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The High Court ruled against the Metropolitan Police’s efforts to confiscate the phones, computers, and notebooks of journalists on the suspicion that they may contain leaked or “stolen” information.
The ruling by Lady Justice Macur and Mr Justice Garnham, released on Friday after a series of closed hearings, is being celebrated as a major win for press freedom and investigative journalism.
If the Met’s argument had been accepted, it would have put any journalist or media outlet at risk of a police raid if they received unauthorized information from a confidential source.
According to The Independent, the situation – believed to have incurred over £1 million in expenses for the police in terms of operations and legal fees – is causing concern in Whitehall and is expected to further strain the relationship between government officials and Sir Mark Rowley, the Metropolitan Police Commissioner.
The ruling on Friday marks the initial development in a 17-month long legal battle that has been kept under wraps due to court orders. The freelance journalist involved in the case remains anonymous and is referred to as “LXP” in the judgment.
The story started on July 8th of the previous year, when the Metropolitan Police received permission from Judge Mark Lucraft KC, the most experienced judge at the Old Bailey, to search LXP’s residence. The police alleged that LXP had been given confidential information from two individuals, known as “X” and “Y”, who were both government employees. The Metropolitan Police claimed that both X and Y, as well as LXP, had violated the Official Secrets Act.
LXP collaborated with journalists from multiple newspapers to investigate prominent news items related to national security and defense, such as China’s procurement of British military technology. The Metropolitan Police alleged that LXP obtained their information from these sources, a claim that LXP refuted.
In the early morning of July 12th, four days after the warrant was issued, a team of officers from Special Branch and SO15, the Metropolitan Police’s anti-terrorist unit, conducted a raid on LXP’s apartment. They also searched their workplace and confiscated electronic devices, notebooks, and other documents.
In legal documents and during private hearings, LXP attempted to block the police from searching through the devices and materials that were taken, claiming that the warrant was invalid. LXP’s legal team argued that, as a journalist, they should have been granted legal protections aimed at safeguarding press freedom, such as the Human Rights Act and the Police and Criminal Evidence Act.
The police had been attempting to prove that LXP was not a journalist for several months. However, when presented with evidence, the Met suddenly altered their argument. They now acknowledged that LXP was indeed a journalist, but maintained that they still had the authority to seize and examine their notebooks and devices due to their suspicion that they contained “stolen” material.
In March, Judge Lucraft issued a ruling in agreement. He stated that there is a noticeable difference between what he deems as “true journalistic material” and material that has been obtained unlawfully. This implies that the usual legal precautions for safeguarding press freedom are not necessary.
According to legal professionals, the impact of Judge Lucraft’s ruling would have been significant. It would have had consequences for cases unrelated to classified information or protecting national security. If the ruling had been upheld, it would have allowed police to conduct raids and confiscate devices and documents if they suspected a journalist had obtained information without the owner’s consent, as was the case with LXP.
Katie Wheatley, the solicitor for LXP at the law firm Bindmans in London, remarked: “The government has carefully considered the need to safeguard journalistic material while also ensuring effective criminal investigations. The Order secured by the Metropolitan Police would have disregarded this balance.”
“If the Order had been maintained, crucial legal protections for journalistic material would have been weakened, allowing for easier seizure or acquisition of such material by the police. This includes confidential sources, regardless of the public interest of the story.”
LXP has incurred significant legal expenses while fighting the case. However, with the help of the National Union of Journalists and the Free Speech Union, they attempted to challenge Judge Lucraft’s order through a High Court judicial review.
The verdict on Friday was a crushing criticism of the police and a total overturning of Judge Lucraft’s ruling.
The legal team at LXP, headed by Alex Bailin KC, presented five different arguments to challenge the validity of the order. On the other hand, the lawyers representing the Met argued that these arguments were too weak to be brought before the court and that LXP’s request for a judicial review should be rejected without further consideration.
Nevertheless, the High Court ruling affirmed all five grounds. According to the judgment, Judge Lucraft’s decision was “a daring conclusion that contradicts established precedents.”
The High Court has ruled that the Met cannot examine the seized devices or documents without first handing them over to an independent barrister. This would allow LXP to present their case for why the contents should be considered journalistic material should the investigation continue.
The Metropolitan Police would need to explain the reason behind their access to the information by justifying an “overriding public interest.” Ultimately, this rationale would be examined in a legal setting.
The Metropolitan Police could potentially challenge the decision of the High Court by appealing to the Court of Appeal and ultimately to the Supreme Court. However, a confidential government official implied that this course of action would not be favored. “The importance of press freedom must be a top priority in our decision-making. This case is worrisome and careful consideration should be taken before proceeding.”
A representative from the Metropolitan Police stated: “We acknowledge the decision and will review the results. We are not willing to elaborate on this matter any further.”