Pia Sarma, Editorial Legal Director for Times Newspapers Limited at News UK, updates her recent blog on today's IOCCO recommendations

Update: IOCCO (February 4, 2015)

News UK welcomes the recommendation today that a judge should authorise applications under RIPA when police forces use the law to identify sources.

The recommendation came in a report by the Interception of Communications Commissioner’s Office following concerns raised across the industry that police forces were regularly using RIPA to identify journalists' sources. News UK and its titles told the Home Office that the proposed Codes of Practice failed to protect sources, asking for judicial oversight of the process. The campaign led to an inquiry overseen by the Interception of Communications Commissioner. Sir Anthony May, the current Commissioner, today agreed with the industry view and said the police forces had not given due consideration to freedom of speech.

The report confirmed the widespread concerns about the use of RIPA to target sources, revealing that 34 investigations had been sparked by suspicions that information had been leaked or supplied to journalists. Police forces have authorised 608 applications over the last three years in this way. The report said that the majority of those applications had been given the go ahead without consideration of the public interest or whether there was any risk to sources.

News UK hopes that not only will the recommendations be accepted by the Government in full but that notification will be given to journalists before an application goes before a judge. Only then will satisfactory protection be provided for this basic principle.

Previous Blog on RIPA: 

The Regulation of Investigatory Powers Act 2000, known as RIPA, has been around for fifteen years but it has only recently become clear that it carries worrying powers which are regularly being used by police to identify journalists’ sources. News UK and its titles have joined the industry in responding to a Home Office consultation on new proposals which the Government claims provide safeguards for journalism. We believe the proposals, in the form of Codes of Practice, fall far short of the protection required for sources.

News UK titles and journalists have much to be concerned about. Last year the political editor of the Sun was told that his phone records had been handed over to the police by Vodafone under a RIPA request when the police were investigating 'Plebgate'. RIPA allows the police to obtain an order to access information which may include journalistic material without informing the journalist, so he knew nothing about it until after it had happened.

The legislation also allows material to be handed over without any judicial oversight which means there is no opportunity to resist disclosure in court on the grounds of source protection, a principle long recognized in English and European law. The Contempt of Court Act specifically states that orders against journalists to disclose sources are only made in exceptional cases. In reality, Judges would be reluctant to make such an order and many journalists would rather go to prison rather reveal the identity of a source.

The free press which underpins our world-renowned democracy relies on the ability of ordinary people to come forward and talk to the press safe in the knowledge that their identities will remain confidential. The use of RIPA allows the police to bypass the safeguards which exist in other legislation such as the Police and Criminal Evidence Act 1984 and The Terrorism Act 2000 which require such requests to be heard before a judge.

The risk to source protection in RIPA is clear and the new Codes do not begin to address the problem. News UK and the newspaper industry are calling for stronger conditions to be set for applicants wanting to use the powers against journalists including mandatory referral to a judge and advance notice to the journalist and a right of appeal.

Until the underlying legislation itself is fully reviewed and the necessary protection put in place journalists’ sources will continue to fear exposure. The result will chill the free press and ultimately restrict the public's right to know.