B e f o r e :
MRS JUSTICE CARR
MR FLINT QC
MS O'BRIEN QC
PROFESSOR ZELLICK CBE QC
| (1) News Group Newspapers Limited
(2) Tom Newton Dunn
(3) Anthony France
(4) Craig Woodhouse
|- and -
| The Commissioner of Police of the Metropolis
Jeremy Johnson QC and Jonathan Dixey (instructed by Directorate of Legal Services) for the Respondent
Robert Palmer (instructed by Government Legal Department) made written submissions for The Secretary of State for the Home Department
Hearing dates: 20 & 21st July 2015
Crown Copyright ©
"Clearly this was a serious matter that required the investigation to establish the extent of the suspected criminal conspiracy which appeared to have as its target an attempt to discredit a Cabinet Minister and potentially destabilise the Government."
"these were very serious allegations with serious consequences not only for Mr. Mitchell but for public confidence in the police that needed to be robustly investigated".
The statutory framework
"21 Lawful acquisition and disclosure of communications data
(1) This Chapter applies to -
(a) any conduct in relation to a postal service or telecommunication system for obtaining communications data, other than conduct consisting in the interception of communications in the course of their transmission by means of such a service or system; and
(b) the disclosure to any person of communications data.
(2) Conduct to which this Chapter applies shall be lawful for all purposes if -
(a) it is conduct in which any person is authorised or required to engage by an authorisation or notice granted or given under this Chapter; and
(b) the conduct is in accordance with, or in pursuance of, the authorisation or requirement.
(3) A person shall not be subject to any civil liability in respect of any conduct of his which
(a) is incidental to any conduct that is lawful by virtue of subsection (2); and
(b) is not itself conduct an authorisation or warrant for which is capable of being granted under a relevant enactment and might reasonably have been expected to have been sought in the case in question.
(4) In this Chapter "communications data" means any of the following -
(a) any traffic data comprised in or attached to a communication (whether by the sender or otherwise) for the purposes of any postal service or telecommunication system by means of which it is being or may be transmitted;
. . .
(6) In this section "traffic data", in relation to any communication, means -
(a) any data identifying, or purporting to identify, any person, apparatus or location to or from which the communication is or may be transmitted,
(b) any data identifying or selecting, or purporting to identify or select, apparatus through which, or by means of which, the communication is or may be transmitted,
(c) any data comprising signals for the actuation of apparatus used for the purposes of a telecommunication system for effecting (in whole or in part) the transmission of any communication, and
(d) any data identifying the data or other data as data comprised in or attached to a particular communication, but that expression includes data identifying a computer file or computer program access to which is obtained, or which is run, by means of the communication to the extent only that the file or program is identified by reference to the apparatus in which it is stored.
. . .
22 Obtaining and disclosing communications data
(1) This section applies where a person designated for the purposes of this Chapter believes that it is necessary on grounds falling within subsection (2) to obtain any communications data.
(2) It is necessary on grounds falling within this subsection to obtain communications data if it is necessary -
. . .
(b) for the purpose of preventing or detecting crime or of preventing disorder;
. . .
4) Subject to subsection (5), where it appears to the designated person that a postal or telecommunications operator is or may be in possession of, or be capable of obtaining, any communications data, the designated person may, by notice to the postal or telecommunications operator, require the operator -
(a) if the operator is not already in possession of the data, to obtain the data; and
(b) in any case, to disclose all of the data in his possession or subsequently obtained by him.
(5) The designated person shall not grant an authorisation under subsection (3), (3B) or (3F), or give a notice under subsection (4), unless he believes that obtaining the data in question by the conduct authorised or required by the authorisation or notice is proportionate to what is sought to be achieved by so obtaining the data.
(6) It shall be the duty of the postal or telecommunications operator to comply with the requirements of any notice given to him under subsection (4)."
The First and Second Authorisations
. . .
This is a further application made in relation to Operation Alice.
This matter under investigation is that of misconduct in a public office whereby it is suspected that police officers have disclosed information to the media.
The matter has attracted substantial national media attention and has resulted in the resignation of MP Andrew MITCHELL. The media continue to show a keen interest in this matter since the arrest of PC Keith WALLIS.
A police email dated the 19th September has been leaked to the media and the origin of this disclosure is under investigation by DPS SI.
