For the police, the Plebgate affair has been resolved with Operation Alice. The police have disciplined a number of officers, dismissed four, and one has been sent to prison. The investigation continues to generate headlines. These focus on the police use of RIPA to obtain a journalist’s telephone data. The press are concerned that the police identified a contact without having to justify their decision to a judge or to alert the journalist.
Can the press be free if it is subject to the law?
The press have seen this as a direct attack on their freedom. They have stated that it will chill investigations because sources will hesitate before contacting them. If a journalist cannot guarantee confidentiality, how can sources trust them? We will leave aside the cases where journalists betray their sources for a better headline or for a better story. Here, the argument goes, the state power is being used against journalists.
Facts of the case or contested statements?
The following facts are uncontested.
- The RIPA is a valid law passed by Parliament that allows the police to obtain telephone data.
- The police obtained the telephone data as part of a criminal investigation.
- The police were acting in the public interest.
Confidential sources or who decides the public interest?
Although the press have stated they are concerned about confidential sources, this is not the underlying issue. The issue is who decides the public interest. The police can use the public interest against the journalist but the journalist has no way to contest their decision. Under RIPA, a police officer can obtain this telephone data if a designated senior officer counter signs the order. The decision is based on their view of the public interest to obtain the data. Here we see the issue and it puts the shoe on the other foot.
The police now act like the press and it pinches.
The police use the same process that a journalist and editor use when they decide to investigate someone. The journalist and editor can decide the public interest to investigate someone. They do not have to go to the judge to exercise that public interest. Unlike the journalists, the Police are legally required to record their decisions. They have to sign the order authorising the investigation and retain a record of that decision. In this way, the police are accountable to the Data Protection Act, the Freedom of Information Act, and the Surveillance Commissioner.
The rule of law favours the law abiding
We saw a similar public interest process at work when David Miranda was stopped last year. If either decision had to be argued before a judge, it would prejudice the investigation. If it was argued before a judge, the suspect could take steps to thwart its purpose. They could lie, or fail to cooperate fully, or delay to make the material meaningless.
Leveson taught us that the rule of law is the public interest expressed.
We see that when the public interest shoe is on the other foot, the journalists find that it is quite painful. Then again living under the law can be painful for those who had become accustomed to exercising the public interest in their own interests. Perhaps this is the unlearned lesson from Leveson.
 When the police obtain the data, they cannot know ahead of time that the information is a confidential source. They are using the information to identify someone who might turn out to be the confidential source. This is different from asking the journalist to turn over the identity of a confidential source.
 The behaviour of the News of the World towards its “sources” needs to be remembered to put the press protestations into context.
 One can contrast with the lack of records at the News of the World where no one knew why reporters were assigned to the Milly Dowler case and there appears to be no record of anyone authorising monies or decisions and all the News Corp employees had unreliable memories about the decisions. (see p. 208 and 237 Beyond Contempt) Peter Jukes 2014
 We have to remember that the News Corp employees took a conscious strategy to limit their compliance with the police requests for cooperation to the point where they thwarted the police’s ability to exercise their lawful powers. (See p.176 Dial M for Murdoch.) Tom Watson and Martin Hickman 2012