Legal threats in the United Kingdom

Sarah Kavanagh

If there is one overriding responsibility of a journalist, it is the protection of sources. Whistle-blowers and sources need to be able to come forward and share information whilst keeping their identity protected. As Chris Frost, the chair of the (United Kingdom and Ireland) National Union of Journalists (NUJ) ethics council, said:

It is difficult to measure the extent of stories from whistle-blowers because they are anonymous but in my experience virtually every serious investigation is launched on the back of a source or whistle-blower who needs to be kept anonymous for their protection.

(NUJ 2015)

In practice, NUJ members will often come to the union for support and assistance when the authorities try to access their sources of information. For example, when Londons Metropolitan Police decided to question journalist Amelia Hill under caution and then announced its intention to take The Guardian to court, Hill told the union:

Scotland Yard believed my source was a serving detective on Operation Weeting, the polices phone hacking investigation. They claimed that I could have incited my source to break the Official Secrets Act and, in doing so, had broken the Act myself. The application for the production order required The Guardian and me to hand over material which would disclose both my source for the Milly Dowler story and my source for the information which had enabled me to reveal almost immediately the identities of those arrested in the hacking scandal.

(NUJ 2017)

The legal action was scheduled to take place at the Old Bailey (Englands main criminal court), but the police abandoned the case following widespread public condemnation. The incident was just one prominent example of the way in which the law is currently being used to threaten investigative journalism in the UK. The threats include police attempts to access journalists’sources, government clampdowns on national security reporting and big data leaks and the introduction of draconian legislation.

The NUJ seeks to tackle these threats, so first I will introduce the Union.

The National Union of Journalists

The National Union ofjournalists in the United Kingdom and Ireland is the only independent, collective and representative voice for media workers in both countries. The union was founded in 1907 and has 30,000 members representing staff, freelance and student journalists working at home and abroad in broadcasting, newspapers, news agencies, magazines, books and online.

The Union is democratic and membership led. It helps individuals and groups tackle their problems at work, and it can also mobilise thousands of media professionals, trade unionists and friends to campaign to defend investigative journalism.

The NUJ is affiliated to the International Federation of Journalists (IFJ), representing more than 600,000 media workers in 187 organisations from 146 countries. This enables the NUJ to operate within a global network that fosters mutual support and solidarity'.

National Union ofjournalists ethics

In the United Kingdom and Ireland, the union’s ethical Code of Conduct is the only code written for journalists by journalists. It forms part of the union’s rules, and NUJ members strive to adhere to its professional principles. The NUJ code states:

A journalist at all times upholds and defends the principle of media freedom, the right of freedom of expression and the right of the public to be informed.

(NUJ 2011)

The code also repeatedly highlights the importance of the public interest and calls on journalists to protect their sources. The first NUJ code was published in 1936 and said a journalist “should keep union and professional secrets and respect all necessary confidences regarding sources of information and private documents” (NUJ 1936). The code was last updated in 2011, and more than 80 years after the first draft, it still says a journalist “protects the identity of sources who supply information in confidence and material gathered in the course of her/his work” (NUJ 2011).

Journalists and the legislation concerning secrecy

Under the Official Secrets Act 1989, it is an offence for current or former employees of the security and intelligence services, government contractors or crown servants to make unauthorised disclosures of information. Doing so is technically described as a ‘Primary Disclosure’. This means that if whistleblowers or sources are found, they can be prosecuted. The category of Secondary Disclosure includes journalists and media workers because they receive information from a (primary) source and they make an unauthorised publication of the information. Under the Official Secrets Acts 1911 and 1989, journalists can be prosecuted for Secondary Disclosure. There is no public interest defence.

Under the Police and Criminal Evidence Act 1984 (PACE), journalistic material (including hard copy notes, contact books, un-broadcast or un-published footage) is given special protection from seizure by the police. If the police want to access this material, they must first apply to a judge using a production order.

When Essex police applied for production orders to get access to the unbroadcast footage of scenes from the Dale Farm traveller site eviction in 2011: the BBC, Independent Television News (ITN), BSkyB, Channel 5, Hardcash Productions and the freelance video journalist Jason Parkinson were all notified of the application and opposed the requests. Some of the broadcast footage featured on the investigative current affairs programme Dispatches and the legal case lasted for 18 months. The production orders were eventually quashed at the Court of Appeal because they did not relate to any specific incidents of serious criminality. Instead the police had decided to embark on a ‘fishing expedition’ and wanted to trawl through the unpublished material. The final legal judgement said the police must have specific and clear grounds for a production order application, and it highlighted the clear and distinctive roles of the police and news gatherers. Responding to the judgement, NUJ member Jason Parkinson said:

We will not be forced into the role of unwilling agents of the state . . . we are journalists and we are there to report the news and keep the public informed.

