Leading media lawyer Gavin Millar has criticised the government for “not doing its job properly” and failing to close the loophole in the Regulation of Investigatory Powers Act (Ripa) which allows the police and other authorities to access journalists’ telephone records.
“Parliament should have written the right to protect confidential journalistic sources into Ripa, along with explicit procedural safeguards for this important right,” said Millar, speaking at the Society of Editors conference in Southampton. “These should make clear that when investigating authorities want to use covert powers to identify sources they must go before a judge with a full account of the issues in the case. The legislation should explicitly require the application by the judge of the established legal principles on source protection. None of this has happened.”
Millar has worked on a string of cases including acting for the Sun over the Metropolitan police accessing political editor Tom Newton Dunn’s phone records to find a confidential source behind the Plebgate story – about former Tory chief whip Andrew Mitchell’s altercation with police at the gates of Downing Street.
He also acted for the Mail on Sunday over police similarly using Ripa to access a reporter’s phone records to identify a source related to its story on former MP Chris Huhne’s speeding fraud.
“None of this would have happened if parliament had done its job properly and protected the journalists’ rights in the legislation,” said Millar, a founding member of the leading human rights practice Doughty Street Practice. “The Ripa powers are still being misused to identify confidential sources.”
Millar said his biggest concern is the secrecy and lack of disclosure about the true extent of Ripa misuse against journalists, an issue that undermines the UK’s strong tradition of protecting the freedom of the press.
“Most worryingly of all we do not know how often and in what situations the police and other public authorities are using these covert powers against journalists,” he said. “There is no information in the reports presented to parliament about the operation of the legislation. And the police themselves cannot or will not say. Information about individual cases surfaces only sporadically, usually in a court case. I believe they have been used in many other cases, particularly in recent years. Again this is not what one would expect in a democratic society with strong traditions of press freedom.”
Millar said that while the Metropolitan police complained to the Leveson inquiry into press standards and ethics about how difficult it is to use the Police and Criminal Evidence Act to get access to confidential journalistic information, they failed to point out how they were covertly using Ripa powers.
“The [Leveson] inquiry recommended consideration of relaxing these statutory protections for journalists,” he said. “The Met did not, however, explain to the inquiry that it considers itself entitled to sidestep these protections and use covert powers to identify confidential journalistic sources.”
In September, Millar teamed up with the Bureau of Investigative Journalism to make an application to the European court of human rights seeking a finding that domestic law is incompatible with European law which gives journalists the right to keep sources confidential from police and others.
“I suppose one might, if one was being cynical, contrast the apparent enthusiasm of many parliamentarians to legislate for press regulation with their marked reluctance to legislate to protect press rights and due process,” he said.
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