threat to life. Although in 2013 the Code did not include this requirement an application under s 9 PACE would have been practicable and would have ensured the necessary judicial authority for communications data that might reveal a journalist’s source. The IPT accepted that RIPA was at the time of the investigation considered to be the appropriate means for police to obtain the data but reminded itself that the issue of proportionality had to be judged objectively and the mere fact that RIPA seemed the most apposite mechanism did not answer the complaint. In the end the IPT accepted the police position – namely that the proportionality of the conduct engaged in was not affected by the means used – since on the complainant’s view, alternative means existed that could have been used to obtain the data. This does not appear to consider the procedural protections the alternative means provided but the IPT was of the view that such arguments were unsustainable.

Proportionality was distinct from legality. The question arose as to whether the procedure under s 22 adequately safeguarded Article 10 rights. This in turn raised a fundamental issue, namely, whether judicial pre-authorisation was necessary or if not, is s 22 sufficiently precise and subject to safeguards such that they are sufficiently prescribed by law. An analysis followed of the competing authorities from Strasbourg and the United Kingdom. In summary, the IPT held that the principle of legal certainty was met in s 22 since it required an evaluation of necessity and proportionality and is reviewed by an independent Commissioner and in the event of complaint the IPT. However, it was concerned that journalistic sources were not at the relevant time subject to additional safeguards. The IPT held the “real difficulty is that the safeguards in place in 2013 did not include any special provisions designed to provide effective safeguards in a case which directly affected the freedom of the press under Article 10”. There was no stricter test or heightened scrutiny in existence distinguishing an investigation disclosing journalistic sources as against any other kind of investigation that did not.

In the absence of such scrutiny it was necessary to examine what protections existed in fact. Authorisation was not independent of the public authority and in any event fell short of independent judicial scrutiny. Oversight by the Commissioner or even the IPT would not prevent disclosure of the data. This was in contrast with a judge in a criminal trial and his or her power to exclude the evidence in appropriate circumstances. There was no duty to notify the Commissioner in advance, nor a requirement to notify the subjects of the fact their data had been acquired. For these reasons the scheme prior to the new Code coming into force in March 2015 was incompatible with the Convention.

This is a complex and important decision. It gives rise to a number of concerns over and above those dealt with in the judgment. The first is the indication by the Home Secretary’s counsel that the Investigatory Powers Bill will require all applications of this nature to “be authorised by a judicial commissioner”. This is incorrect. Clause 61 of the Bill envisages, a form of Commissioner approval, not authorisation. Moreover, it appears that the Bill previsions a move away from the use of s 9 PACE and a reversion back to the use of covert methods by authorisation under the proposed legislation. Second, the judgment highlights, as I mention in Covert Policing: Law & Practice, the “inadequacy of RIPA on the basis that it fails to consider freedom of expression within its provisions as a basis to engage in covert surveillance”. Third is the risk that investigations such as those engaged in during Operation Alice have been prolific. There is some anecdotal and empirical evidence supporting this, including the findings of the Interception of Communications Commissioner, in respect of the use of s 22 by Police Scotland to acquire details of journalistic sources. Under the new Bill the acquisition of communications data in such circumstances could constitute an offence. Finally it is likely that this type of investigation will form part of the Law Commission’s review of the law surrounding breaches of protected government data.

A number of key practical principles arise from this decision:

– applications for authority need to be precise and accurate

– the people preparing and authorising them need to be properly trained

– testing the knowledge and training of officers is an entirely permissible line of cross-examination

– there is likely to be a difficulty justifying an authorisation where there has been a significant delay following its submission

– a failure in the duty of candour is always going to be taken seriously and may have a catastrophic effect on the outcome of the authorisation process

– caution is always required in cases where the risk of acquiring confidential journalistic data, particularly their sources, arises

– in cases post-March 2015 RIPA 2000 should not be used unless there is a real and immediate threat to life which necessitates its use

– cases prior to March 2015 are likely to have been conducted in breach of Article 10 of the Convention – even where the journalist is unaware of the acquisition of the data – consideration may need to be given as to what, if anything, a public authority should do in response to this

© Simon McKay (2015). Please ask for my permission before using or copying the material contained on this blog. If you do attribute it to me with a link to the original content. This is opinion, not legal advice.