On 01 September 2014, Tom Newton Dunn, the Political Editor of the Sun, was informed that the police had obtained his phone records to identify the police whistle-blower who had contacted him in relation to the Plebgate Scandal. Mr Newton Dunn only coincidentally found out his phone had records had been requested and used on the publication of the Operation Alice Closing Report.

Several questions spring to mind; how did the police obtain this information? Are the police entitled to access and use telecommunications data from a journalist’s phone so as to identify his sources? Whatever happened to journalistic privilege?

The protection of journalists’ sources is a fundamental right around the operation of a free press. In statute, this is protected by the Contempt of Court Act and Article 10 of the Human Rights Act. The obtaining and disclosure of journalistic material is governed by the Police and Criminal Evidence Act (PACE), which obliges the police to go to court and ask for a judge’s permission to get records belonging to a journalist. The journalist is then notified and is able to attend court and resist disclosure of such records to a third party.

In the present scenario, the Met was able lawfully to circumvent this procedure by merely completing a request form under the Regulation of Investigatory Powers Act 2000 (RIPA) and sending it to Mr Newton Dunn’s mobile phone provider. The telephone company apparently has no discretion to resist such a RIPA request from the police. There is no need for a warrant; the information is seemingly readily accessible.

The information provided by the telephone company is not the actual content of the calls themselves but is the phone’s metadata. This is nonetheless extremely informative as it includes a list of all calls made and received, the timings and duration of the calls, and even the geographic location of the telephone at the time the calls were made.

A senior officer (independent from the inquiry) can only approve the requisition of data under RIPA if they believe it is “necessary” under certain grounds (which are very broad) and “proportionate”. The officer must record their considerations at the time. The request is secretive; the subscriber is not told that a RIPA request has been made or that his metadata has been accessed. There is currently no definitive way of finding out whether a RIPA request has been made and also (if ever known about!) no way of challenging such a request.

Any “persons designated” can make such RIPA requests; this includes the Police and Intelligence Service. In addition, the Secretary of State has the power to designate any public authority, a power that has been exercised in respect of a significant number of state agencies, from the Department of Transport to the Gambling Commission. 

Given the grave consequences for individuals’ privacy, one would hope that RIPA requests are seldom made, but this is not the case. It is thought that last year between 100,000 to 500,000 were made. In an attempt to grasp a clearer picture of some numbers, every police force in the UK has recently been asked by Keith Vaz, the chairman of the Commons Home Affairs Select Committee, to provide the government with details of RIPA requests made. How effective this will be is questionable as a number of police forces have already rejected the request either for practical reasons or on grounds of national security. 

Understandably, journalists are uneasy about this covert intrusion into their records. The Bureau of Investigative Journalism has filed a case with the European Court of Human Rights seeking a ruling on whether the UK government’s polices on the interception of communications are a breach of Article 10.

In the meantime, Theresa May has announced that "we are revising the relevant code to make clear that specific consideration must be given to communications data requests involving those in sensitive professions, such as journalists."

A draft code is due to be published in the autumn and should be the subject of an (overt) public consultation. It cannot come too soon.