The High Court has quashed an order obtained by the Metropolitan Police in a private court hearing that allowed them to examine journalistic records in an Official Secrets Act investigation.
The High Court’s decision is of real public importance and particularly significant for the press because, had the Order been upheld, fundamental protections applicable to journalistic material in English law would have been undermined.
In a judgment handed down this morning, a Divisional Court granted judicial review on five grounds against an Order made by the Recorder of London at the Old Bailey. The judgment, R (on the application of LXP) vs Central Criminal Court, was handed down by Lady Justice Macur and Mr Justice Garnham.
The court quashed, in its entirety, a prior ruling made under Section 59(5) of the Criminal Justice and Police Act (2001) by which a judge had held that records merely suspected of being stolen (or otherwise disclosed in breach of the criminal law) did not enjoy legal protection from police examination.
Had this distinction been upheld, police forces could have argued that journalistic records derived from allegedly stolen material do not benefit from the legal safeguards applying to journalistic material and can therefore be accessed by warrants obtained at private hearings, without consideration having been given to free speech rights.
Rejecting the Metropolitan Police Service’s argument seeking to defend that prior ruling, Lady Justice Macur said that the judge had made a ‘bold finding’ that ‘flies in the face of a line of binding authorities’, and required a ‘qualification’ of the statutory definition of journalistic material not found within the law. The Court ruled that the Met’s interpretation breached both domestic law and Article 10 (free speech) of the European Convention on Human Rights.
The case arose from search warrants granted under the Official Secrets Act (1911) by the Recorder of London, HHJ Mark Lucraft KC, in relation to properties connected to three individuals. Two individuals, X and Y, were Crown Servants. The other, LXP, is a freelance journalist. X and Y were suspected of breaching Section 1 and Section 2 of the Official Secrets Act (1989), respectively. LXP was under investigation for a suspected breach of Section 5 of the same Act.
Warrants were executed against the home and work addresses of LXP in a dawn raid. The operation involved dozens of plain clothes Counter Terror Command Officers. The Met seized a large quantity of electronic devices and documents belonging to LXP.
The allegation underlying the warrant was that X and Y passed information to LXP, the freelance journalist. LXP was alleged to have disclosed the information onwards. It was also alleged that onward disclosures under investigation in the case were suspected of ending up in newspaper articles.
The Metropolitan Police deny being aware, prior to the grant of the search warrants, that LXP was a journalist. When the warrants were executed LXP immediately informed them that they acted in such a capacity. However, the police continued to spend months vehemently disputing that claim. Eventually, months after the raid, the Met accepted that they were a journalist. However, the Force went on to claim in the subsequent Section 59 hearing before the Recorder of London that journalistic materials that were disclosed unlawfully to a journalist could not enjoy legal protection as journalistic materials.
The judgment of the Divisional Court made clear that – given the police have not specified the stories they are investigating – it was not possible for the court to definitively identify which newspaper stories are under investigation under the Official Secrets Act.
In their Statement of Facts and Grounds, LXP advanced five separate grounds for judicial review. The Met argued that each of those grounds were ‘unarguable’ and LXP should not be granted permission to even apply for judicial review. The Divisional Court not only granted permission but found, in full, for LXP on each and every ground.
The Metropolitan Police argued before the Court that for LXP, the freelance journalist, to enjoy journalistic protections over the materials they sought, LXP should have to confirm that X and Y were LXP’s sources and that they had provided LXP with material protected under the Official Secrets Act 1989. The Metropolitan Police also argued that, even if the Court found that allegedly stolen material could be journalistic, officers were entitled to review it prior to its return.
In a strong rebuke, Macur LJ said that in such circumstances ‘the stable door is opened by the police conducting the search’ and that ‘the horse named “journalistic protection” has already bolted’.
The Court ruled that, in the light of the way litigation had unfolded, a bespoke legal procedure was necessary to balance the Met’s desire to unveil the source of alleged leaks against LXP’s fundamental rights and the public interest in the free press. The Court ordered that the Met must not access the contents of the journalist’s seized material as they had argued they were entitled to. Rather, they must hand over the devices to an independent barrister. LXP will then be entitled to tell only that barrister and the Court which records were journalistic. The Metropolitan Police will then have to argue why there is an overriding public interest which would justify them being permitted to access any journalistic materials which they wish to inspect.
The Court also continued an anonymity order granted to LXP in connection with these proceedings by Sir Duncan Ouseley in July. Details of the continued order are available at: https://www.judiciary.uk/judgments/lxp-v-the-central-criminal-court-of-england-and-wales-anonymity-order/
LXP was represented by Katie Wheatley, Salima Budhani, Alice Hardy, Verity Cannell, Hermione Hill, and Counsel Alex Bailin KC and Ben Silverstone of Matrix Chambers.
The judgment can be found here: LXP, R (on the application of) v Central Criminal Court – Find case law (nationalarchives.gov.uk)
Katie Wheatley, Head of Crime, Fraud and Regulatory at Bindmans LLP, and LXP’s solicitor, said:
Parliament has established a delicate balance between essential protections for journalistic material and the public interest in effective criminal investigations. The Order obtained by the Metropolitan Police would have ridden roughshod over that balance.
If the Order had been upheld, vitally important legal safeguards that protect journalistic material would have been watered down, making it easier for police to seize or obtain journalistic material, including confidential source material, no matter the public interest value of the story.
In ruling for our client on all five grounds, the Divisional Court made clear that the position the judge was invited to by the Metropolitan Police submissions in making the Order involved an erroneous qualification of the statutory definition of journalistic material and flew in the face of binding authorities.
LXP has asked me to thank publicly the National Union of Journalists and Free Speech Union for their invaluable support in this matter. They have also asked me to express their profound gratitude for the support provided by The Sun, Associated Newspapers, Telegraph Media Group, and Jewish Chronicle.”