Joint Committee On Human Rights Minutes of Evidence

Annex I

Letter from the Society of Editors to Mr J Woodcock, Police Leadership and Powers Unit, Home Office


  Thank you for inviting the Society's comments on the consultation paper.

  As the Home Office is aware, the media is concerned about the extent to which statutory and private bodies can obtain or attempt to obtain access to journalistic material in circumstances which can compromise protection of confidential sources, compromise the safety of the journalists reporting events, reveal unpublished material or provide grounds for preventing publication. Given its past experience, the Society fears the way that the new powers might be deployed against the media.

  To explain why we have such anxieties, it may be helpful to outline some of the recent representations and court actions, which the Society and the media have pursued in attempts to prevent new inroads into press freedom:

    —  new legislation, such as the Terrorism Act 2000 and the RIP Act 2000 where we made clear our opposition to the failure to provide express safeguards against enforcement authorities' power to require information from journalists, access to journalistic material and details of journalists' contacts and confidential sources;

    —  on the scope of production orders sought by the police and other law enforcement bodies';

    —  the readiness of some judicial authorities to grant such orders, unless the media is prepared to pursue applications for judicial review or other remedies to the highest courts including, ultimately, the European Court of Human Rights—although few legislative safeguards have resulted to improve protection of freedom of expression and press freedom, including better protection of sources;

    —  the ease with which even such legislative safeguards as exist can be by-passed, for example, PACE seizure safeguards are reduced in effectiveness by its provisions enabling reliance on the fact that search warrants could have been authorised by earlier legislation or the police are able to enter the premises lawfully and then seize material without invoking the PACE production order procedures and safeguards; and

    —  failure of existing legislation to give proper protection to confidential sources.

  The media has also been concerned by related matters, which threaten press freedom, and which the consultation paper's proposals might achieve by another, lawful route. The media's recent and past problems include attempts by the Government, law enforcement agencies and private bodies:

    —  to prevent publication by injunction or seek other means to control media publication;

    —  to find out the identity of sources;

    —  to obtain access to and delivery up of journalists' notes, background information, correspondence and contact details;

    —  to force deletion of material from media's computer systems;

    —  to obtain access to such media computer systems to check that this had been done; and

    —  to obtain sight of articles prior to publication, with the intention of pre-vetting material.

  The Home Office will therefore understand our main concern is the prevention of any changes to the powers of police and other enforcement authorities under the wide range of legislation mentioned in your paper which might, directly or indirectly, intentionally or unintentionally, give those law enforcement agencies new and wider powers against the media. Under the guise of removing material from journalists' private premises or from media offices in order to determine and separate out which material can and cannot lawfully be seized, we anticipate that such powers might well be exploited to gain access to journalistic material, to discover sources, to read unpublished background material or information which is about to be published and stop publication.

  The Government has to recognise the restraints upon freedom of expression posed by the vulnerability of the media and its sources to the mere existence of any power for any act of removal and the act of examination. The media has explained on many occasions that inability to offer protection of confidentiality of sources can inhibit the media's ability to investigate and report and ultimately, freedom of expression. It is not simply the execution of such action under the power, even if the material is eventually deemed to be excluded or special procedure material or cannot be used in evidence or for the purposes of the investigation.

  It would be more appropriate, in the light of the Human Rights Act 1998, to review whether there are grounds for giving greater legal protection to journalistic material and protection of sources and improve the legal safeguards against state access to such material. For example, changes might be made both to improve the PACE production order procedure and criteria for grant of production orders and to limit the grounds on which warrants can be granted for search and seizure of excluded or special procedure material. Changes could also be introduced to limit the seizure of such material once police are lawfully on the premises (eg by extension of s19 protection to journalistic material as well as material subject to legal professional privilege). Improvements could be made which increase the scope for the media to challenge the issue of warrants, which give access to journalistic material. Such changes would be compatible with Articles 8 and 10 of the European Convention of Human Rights. We note that the consultation paper does propose that all disputes about the seizure of material should be determined through the application to a circuit Judge. However, it does not make clear by whom the application could be made and whether hearings will be inter partes. Even more importantly, the paper does not state whether the Government intends to remove rights of legal action and remedies currently available to those who have been subjected to unlawful law enforcement action. This would obviously be unwelcome.

  On the specific proposals put forward in the consultation paper, the Society's view is that it is vital that the police should not lawfully be able to examine off or on the premises any material which journalists or media companies claim is legally privileged, excluded or special procedure material.

  We doubt that there would be much scope for the law enforcement authorities to dissent from the media's assertions, nor that the effect of any such assertions in their dealings with journalists or media companies or others would actually hamper the performance of their law enforcement functions or exercise of their law enforcement powers or investigations.

  In the absence of such protection, we fear that new statutory powers will be used to obtain access to material, which cannot currently be obtained via production orders or search warrants under PACE or other legislation.

  We welcome the intention to include safeguards and, in particular, that the consultation paper helpfully proposes that the police could not conduct any examination of excluded or special procedure material off the premises without consent and recourse could be made to a circuit Judge in the event of any difficulty.