This request relates to The Sun journalist Tom NEWTON-DODD. Mr NEWTON-DODD contacted the DMC on the 20th September at 1000HRS requesting further information into the apparent verbal altercation between police and MP Andrew MITCHELL. The original incident occurred on the 19th [September] at 1935 HRS. Mr NEWTON-DODD has been informed of this incident prior to the police making any disclosures around it. He is potentially the first journalist to be contacted around this incident.
This application is necessary as the results may indeed show that the original leak came from an [alternative] source other than the police. This of course would direct any further potential investigation strategies set by the SIO.
. . .
. . .
Full consideration has been given to the Human Rights Act, in particular Article 8 (Right to a Private Life) and Article 10 (Freedom of Expression).
Misconduct in a public office is a serious offence and in this case could cause serious harm to the reputation of the MPS. This matter has gone to the highest levels and it is essential that damage limitation is undertaken. The intrusion into the privacy of potential subjects identified has been considered, but deemed justified when balanced against the seriousness of the allegation (if proved) of misconduct in a public office.
With regards to this specific allegation, full consideration has been given to the examination of a journalist['s] mobile phone. This application is now made as all other lines of enquiry have been exhausted around suspected persons.
The original incident occurred on the 19th September 2012 and the request for data is from that day until the present. This application is proportionate as the date requested will show whether a police officer has made contact with a journalist, or indeed whether a journalist has approached police for information. The application also seeks to determine whether the 'leak' came from an alternative source other than the police.
Cell site data is requested in order to ascertain the whereabouts of the subjects at particular times relevant to the investigation. This may prove useful when mapping the whereabouts of the subjects and proving any 'face to face' meetings. GPRS data is requested as this may prove useful in providing call site details if the user has a smart phone and accesses the internet at the location, even if a telephone cell was not made.
If data and subsequential subscribers provide what we are looking for then it will provide investigators with further lines of enquiry and enable the DPS to make further arrests of police officers involved in the conspiracy to commit misconduct in a public office. Consequential subscriber data is also requested. Prior authorisation assists the enquiry by reducing the need for multiple applications and [therefore] is less time consuming. All data obtained will be thoroughly researched before being submitted for consequential subscriber checks.
13 Collateral Intrusion
. . .
Incoming & Outgoing call data is likely to include a lot of family and friends numbers; it may also include details of high profile people including those whom have spoken to the press expecting journalistic privilege. Full consideration has been given to this by the SIO the only details of relevant to this application are those of interest to the original enquiry.
There are several numbers already known to this investigation and will be easily identifiable. There will be a level of intrusion if subscribers need to be carried out on numbers that are unidentified and there is likely to be a relatively large amount of data returned due to the time periods requested. The level of intrusion will be in order to either prove or disprove the involvement in the offence and also show if any other leaks have been made to journalists or other media sources.
All data will be fully researched and any data relating to an innocent party will be disregarded and will not be subject to any further scrutiny.
14 Results Timescale
. . .
This is an urgent application as we need to identify other offenders and preserve evidence in relation to this investigation."
"I have read the attached application. I authorise the methodology requested. This is necessary under the Act S22(2)(B) on this occasion to detect crime. I am [satisfied] with the proportionality test. There is no less intrusive way to gather the information, intelligence and evidence required to prove or disprove the allegations at hand. This is a high profile investigation seeking evidence relating to corruption between the MPS officers and the press that resulted in the resignation of a Government Minister. I am satisfied with how any collateral material will be managed and dealt with in line with the codes. I also note the reference made to articles 10 and 8 of the HR Act and am satisfied that they are addressed in sufficient manner by the investigation team."
The Third Authorisation
This matter under investigation is that of misconduct in a public office whereby it is suspected that police officers have disclosed information to the media .. A police email dated the 19th September has been leaked to the media and the origin of this disclosure is under investigation by the DPS-SI. It remains unknown how the media obtained the original email. Police are aware that Craig WOODHOUSE of The Sun Newspaper spoke to Federation Representative PC John TULLY requesting further information about the incident on the 19th September. This contact was made prior to PC TULLY being contacted by the journalist Tom NEWTON DUNN who went on to say that he had a copy of the police email. "
. . .
. . . The original incident involving a DPG officer and Mr. Andrew MITCHELL [occurred] on the 19 September 2012 however it is now known that there was a similar incident the previous evening at the gates of Downing Street. This request for data is [from] 18th September for one week only. The application also seeks to determine whether the leak came from an alternative source other than the police. The dates selected will assist in determining whether there was a conspiracy [against] MP Andrew MITCHELL which potentially began on 18th September when it is alleged that Mr MITCHELL had his first "run-in" with police officers at the gates of Downing Strret. "
14 Result(s) Timescale
. . . This is an urgent application as we need to identify other offenders and preserve evidence in relation to the investigation.."
