Anthony Longden Column: Police use of RIPA to investigate journalists is no new thing

The police’s abuse of the law that allows officers to go hunting for information about who your anonymous sources might be is outrageous. It is not, however, much of a surprise.

I remember attending a number of meetings as far back as 15 years ago, at which proposals for what was to become RIPA – the Regulation of Investigatory Powers Act 2000 – were discussed. The Blair government and senior police representatives outlined this powerful legislation, stating that it was absolutely necessary to extend the reach of law enforcement agencies to deal with the growing problem of terrorism.

This was even before the war on terror. The 9/11attacks in 2001 gave political urgency to, and popular justification of, arguments for greater surveillance and interception powers.

Drafting legislation is invariably a difficult and risky business. Unfortunately, no matter how well-intentioned a new statute might be, if a Bill is poorly thought-out, that intent can be confounded by the law of unintended consequences.

I have lost count of the battles the Society of Editors and other industry bodies have had to fight following the introduction of half-baked legislation.

But RIPA was different. From the start we knew it was flawed, but were given repeated and explicit assurances. We remained unconvinced and now, all these years later, we all know just how hollow those soothing noises really were.

Right from the outset, editors were concerned that RIPA would jeopardise the confidentiality of journalists’ sources.

One of the key battlegrounds concerns disclosure of ‘communications data’, like telephone numbers dialled, for example. Getting hold of who called whom was the motivation for the abuse of power by police investigating Plebgate. They knew there was no point in formally asking The Sun’s political editor Tom Newton Dunn who his source was, so they just used RIPA to obtain his phone records. Job done. Move along now. Nothing to see here.

The police were responsible for this distinctly dodgy snooping, but let’s not forget a host of others can use RIPA, too. As my dog-eared copy ofEssential Law For Journalists reminds me: “The Act allows not only the police but the Customs and Excise, the Inland Revenue, any of the intelligence services, and any other ‘public authority’ specified by the Secretary of State to demand such information on the basis of internal authorisation. The designated person can grant authorisation for others within the authority to engage in such conduct.”

So there you have it – any other ‘public authority’, and ‘internal authorisation’ – two perfect examples of loose drafting that have led to all manner of abuses, including people being snooped on by local authorities.

I am still reeling from the revelation reported by Press Gazette that the predominantly rural police forces of Suffolk and Norfolk, which share some departments, had used RIPA to make almost 4,000 applications for communications data in the past two years.

Press Gazette mounted a laudable campaign to try to establish the extent of police abuse of RIPA, and made freedom of information requests to constabularies across the country. The forces’ largely dismissive attitude to these questions speaks volumes.

Editor of The Spectator, Fraser Nelson, neatly sums it up: ‘It was the police, not the spooks, who wanted the power to imprison suspects for 90 days. And it’s the police who are pressing for extra snooping powers now,’ he wrote earlier this month.

‘Of course, the amount of data they have been able to seize has exploded as phones have turned into handheld computers. That has transformed the nature of police work. If Theresa May were to give police the power to walk into anyone’s home without a warrant from a judge and go through their itemised phone bills, we might say that Britain had become a police state – especially if the public had no means of finding out about, let alone appealing against, wrongful searches.’

And don’t let the proponents of RIPA fob you off with the argument about oversight from the investigatory powers tribunal. Nelson goes on to explain that this body won’t tell complainants why they were snooped on in the first place, and in 14 years it has upheld just 14 complaints. Given the huge number of RIPA applications made by police forces and others, that figure seems rather low.

Common sense has, belatedly, made an appearance. Justice minister Simon Hughes has reacted to the wave of criticism about misuse of RIPA, promising the law will be reformed.

On Sky News’s Murnaghan programme earlier this month, he said police use of RIPA had been ‘entirely inappropriate’, adding that in future they will have to apply to a judge for approval to access journalists’ phone records when carrying out a criminal investigation.

And that means informing journalists of the application, allowing them to contest it. Frankly, it is a measure that should have been in the Act in the first place.

***

And finally…

“The most useful thing about a principle is that it can always be sacrificed to expediency.”

William Somerset Maugham (1874-1965)

* Anthony Longden advises News Associates on journalism. He spent 20 years as editor and senior editorial executive in various regional companies in the UK, including Newsquest and Trinity Mirror.

He is a member of the Society of Editors’ parliamentary and legal committee, lobbying on behalf of the media industry on a wide range of issues.

He completed a three-year term as an editorial member of the Press Complaints Commission in 2012, and sat on its reform committee. Now a consultant and journalist, he advises the SoE and Alder Media, a London-based crisis PR firm. He judges the annual UK national and regional Newspaper Awards.