  However, it would be helpful to have some clarification. First, we would like confirmation from the Home Office that introduction of such a power would not in itself legitimise examination of journalistic material, on private or company premises, which the police are not currently lawfully entitled to carry out.

  Second, we would like express confirmation that the Home Office intends to exclude fully the media and journalistic material from the scope of the new powers.

  If there is to be any procedure for resolving difficulties, then this ought not in itself directly or indirectly legitimise enforcement authorities' access to material held by journalists or by media companies, which currently would not be lawfully available or obtainable.

  Given that any dispute would largely concern whether material was or was not legally privileged material or journalistic material including excluded or special procedure material, resort to an appropriate court might indeed be necessary to prevent any access to or removal of, such privileged or journalistic material. However, such protection would then only be effective if the media received prior notification in good time, had the right to be represented as a party to oppose any such application for removal or seizure and had appropriate fast track rights to appeal further or make applications for judicial review of any order or decision whereby access or removal was sanctioned, prior to any such removal or seizure. Such protection would be more effective prior to any attempt to remove the material, whether that removal was intended to enable consideration as to whether the material could be seized or in dubious pursuit of an over wide warrant. Law enforcement authorities ought to remain vulnerable to actions for damages and trespass if they remove or formally seize journalistic material, by warrant or otherwise, in circumstances in which they had no right to remove or seize such journalistic material

  It is also important that any safeguards for journalistic material and the media proposed by any new legislation cannot be evaded simply by provisions which allow their bypass in cases of urgency.

  The Society opposes the creation of the power proposed at point 3. It would allow the state and its enforcement agencies in practice to by-pass easily such legal protection for journalistic material as currently exists.

  The consultation paper itself makes clear that the proposal would give the police power to seize legally privileged, excluded or special procedure material and all other material that they would not otherwise have power to seize and retain. They would only have to consider that the material could not be reasonably separated from the material that they were entitled to seize and retain, without damage to the evidential value or integrity of that latter material. The consultation paper makes clear that this is particularly relevant to inextricably linked material held on computer media, if only to prove that material was created upon a certain date.

  The introduction of such a power would nullify any current protection for journalistic material. It could virtually enable law enforcement authorities to seize and retain freely all journalists' notes and information covered by their investigations, including any material that disclosed confidential sources, draft stories being worked up, the legal advice given by their lawyers and supporting material prior to and subsequent to publication, access to the media's computer systems to data bases of unpublished material, to text of stories prior to publication. In an extreme case, there is little to prevent the seizure, prior to publication, of the entire contents of special sections or supplements to appear in the next edition of the newspaper, or entire text of other publications, or programme which is to be broadcast.

  Given previous attempts by the government and police to obtain access to the media's material, we do not doubt that the police and other state enforcement agencies would, in practice, actually seek to use the new power as a means to discover sources or view material prior to publication or might even seek to prevent its publication directly or indirectly by seizure and retention of the unpublished or untransmitted material itself or supporting material which the media would require to substantiate anything which is broadcast.

  The existence of a dispute procedure, although helpful, does not provide sufficient safeguards. There is no indication within the paper as to what or when or by whom such applications might be made. Any dispute procedure is unlikely to be effective unless the subject of the proposed search, prior to search and seizure, can activate or participate in it. Even then, its usefulness for the media would be diminished if the only matters considered by the Judge were to relate to questions concerning whether material was or was not inextricably linked, without reference to freedom of expression issues which meant that material should not be seized by the police or other enforcement authorities where they had no other legal power to obtain it and in contradiction of special legal protection as has been conferred upon privileged or journalistic material. There could well be additional problems because the media would be forced to disclose that certain material existed in order to resist the seizure either of that or related material.

  Thus even if there is a procedure for resolving disputes about the applicability of this new power by reference to a circuit Judge, such an application procedure does not address the real concern of the media about the creation of a new power to enable lawful seizure and retention of journalistic or privileged material which, under current legislation or at common-law, cannot currently be lawfully obtained.

  No convincing legal or other justification for extension of the powers of a wide range of law enforcement authorities in this way has really been put forward. The consultation paper does not deal with this in any detail. The Society has previously expressed its concerns about somewhat vague references to the development of computer technology being put forward as the justification for proposals for extension of law enforcement powers and consequent specific and potentially severe inroads into citizens' rights including those exercised by the media, not least those protected by Articles 6, 8 and 10 of the Convention on Human Rights.

  We do welcome the Home Office's recognition of the potential impact of these proposals for the media and very much appreciate the opportunity to put forward these preliminary views for consideration. We would welcome any proposals, assurances and clarification that can be given which would address some of the concerns outlined above. It would be helpful if the Home Office could ensure that the media and media organisations (including organisations and companies not included on the original consultation list) are involved in more detailed discussions on any developments, including draft legislation, before any Bill is presented to Parliament.

Santha Rasaiah

Chief Legal Adviser, Society of Editors

24 October 2000

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