"as with other delayed Alice applications the team have recently confirmed this is a valid line [of] enquiry for them and as such [the] data is still required".
"I have read the attached application. I am aware of operation Alice it holds a high media profile and is a significant critical incident within the MPS. Officers leaking stories regarding of members of parliament not only undermines the relationship between the Police and Parliament but also the confidence and trust of the public we serve. I believe this data is necessary, it supports the strategy of the SIO in identifying the extent of the misconduct and by whom it was committed, importantly whether this was an act of conspiracy focused against a member of parliament to oust him, [ultimately] undermining the rule of law (S.22(2)(b)). I believe the application is proportionate it is the only way to achieve the data required whilst not alerting as yet suspects unknown. It will provide the required evidence and all other avenues to manage this have been considered by the IO. I note the comments regarding A10 HRA and I am satisfied they are appropriately considered. This request is authorised."
The Fourth Authorisation
. . .
Operation Alice is an Investigation into information leakage to the press. At this time, PC James GLANVILLE and PC Gillian WEATHERLEY have been arrested for misconduct in a public office. This application seeks to determine whether any other police officers are involved in information leakage.
The Sun newspaper is currently subject to a civil claim with MP Andrew MITCHELL with regards to the 'Plebgate' incident.
In The Sun's defence statement, it is claimed that a second caller made a call to their hotline purporting to be a tourist who witnessed the incident. She alleges that she heard Mr MITCHELL say 'You're fucking morons you think you run the country, well you don't.' The female did not leave any contact details and he did not accept any payment according to The Sun.
The Op Alice Team know through viewing CCTV that there was not a female tourist present during the incident at the gates of Downing Street on the 19th September 2012.
This application is necessary to determine the identity of this female and thus determine whether the female is in actual fact a serving member of the MPS.
. . .
. . .
It has now come to light that there was in fact a further 'tip-off' to the press by an unknown female. The identity of this female is currently unknown and it is believed that the female is in fact a serving police officer she has given information that was known to just a handful of people.
Full consideration has been given to the Human Rights Act, in particular Article 8 (Right to a Private Life) and Article 10 (Freedom of Expression). The allegation that a number of police officers have conspired together to reveal the incident involving MP Andrew MITCHELL to the press is very serious. The allegations made by Mr MITCHELL continue to be placed under scrutiny in the press. Both the Prime Minister and the MPS Commissioner have commented that this issue must be resolved as it brings into doubt the integrity of not only the individual police officers concerned but the MPS itself and with it, public confidence in the organisation.
This application also considers journalist privilege. The intrusion into the privacy of potential subjects identified has been considered, but deemed justified when balanced against the seriousness of the allegation (if proved) of misconduct in a public office. All other enquiries that could reveal the identity of the female have been exhausted phone records of three other journalists have been examined and no other police officers have been identified.
The Operation Alice have been given specific information around the date and times that the call was made and this application will request incoming data on the 20th September between 0800-0845HRS.
13 Collateral Intrusion
. . .
Incoming call data to a press phone line may include details of general members of the public as well as high profiled persons. In any case, it is highly likely that whoever contacted this number is expecting journalistic [privilege]. Full consideration has been given to this by the SIO the only details of relevance to this application are in relation to the one female caller. Consequential subscribers checks should assist the investigation in identifying this person.
It may well be that some of the numbers identified are already known to this investigation and these will be easily identifiable. There will be a level of intrusion if subscribers need to be carried out on numbers that are unidentified, this enquiry does need to be completed in order to eliminate any innocent party from the investigation. A request for 2 hours worth of incoming call data should help to minimise any intrusion.
All data will be fully researched and any data relating to an innocent party will be disregarded and will not be subject to any further scrutiny. There will be no additional checks completed on males identified as calling the helpline unless they are identified as being police officers.
All data that is obtained will be stored on a secure system with restricted access and will continually be reviewed by the IO/SIO throughout the investigation in accordance with CPIA guidelines."
