Police officers investigating the crimes of News of the World journalists have misguidedly looked to the Official Secrets Act for help
That coverage has exposed not only the hackers but also the incompetence of the police, and it is no doubt for that reason that Scotland Yard is overzealous in its latest attempt to discover their sources.
But it is doing so in a manner unauthorised by law, which requires protection for journalists' sources for the very good reason that they would dry up if informants promised anonymity were to be exposed and prosecuted.
This was established in the leading case of Bill Goodwin v UK, when a young reporter who courageously refused court orders to disclose his source was vindicated by the European court of human rights, which held that the watchdog role of the media would be imperilled if government agencies were able to force disclosure of sources in order to subject them to reprisals. The spectacle of Sarah Tisdall, the defence department clerk cruelly jailed for revealing the date of the arrival of cruise missiles at Greenham Common, should never be allowed to recur.
This attempt to get at the Guardian's sources is not only a blatant breach of the Human Rights Act and article 10 of the convention, but it appears to involve a misapplication of the Official Secrets Act. Section 4 of that act protects information which would impede the arrest or prosecution of offenders, and is appropriate for prosecuting police officers who sell intelligence or tip off criminals.
Scotland Yard apparently justifies its application for a draconian search order on the theory that the journalists may have "incited" officers to disclose confidential information to them. But the court of appeal in David Shayler's case made clear it would take an "extreme case" for a journalist to be guilty of incitement. There would need, for example, to be the offer of money, which is not alleged here. There is nothing to suggest that the information the journalists obtained was "damaging", a requirement for prosecution.
The allegation of incitement appears to be a device to obtain journalistic sources of a revelation that was overwhelmingly in the public interest. Indeed, it was in the international public interest, informing as it did the worldwide interest in the parliamentary select committee's invigilation of the Murdochs. Why, then, is this not a defence? Back in 1989, when the act was going through parliament, the Labour and Liberal opposition urged that a public interest defence should be incorporated, but the Thatcher government, hostile to the media after its embarrassment over Spycatcher, was implacably opposed. Clearly, the time has come for the coalition to make good its claim to support press freedom by making this belated amendment to the Official Secrets Act.
In the meantime, what can be done immediately about Scotland Yard's oppressive initiative? The government cannot avoid responsibility, as the attorney general is required under Section 9 of the act to approve all prosecutions, and it logically follows that he should intervene at the earliest stage to stop Scotland Yard preparing a misguided prosecution in a manner which breaches the law. The matter should be raised in parliament, much as the Speaker was condemned for allowing the unconstitutional Scotland Yard searches of Damian Green's office in the hope of finding documents implicating his source.
If the attorney general is inhibited from acting, and the police refuse to take advice from the DPP, then the matter will proceed to court. The journalists may be faced with the unhappy dilemma of having to consider whether to destroy their notes were the court to. If they have promised their source(s) confidentiality, no doubt they will do so and go to jail for contempt of court.
That will be an ironic tribute to the stupidity of Scotland Yard – a police service that fails to investigate criminal hackers but puts in jail the journalists who exposed them.
Geoffrey Robertson QC is co-author of Robertson and Nicol on Media Law (5th edition, Penguin)
But it is doing so in a manner unauthorised by law, which requires protection for journalists' sources for the very good reason that they would dry up if informants promised anonymity were to be exposed and prosecuted.
This was established in the leading case of Bill Goodwin v UK, when a young reporter who courageously refused court orders to disclose his source was vindicated by the European court of human rights, which held that the watchdog role of the media would be imperilled if government agencies were able to force disclosure of sources in order to subject them to reprisals. The spectacle of Sarah Tisdall, the defence department clerk cruelly jailed for revealing the date of the arrival of cruise missiles at Greenham Common, should never be allowed to recur.
This attempt to get at the Guardian's sources is not only a blatant breach of the Human Rights Act and article 10 of the convention, but it appears to involve a misapplication of the Official Secrets Act. Section 4 of that act protects information which would impede the arrest or prosecution of offenders, and is appropriate for prosecuting police officers who sell intelligence or tip off criminals.
Scotland Yard apparently justifies its application for a draconian search order on the theory that the journalists may have "incited" officers to disclose confidential information to them. But the court of appeal in David Shayler's case made clear it would take an "extreme case" for a journalist to be guilty of incitement. There would need, for example, to be the offer of money, which is not alleged here. There is nothing to suggest that the information the journalists obtained was "damaging", a requirement for prosecution.
The allegation of incitement appears to be a device to obtain journalistic sources of a revelation that was overwhelmingly in the public interest. Indeed, it was in the international public interest, informing as it did the worldwide interest in the parliamentary select committee's invigilation of the Murdochs. Why, then, is this not a defence? Back in 1989, when the act was going through parliament, the Labour and Liberal opposition urged that a public interest defence should be incorporated, but the Thatcher government, hostile to the media after its embarrassment over Spycatcher, was implacably opposed. Clearly, the time has come for the coalition to make good its claim to support press freedom by making this belated amendment to the Official Secrets Act.
In the meantime, what can be done immediately about Scotland Yard's oppressive initiative? The government cannot avoid responsibility, as the attorney general is required under Section 9 of the act to approve all prosecutions, and it logically follows that he should intervene at the earliest stage to stop Scotland Yard preparing a misguided prosecution in a manner which breaches the law. The matter should be raised in parliament, much as the Speaker was condemned for allowing the unconstitutional Scotland Yard searches of Damian Green's office in the hope of finding documents implicating his source.
If the attorney general is inhibited from acting, and the police refuse to take advice from the DPP, then the matter will proceed to court. The journalists may be faced with the unhappy dilemma of having to consider whether to destroy their notes were the court to. If they have promised their source(s) confidentiality, no doubt they will do so and go to jail for contempt of court.
That will be an ironic tribute to the stupidity of Scotland Yard – a police service that fails to investigate criminal hackers but puts in jail the journalists who exposed them.
Geoffrey Robertson QC is co-author of Robertson and Nicol on Media Law (5th edition, Penguin)
http://www.guardian.co.uk/media/2011/sep/16/threat-press-freedom
