Whistleblowers
and press 'threatened by proposed new police powers'
Investigative
journalism at risk from government plan to weaken protection for
writers and their sources, warn campaigners
13
February, 2013
The
government is proposing to make it easier for the police to seize
confidential material from journalists, it emerged on Wednesday
night. Legal experts warned that the plans risked trampling on
long-standing protections from the state.
The
Home Office said it accepted recommendations from Lord Justice
Leveson's inquiry into the media for consultation over changes to
laws governing police demands for material from news organisations
and reporters.
During
the inquiry, the Metropolitan police urged Leveson to weaken
protection for journalists from police searches and demands to hand
over confidential material gained through their work.
Under
the new proposals, now open to consultation, a judge would still need
to approve such police requests, but the detectives would no longer
have to first show they had tried to get the material from other
sources.
The
plans would also weaken protection for confidential material from
whistleblowers. Journalists would have to show the material did not
come from people who had breached confidentiality agreements or who
may have committed crimes in revealing the information to a reporter.
Such material if handed over could reveal the identity of sources.
Currently,
the protections for journalistic materials are contained in the 1984
Police and Criminal Evidence Act (Pace).
Anti-censorship
campaigners warned that the proposed changes could damage
investigative journalism and the public's right to know. A leading
barrister warned of a potential breach of European human rights law.
Gavin
Millar QC, an expert in media law, said: "These amendments would
make it much easier for the police to get orders requiring production
of journalistic material. The police would not even have to try to
get the evidence in other ways.
"Journalists
will only be able to claim confidentiality by testifying that the
source was free to give them the material. This will be impossible
for most public interest disclosures by whistleblowers."
The
logic for any changes is alleged abuses by News International as they
tried to hamper the first Met police investigation into phone hacking
in 2006.
Police
believe the Murdoch-owned media company pretended to be assisting
their inquiry knowing the "veneer of co-operation" would
mean a judge would not grant police orders requiring the News of the
World to hand over material.
The
police also feel that provisions in Pace protecting journalistic
material from seizure was abused by News International to stop
material relating to the illegal hacking of phones being handed to
detectives.
Leveson
called for the review of journalist protection despite media
submissions claiming that they were a "Trojan horse" that
could remove protection from material such as stolen CDs used by the
Daily Telegraph for its reporting on MPs' expenses.
In
his report Leveson wrote: "One of the results of the legislation
is that, in protecting what it is entirely appropriate to protect,
there is a risk that behaviour which deserves no protection will not
be uncovered.
"It
makes it that much more difficult to obtain evidence to support (or,
indeed, to undermine) a complaint, making much more remote the
prospect of prosecution even where the true facts, if they were
known, would demonstrate that such a prosecution was entirely
merited."
Leveson
warned that journalists should respect the protection, and not abuse
it by "invoking it to cover up that which cannot be justified".
Matthew
Ryder QC said: "The risk is a lower standard of protection will
allow the police to obtain information from journalists that is
exactly the kind of information that needs protection from the
police.
"There
are measures to stop the police trawling through journalists'
material or documents revealing sources. Once you start unravelling
that, even with the best intentions, the fundamental protections
journalists need to perform the most vulnerable part of their job is
lost."
Millar
added: "The proposals are wholly incompatible with press freedom
principles long established under European human rights law."
In
a response to Leveson, to be published on Thursday, the Home Office
said: "The consultation exercise will specifically consider the
potential impact of the recommended change to section 11(3) of Pace
on the protection of journalistic sources."
Padraig
Reidy, of Index on Censorship, said: "These measures, if
implemented, could have a real effect on journalism, free speech and
the entire climate of freedom in the UK.
"They
grievously undermine the concept of confidentiality between reporters
and sources that is essential for investigative journalism."
In
its response the Home Office accepted Leveson's proposal that senior
police officers have to record contact with the media. Some worry
this will also hamper whistleblowers.
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