"I have read the attached application and the notes of SPoC. I am aware of operation ALICE, I am not the SIO and have no influence in strategy or tactics. Operation ALICE is extremely critical. The subject matter has undermined the faith and confidence the public has in the Police and Parliament. This application is requesting information from the hotline of The Sun newspaper. My belief is that this number is set for use by persons who wish to whistle blow to the press and there is a statement of confidentiality expected by those callers. The call in question is purported by The Sun to belong to a white female tourist. Information in this application identifies that at the time the information gleaned would have taken place there was no such persons visible on the CCTV which covered the event in question which brings into doubt the legitimacy of the caller. From other applications and my awareness of this case a Police officer has already purported to be an innocent passer by to pass sensitive information. If similar has occurred here that level of privacy is reduced and journalistic privilege does not apply. The application is thus necessary as it will identify whether such call took place at the time specified and potentially by whom (S22 (2) (b)). The fear that it is by a Police Officer with criminal motive or potentially a fabrication of defence by The Sun in the civil claim are real possibilities. I note the comments in box 12 the comments relating to proportionality. Information given was known at that time to only a handful of people thus increasing the suggestion that crime has taken place and lie made to The Sun. This further erodes the A8 rights of the caller and that access to A10 and protection through journalistic privilege. I am still cognoscente that the number from which data is being requested is a hot line The comments of the applicant regarding CI are concerns of mine also. I believe the actions described regarding management of the data and numbers provides protection for legitimate callers whilst providing a plan to identify numbers for further research that may be suspect. I note close supervision of the SIO described in box 12, I have read the comments relating to management of the data and compliance with CPIA, revelation to only those that need to know and disclosure only when required by law. The timescales requested, a 90 minute period at the target time, further protects the rights of innocent callers whilst providing a adequate window of opportunity based on the intelligence at hand to discover the identity of the caller. I believe this application is proportionate, it is the least intrusive methodology available to discover the true identity of the caller and thus prove or disprove the involvement of a serving Police officer as suspected. I authorise the acquisition of the data as described by the SPoC in box 17."
(1) Under the jurisprudence of the ECtHR judicial pre-authorisation is required for the lawful acquisition of communications data which might reveal a journalist's source (Submission 1);
(2) The authorisations under s 22 were not necessary nor proportionate in a democratic society because:
(a) there were other alternative measures which could have been adopted to obtain the communications data, namely an application under the Police and Criminal Evidence Act 1984 ("PACE") or for a Norwich Pharmacal order (Submission 2(a));
(b) there was a failure to make proper prior enquiries of the journalists before resorting to an authorisation (Submission 2(b));
(c) there was a failure to complete other investigations before resorting to an authorisation under s 22 (Submission 2(c));
(d) there was "no pressing social need" (Goodwin v United Kingdom  22 EHRR 123 at paragraph 140) for the authorisation, because a sufficiently grave offence had not been established and the evidence was inconsistent with a malicious conspiracy to damage Mr. Mitchell (Submission 2(d);
(e) the measures taken were disproportionate in their extent in time (Submission 2(e));
(f) The authorisations were supported by inadequate reasoning (Submission 2(f)).
"The first, and most straightforward, question is who decides whether
or not a claimant's Convention rights have been infringed. The answer is that it is the court before which the issue is raised. The role of the court in human rights adjudication is quite different from the role of the court in an ordinary judicial review of administrative action. In human rights adjudication, the court is concerned with whether the human rights of the claimant have in fact been infringed, not with whether the administrative decision-maker properly took them into account."
In Denbigh High School at paragraph 30 Lord Bingham said:
"The domestic court must now make a value judgment, an evaluation, by reference to the circumstances prevailing at the relevant time Proportionality must be judged objectively, by the court."
Necessity and proportionality
"it is relevant to the balancing exercise to have in mind the gravity of the activities that are the subject of the investigation, the benefit likely to accrue to the investigation and the weight to be accorded to the need to protect sources. .. the judge was entitled to conclude on the material before him that there were reasonable grounds for believing that the material in the possession of the claimant was likely to be of substantial value to the investigations."
The requirement for judicial authorisation
(1) Goodwin which reiterated that protection of journalistic sources is one of the basic conditions for press freedom, so that a measure cannot be compatible with Article 10 unless it is justified by an overriding requirement in the public interest;
(2) Recommendation No.R (2000) 7 of the Committee of Ministers of the Council of Europe adopted on 8 March 2000 which set out the principle that there should be clear and explicit protection in domestic law and practice of the right of journalists not to disclose information identifying a source;
(3) Voskuil v Netherlands  EMLR 14 465 in which the Court at paragraph 65 stated:
"Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest (see Goodwin v. the United Kingdom, judgment of 27 March 1996, Reports of Judgments and Decisions 1996-II, p. 500, § 39; more recently and mutatis mutandis, Roemen and Schmit v. Luxembourg, no. 51772/99, § 46, ECHR 2003-IV)."