(NUJ 2012a)

When the authorities wanted to access journalistic material or sources, they applied for a production order using the PACE legislation or the Terrorism Act 2000. This process had been well established, and the union had supported many NUJ members through lengthy legal proceedings in which they had successfully stood by the NUJ’s ethics code.

What we did not know until 2014 was that the authorities were also using the Regulation of Investigatory Powers Act 2000 (RIPA) to gain access to journalists’ information and sources in secret.

The secret state surveillance of citizens and journalists

The first of the Edward Snowden stories were published in The Guardian in 2013, and they revealed that various governments were spying on citizens. The newspaper came under attack for reporting the leaks, and the editor, Alan Rus-bridger, was summoned to Parliament. The NUJ and IFJ decided to step into the public fracas. The IFJ president, Jim Boumelha, said:

The IFJ and all the journalists worldwide are fully behind The Guardian and its journalists. It is mind-boggling that the revelations by The Guardian about the programme of mass surveillance are considered in some circles to be similar to aiding and abetting terrorism. This is an outrageous suggestion.

(NUJ 2013)

The union also made a statement on behalf of the NUJ members (collectively referred to in each workplace as a ‘chapel’) employed at the titles. It said:

The Guardian and Observer NUJ chapel, representing the overwhelming majority of journalists at both titles, strongly supports the editors decision [to publish I.

(NUJ 2013)

Around the same time, the Metropolitan Police launched a criminal investigation focusing on the journalists working on the stories, and six years later, with no arrests or prosecutions, the police confirmed that their investigation had been dropped (Gallagher 2019).

NUJ member Ewen MacAskill, who worked on the Snowden files, explains the impact on journalism:

What we learned from the Snowden documents is the ease with which journalists can be targeted and the speed with which the intelligence agencies and police can locate sources. They can - and do — gain access to emails, phone records and any other electronic data used by journalists, and, through that, can track journalists and identify sources.


The reporting of the Snowden leaks alerted the NUJ to the prospect that journalists’ electronic communications could be targeted by the state. As a consequence, the union started paying more attention to legislation relating to investigatory powers and communications data (see also Chapter 3).

The legislative battles to protect journalism

At the end of 2012, the UK government published a Draft Communications Data Bill. The NUJ supported calls, made by the pre-legislative committee, to amend the bill so that the home secretary was not given what the committee described as “carte blanche to order retention of any type of data” (Parliamentary Joint Committee on the Draft Communications Data Bill 2012).

The bill proposed to allow the government to order internet companies to collect and store communications data relating to all internet traffic, including websites visited, internet searches and private social media messages. Michelle Stanistreet, NUJ general secretary, said:

The draft bill is a major assault on civil liberties for all citizens and a threat to press freedom. For journalists, it would be a direct attack on the way they work and would severely undermine their ability to protect their sources, materials and whistle-blowers. It must be dropped.

(NUJ 2012b)

The Conservative Party and the Liberal Democrats were in a coalition government at the time, and Nick Clegg, the deputy prime minister and leader of the Liberal Democratic Party, said:

I believe the coalition government needs to have a fundamental rethink about this legislation. We cannot proceed with this bill and we have to go back to the drawing board.

(BBC 2012)

So it transpired that with one part of the government blocking another part of the government, the measures contained within the bill were temporarily dropped.

In the summer of 2014, the government published more draft legislation in the form of the Data Retention and Investigatory Powers Bill (House of Commons Library 2014). The government hurriedly pushed it through parliament over the course of three days without time for proper scrutiny or debate. It was unclear how the new law would impact the media.

With mounting concerns, the NUJ decided to organise a global conference with the support of the IFJ. The event brought together journalists, politicians, lawyers, human rights and privacy campaigners. We wanted to explore what we could do collectively and examine the practical steps needed to safeguard journalists and their sources. The conference was planned for October 2014 and was hosted by The Guardian.

Police secretly grab journalists’ phone records

A few weeks before the NUJ’s global conference on safeguarding journalists and their sources, the trade publication Press Gazette ran a story revealing The Sun’s Political Editor Tom Newton Dunn’s mobile phone records and the news desks call data had been seized by police (Ponsford 2014a). The authorities had used the RIPA legislation to secretly access the phone records. They did not tap the phones or access phone messages; they took the records of which numbers were called and received. For the police to access this data, all they needed was sign-off by a police superintendent.

The Press Gazette story went to the heart of the matter. It showed that journalists could try to keep their sources confidential, but the RIPA legislation could be used to access information without their knowledge or consent. With the help of the NUJ, Press Gazette launched a ‘Save our Sources’ petition calling on the interception of communications commissioner to conduct an urgent investigation. Dominic Ponsford, the editor of Press Gazette, said:

If law enforcement are able to secretly grab the phone records ofjour-nalists and news organisations then no confidential source is safe and pretty much all investigative journalism is in peril.

