Neutral Citation Number: [2015] UKIPTrib 14_176-H Case No: IPT/14/176/H IN THE INVESTIGATORY POWERS TRIBUNAL P.O. Box 33220 London SW1H 9ZQ Date: 17/12/2015 Before : MR JUSTICE BURTON (President) MRS JUSTICE CARR MR FLINT QC MS O’BRIEN QC PROFESSOR ZELLICK CBE QC Between : (1) News Group Newspapers Limited Complainants (2) Tom Newton Dunn (3) Anthony France (4) Craig Woodhouse - and - The Commissioner of Police of the Metropolis Respondent Gavin Millar QC and Aaron Watkins (instructed by Simons Muirhead & Burton) for the Complainants Jeremy Johnson QC and Jonathan Dixey (instructed by Directorate of Legal Services) for the Respondent Robert Palmer (instructed by Government Legal Department) made written submissions for The Secretary of State for the Home Department Hearing dates: 20 & 21st July 2015 Crown copyright© (Transcript of the Handed Down Judgment of WordWave International Limited Trading as DTI 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) Judgment As Approved by the Court 1. This claim is brought against the Commissioner of Police of the Metropolis by News Group Newspapers and three journalists employed by The Sun newspaper, Mr Tom Newton Dunn, the political editor, Mr Anthony France and Mr Craig Woodhouse in respect of four authorisations issued under s 22 of the Regulation of Investigatory Powers Act 2000 (“RIPA”). The purpose of the authorisations was to enable the police to obtain communications data which might reveal the sources of information obtained by the journalists. The communications data was sought and obtained by the police in the course of an investigation into allegations arising out of an incident which took place on 19th September 2012 when Mr Andrew Mitchell MP, then the Government Chief Whip, was prevented by police officers of the Diplomatic Protection Group (“DPG”) from leaving Downing Street on his bicycle through the main gate. The incident (colloquially described as “Plebgate”) subsequently attracted considerable publicity on account of the abusive language alleged to have been used by Mr. Mitchell, including the phrase referring to the police officers on duty as “plebs”. 2. This is a claim under s 7 of the Human Rights Act 2000 (“HRA”) for breach of Convention rights, in particular under Article 10 which protects freedom of expression, and thus the right of journalists to protect the confidentiality of their sources. The main issues are whether s 22 of RIPA, which gives power to a police force to obtain communications data from a telecommunications operator, adequately safeguards the confidentiality of journalists’ sources and whether the use of the power under s 22 was in the circumstances of this case both necessary and proportionate. Facts 3. The four authorisations in issue in this case were granted for the purpose of an investigation, known as Operation Alice, conducted by the Directorate of Professional Standards of the Metropolitan Police. The investigation, as set out below, was initially concerned with the disclosure of confidential information to The Sun newspaper, but that investigation was closed in October 2012. The investigation was re-opened on 15th December 2012 into suspected offences of misconduct in a public office by one or more members of the DPG. The First and Second Authorisations were issued on 23rd December 2012, the Third Authorisation on 14th March 2013 and the Fourth Authorisation on 6th June 2013. All the authorisations were made by Detective Superintendent Hudson as the person designated by the Metropolitan Police to perform that function under s 22. 4. Shortly after the altercation with Mr. Mitchell on 19th September 2012, PC Rowland wrote an email to his superiors, copied to two DPG officers, PC Weatherley and PC Watson. The email, which became known as the “Police Log”, set out a detailed account of the incident, including verbatim the three “toxic phrases” which subsequently acquired such notoriety. 5. At around 10 pm on that same evening a source, later identified (in the circumstances set out below at paragraph 25) as PC Glanville of the DPG, telephoned The Sun’s news desk telephone line to report the incident. 6. On 20th September Mr. France made enquiries of the Metropolitan Police about the incident. Meanwhile Mr. Newton Dunn spoke to PC Glanville by telephone and they exchanged text messages and an email including one in which PC Glanville attached a screenshot of the police log. 7. On 20th September an email was sent to Sir John Randall, the Deputy Chief Whip, complaining in strong terms about the conduct of Mr. Mitchell. The sender was a Mr. Wallis who described himself as a constituent of Sir John Randall who had happened to be sightseeing with his nephew in Westminster when the incident occurred. The existence of this email was not known to the Respondent until 13th December. In fact, as later emerged, Mr. Wallis was a police officer serving with the DPG who had not witnessed the incident. 