(4) Sanoma Uitgers v Netherlands  EMLR 4, a decision of the Grand Chamber on a case concerning an order made by an investigating officer for the surrender of journalistic material, which contained the following general statements of principle:
"(82) For domestic law to meet these requirements it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise.
(88) Given the vital importance to press freedom of the protection of journalistic sources and of information that could lead to their identification any interference with the right to protection of such sources must be attended with legal procedura safeguards commensurate with the importance of the principle at stake.
(90) First and foremost among these safeguards is the guarantee of review by a judge or other independent and impartial decision-making body. The principle that in cases concerning protection of journalistic sources "the full picture should be before the court" was highlighted in one of the earliest cases of this nature to be considered
by the Convention bodies (British Broadcasting Corporation, quoted above (see  above)). The requisite review should be carried out by a body separate from the executive and other interested parties, invested with the power to determine whether a requirement in the public interest overriding the principle of protection of journalistic sources exists prior to the handing over of such material and to prevent unnecessary access to information capable of disclosing the sources' identity.
(92) Given the preventive nature of such review the judge or other independent and impartial body must thus be in a position to carry out this weighing of the potential risks and respective interests prior to any disclosure and with reference to the material that it is sought to have disclosed so that the arguments of the authorities seeking the disclosure can be properly assessed. The decision to be taken should be governed by clear criteria, including whether a less intrusive measure can suffice to serve the overriding public interests established if it does not.
(5) Telegraaf Media Nederland v Netherlands (2012) 34 BHRC 193, a case of targeted surveillance of a journalist in which the power was exercised by the executive, in which the ECtHR found that the law did not provide adequate safeguards appropriate to the use of surveillance against journalists with a view to discovering their journalistic sources.
(1) the test of sufficient safeguards is authoritatively laid down by Lord Bingham in R (Gillan) v Commissioner of Police of the Metropolis  2 AC 307 at paragraph 34 as follows:
"The lawfulness requirement in the Convention addresses supremely important features of the rule of law. The exercise of power by public authorities, as it affects members of the public, must be governed by clear and publicly accessible rules of law. The public must not be vulnerable to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than that for which the power was conferred. That is what, in this context, is meant by arbitrariness, which is the antithesis of legality. This is the test which any interference with or derogation from a Convention right must meet if a violation is to be avoided."
(2) Chapter 2 of Part 1 of RIPA prescribes clear and publicly accessible rules of law which prohibit interference with Convention rights on an arbitrary basis;
(3) There is no requirement for explicit legal protection to protect journalists' sources, provided there are safeguards to protect against arbitrary interference, which there are;
(4) Article 10 does not require prior judicial authorisation in a case concerning journalists' sources, as explained by Laws LJ in R (Miranda) v Secretary of State for the Home Department  1 WLR 3140 at paragraph 88, a point which was adopted by this Tribunal, but in a different context, in Liberty (National Council of Civil Liberties) v GCHQ and others ("Liberty/Privacy")  3 All ER 142 at paragraph 116.
"The Court considers that, even if unproductive, a search conducted with a view to uncover a journalist's source is a more drastic measure than an order to divulge the source's identity. This is because investigators who raid a journalist's workplace unannounced and armed with search warrants have very wide investigative powers, as, by definition, they have access to all the documentation held by the journalist "
"The Court emphasises that the right of journalists not to disclose their sources cannot be considered a mere privilege to be granted or taken away depending on the lawfulness or unlawfulness of their sources, but is part and parcel of the right to information, to be treated with the utmost caution."
Section 6 of the HRA
"(b) In the case of one or more provisions of, or made under primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions."
"A simple illustration of section 6(2)(b) in operation is, of course, where primary legislation confers a power on a public authority and where a decision to exercise that power (or, as the case may be, not to exercise it) would in every case inevitably give rise to an incompatibility. R v Kansal (No 2)  2 AC 69 was just such a case and in such situations it can readily be understood why section 6(2)(b) applies. Otherwise, instead of "giving effect to" a provision conferring a power, the public authority would have to treat the provision (in cases where not to exercise it would give rise to incompati89bility) as if it imposed a duty or, in cases where any exercise of the power would give rise to incompatibility (as in Kansal (No 2) itself), would have to abstain from ever exercising the power. In either instance, it is obvious, Parliament's will would be thwarted."