(Ponsford 2014b)

The second RIPA case, reported by The Times, revealed that Kent police had used the legislation to obtain the phone records of the Mail on Sunday's news editor David Dillon and freelance journalist Andrew Alderson (Ponsford 2014c). More cases followed, and it was clear that none of the journalists involved were accused of breaking the law.

The increasing number of cases brought increasing attention. The interception of communications commissioner announced an investigation and promised a report. The Home Affairs Parliamentary Committee also launched an investigation at which the NUJ gave evidence. The committee concluded the legislation governing communications data needed a complete overhaul. Keith Vaz, MP, the chair of the committee, said:

We are concerned that the level of secrecy surrounding the use of RIPA allows investigating authorities to engage in acts which would be unacceptable in a democracy, with inadequate oversight.

(House of Commons Home Affairs Select Committee 2014)

The NUJ, Law Society, Bar Council and British Association of Social Workers decided to launch a public alliance called the “Professionals for Information Privacy Coalition” and jointly demanded new legislation to protect professional data.

In February 2015, the interception of communications commissioners report was published and showed that 82 journalists had had their data seized by police in relation to 24 out of 34 investigations involving 19 police forces over a three-year period. In total, the 34 police investigations concerned relationships between 105 journalists and 242 sources. Whilst deciding that police were not “randomly trawling” for data, the report revealed that a total of 608 RIPA applications were made for communications data to find journalistic sources (Turvill 2015).

The Conservative Party Manifesto in 2015 pledged there would be explicit statutory protection for the role of journalists and a commitment that “we will ban the police from accessing journalists’ phone records to identify whistleblowers and other sources without prior judicial protection” (The Conservative Party 2015). The party won the election, and a new Investigatory Powers Bill was published.

The Investigatory Powers Bill

Throughout the different stages of the investigatory powers campaign, the NUJ engaged with cross-party parliamentarians, and our concerns were raised during every parliamentary debate. We fostered an informal partnership with the Media Lawyers Association, News Media Association and the Society of Editors, and by working across the news industry, we were able to put forward a united position. The union also backed the public campaigning initiative called ‘Don’t Spy on Us' involving Amnesty International, English Pen, Article 19, Privacy International, Liberty, Open Rights Group and Big Brother Watch.

Essentially, we were all advocating for improved protections that would replace the existing powers. The NUJ worked with Gavin Millar QC to draft a legislative amendment to the Investigatory Powers Bill that offered a “shield law” to protect journalists, their sources and material.

The Investigatory Powers Bill contained no equivalent of the production order procedures set out in the PACE legislation: there was no prior notification or right to challenge or appeal decisions relating to the authorities having access to journalistic communications. In addition, the bill also included broad new powers allowing for ‘equipment interference’. This enables the authorities to take control of targeted electronic devices and access information stored including log in details, passwords, documents, emails, contacts, messaging chats and location records. The microphone, webcam and GPS technology can also be turned on.

The NUJ concluded that the bill was totally inadequate; the government had continually disregarded our objections, as well as the key recommendation from the parliamentary committee:

The committee recommends that the Home Office should reconsider

the level of protection which the Bill affords to journalistic material and sources. This should be at least equivalent to the protection presently applicable under PACE and the Terrorism Act 2000.

(Parliamentary Joint Committee on the Draft

Investigatory Powers Bill 2016)

The only significant concession contained within the Investigatory Powers Act (2016) was the introduction of a judicial commissioner’ to provide oversight when the authorities want to access journalists’ communications. Journalists or media organisations would not get the opportunity to make their case to a judge in an open court to explain why the authorities should not be allowed to access the information. The legislation passed through parliament without much opposition, and it remains one of the most draconian laws of its kind in the world.

In September 2018, in a successful challenge to the Investigatory Powers Act, the European Court of Human Kights ruled that mass surveillance, without adequate media safeguards, was unlawful. The judgement came after a four-year case brought by the Bureau of Investigative Journalism supported by the NUJ and IFJ (NUJ 2018a). The ruling represents the most significant blow to the government’s dogmatic pursuit of this repressive surveillance legislation.

Targeted for telling the truth

Over the course of the last decade, the most serious individual case that threatened investigative journalism and involved the NUJ was the targeting of two journalists who sought the truth about human rights abuses in Northern Ireland.

At the start of the bank holiday weekend in August 2018, two investigative journalists and NUJ members were arrested in Belfast. Trevor Birney and Barry McCaffrey were under investigation in connection with the suspected theft of a confidential report, and they were accused of handling stolen goods, unlawful disclosure of information under the Official Secrets Act and the unlawful obtainment of personal data.