8. On 21st September the story of the incident was published on the front page of The Sun, written by Mr Newton Dunn, reporting PC Rowland’s account of the words used by Mr Mitchell. Mr. Newton Dunn and Mr. France and Ms Emily Ashton were credited with a longer article on page 5. 9. On 22nd September PC Glanville informed Mr. Newton Dunn that the Police Log could be published. On the same day Mr Woodhouse, also a journalist with The Sun, contacted PC John Tully, Chairman of the Metropolitan Police Federation, during which Mr. Woodhouse read out the content of the Police Log. Detective Superintendent Williams of the DPS was informed by senior management of the DPG that they had been told that the Metropolitan Police Federation had been notified by The Sun that it was in possession of the Police Log. On that same day an investigation was commenced by the DPS, under the name Operation Alice, for the purpose of investigating the source of the leaked Police Log. 10. On 23rd September Mr. Newton Dunn contacted PC Tully and emailed him a transcription of the Police Log. On 24th September The Sun published an article containing extracts from it. The article stated that The Sun had not paid any money for the information. There were also articles in the Daily Telegraph, and on 25th September The Sun published an article containing substantially the full text of the Police Log. 11. The investigation by the DPS involved obtaining statements from the officers on duty on 19th September at the gates to Downing Street, and all other police officers who were in receipt of the Police Log. An examination of the police communication systems was conducted to establish whether the Police Log had been disclosed outside the Metropolitan Police, but such enquiries did not evidence any such disclosure. 12. On 2nd October an investigating officer sent an email to Mr Mockridge at News International asking to discuss the leak of the information contained in the Police Log. Mr Mockridge replied, having spoken to the editor of The Sun, that the journalists had a professional and moral obligation to protect their sources and therefore did not wish to discuss where the information came from. 13. At this stage of the investigation no application had been made for the obtaining of communications data relating to any police officers or any journalists. As set out in the witness statements of the senior investigating officer, Detective Superintendent Williams, and Detective Chief Inspector Neligan the matter under investigation did not meet the evidential threshold for a criminal offence. In evidence Detective Chief Inspector Neligan said that the leak of a restricted document to the press, although amounting to gross misconduct by a police officer, would arguably not amount to a criminal offence, by virtue of the availability of a public interest defence to the officer. Having failed to discover the source of the leak, the Operation Alice investigation was closed in October. 14. On 19th October, Mr Mitchell resigned from the Government. It subsequently emerged that Sir John Randall had raised with the Prime Minister the contents of emails received from Mr Wallis, which had been forwarded to the Cabinet Office. At that stage the email sent on 20th September by Mr. Wallis was assumed to be true. 15. In early December as a result of press investigations doubts arose as to the veracity of the email sent to Sir John Randall. On 13th December the Cabinet Office forwarded to the Metropolitan Police CCTV footage of the entrance to Downing Street and the emails between Mr. Wallis and Sir John Randall. On 15th December Operation Alice was re-opened. The investigation team quickly ascertained that Mr. Wallis was a DPG officer who could not have witnessed the incident as he had stated in his email sent to Sir John Randall. The decision was taken to arrest PC Wallis on suspicion of misconduct in a public office. 16. On his arrest the mobile phone and computer of PC Wallis were taken for examination. He was interviewed under caution on 16th December. He initially maintained that he had witnessed the incident but when shown the CCTV footage he confirmed that he had been lying. He said that when he had gone into work on the following day he had overheard officers talking about the incident. His arrest was publicised, and Mr Mitchell made a statement to ITV news on 17th December that “I’d just like to reiterate once again that it is the contents of the alleged Police Log which are false, they are false and I want to make that very clear”. 17. On 17th December an application for communications data from Mr Wallis’s telephone was made under RIPA.