The confidential report was from the office of the Police Ombudsman for Northern Ireland, and the leak was sent to the journalists by an anonymous source. McCaffrey had received a plain envelope in the post with no return address. The document related to the first police investigation into the killing of six men by a loyalist paramilitary group in 1994 in a Northern Ireland village called Loughinisland.

The report features in the film No Stone Unturned, which tells the story of the victims and their families. It also examines the police investigation into the murders, names the murder suspects and highlights allegations of collusion between the police and killers. Following the arrests of Birney and McCaffrey, Patrick Corrigan, Amnesty International’s Northern Ireland director, said:

When the police are arresting journalists who have investigated police collusion in the killing of civilians, rather than the killers and their helpers, then we all should be deeply worried.

(NUJ 2018b)

The police investigation

When the journalists were arrested, they had to wash and dress in front of police officers, they were questioned for 14 hours and their homes and office were raided. The police took away phones, computers and the entire computer server from the office. Durham police were leading on the investigation and had been brought in by the Police Service of Northern Ireland (PSNI).

During the investigation, the police ombudsman denied that his office had made a complaint about a theft to the PSNI, the police declined to comment and the Irish Times quoted Birney’s solicitor as saying that it “undermines the entire integrity” of the arrests (McKay 2018).

The allegation of a data protection breach was linked to the whereabouts of Detective Albert Carroll, who is mentioned in the film. It was claimed by police that the journalists must have accessed his personal data, but they had actually found his contact details in the French telephone book.

The police had already known in advance that the film was likely to name the suspects in the Loughinisland case. During the film’s pre-publication and editing process, the journalists offered the named suspects a right of reply sent by registered mail, and the letters went unanswered. They also informed the police ombudsman of the likely suspects the film would name. The ombudsman passed on the information to the PSNI. The journalists had wanted to be sure the PSNI was informed just in case there were any concerns for the safety of the suspects or in case the police had any other compelling reason the film should not be released. The journalists received no response.

During the course of the police investigation, both journalists were required to hand themselves in to a police station in Belfast on a regular basis for further questioning. Each time this happened, the union organised a solidarity protest outside. The union also supported a challenge to the legality of search warrants, arguing that the police had retained material that was not within the scope of their investigation: they had seized large quantities of journalistic material that was not connected to the film.

The court challenge

In February 2019, Belfast’s High Court granted a judicial review, and the journalists’ legal argument rested on a series of technical points - the warrants did not cover all of the seized material, the police had used the wrong procedures (they had used the PACE legislation but not the sections that applied to journalists) and the judges’ reasoning in granting the search warrants had not been recorded at the time.

Throughout the duration of the campaign, the NUJ had sought to secure media coverage of the case and organised public screenings of the film. The union contacted various politicians, and the Member of Parliament (MP) for County Durham, Grahame Morris, Labour, and David Davis, MP for Haltem-price and Howden, Conservative, both agreed to help. When the judicial review started in May 2019, some of the organisations from the Investigatory Potvers Bill campaign also agreed to offer their support. The Media Lawyers Association intervened in the case, and English PEN and Index on Censorship also submitted evidence to court. After three days in session, Lord Chiefjustice Morgan decided he was “minded to quash” the search warrants and said the two journalists were acting in “nothing other than a perfectly appropriate way in doing what the NUJ required of them, which was to protect their sources” (NUJ 2019).

The union came out of court that day demanding the PSNI lift the threat of criminal prosecution and, at a further hearing in June, the court confirmed that all the material inappropriately seized should be returned to the journalists. That night, the journalists were informed that the police had dropped the case.

Is investigative journalism (still) a crime?

Journalists should never be targeted for simply doing their jobs. This chapter has highlighted some of the key threats to investigative journalism in the United Kingdom and Ireland. It has not been possible to provide a comprehensive account, but it has been possible to offer a snapshot of the problems and show the union’s efforts.

Some of the NUJ’s battles bear a resemblance to the threats posed in other countries. For example, a journalist in Australia had her home raided by police after she reported on state surveillance. The police warrant said the investigation was linked to the “alleged publishing of information classified as an official secret” (Murphy 2019). The public broadcaster ABC was also raided by police in response to stories it published about alleged human rights abuses perpetrated by the Australian military (BBC 2020).

The NUJ will continue to stand up for journalism and fight to defend the rights of investigative journalists to operate in the public interest and do so without interference from government or any other vested interest.

The UK government has repeatedly shown its disregard for investigative journalism through its attempts to clamp down on national security reporting and big data leaks and by introducing draconian legislation. In 2019, the government launched a campaign to promote media freedoms globally. The paradox was very clear to those of us who had spent many years campaigning for media freedom at home.


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