By Anthony James, criminal and regulatory barrister at Mountford Chambers.

On 10 November 2023, the High Court handed down a decision regarding the legality of the seizure of alleged journalistic material by the Metropolitan Police (“MPS”). The judgment looks at whether stolen material can be considered journalistic material and also the balance between the public interest in the MPS investigation and Article 10 European Convention on Human Rights (“ECHR”).

The Facts

In July 2022, the MPS were granted a search warrant under section 9 of the Official Secrets Act (“OSA”) 1911 on the basis that there were reasonable grounds to suspect offences had been committed by the Claimant, LXP, under section 5 OSA 1989, namely the disclosure of information relating to national security, intelligence and defence. Two other individuals, X and Y, were suspected of offences under sections 1 and 2 OSA 1989 respectively. Essentially, X and Y were alleged to have breached the OSA 1989 by illegally disclosing sensitive material to LXP. The search warrant included computing material at LXP’s home address with the purpose of finding the disclosed material and evidence regarding its theft. The warrant was executed shortly after the application was granted.

LXP instructed solicitors and objected to the warrant on the basis that some of the material seized was journalistic and the warrant could not authorise the seizure of journalistic material. Such material is defined, perhaps somewhat uncreatively, by section 13 Police and Criminal Evidence Act 1984 (“PACE”) as ‘material acquired or created for the purposes of journalism’.

The MPS therefore invited the Crown Court under section 59 Criminal Justice and Police Act 2001 (“CJPA”) to determine the issue of whether LXP was a freelance journalist. Section 59(5) CJPA allows the court a broad discretion to give such directions as it sees fit as regards examination, retention, separation and return of the property.

First instance decision

Before the Recorder of London on 10 March 2023, the MPS conceded that LXP was a journalist but the material could not be journalistic if it were stolen. Further, it proposed a set of directions for the examination of the material to guard against genuine journalistic material being examined.

LXP submitted that the MPS had failed to discharge the evidential and legal burden that the material was not journalistic. The MPS concession that LXP was a journalist gave rise to an overwhelming inference that any material obtained by LXP was for journalistic purposes.

The judge ruled that there is a clear distinction to be made between ‘true journalistic material and material that has been stolen’ and made directions as to how the material was to be examined. These directions allowed the MPS to examine the devices in accordance with identified search parameters before independent counsel would then separate out material subject to legal professional privilege, special procedure material and excluded material.

This decision was then judicially reviewed by LXP and the MPS refrained from examining the material pending the outcome of the judicial review.

 Decision of the High Court

Two central issues on which the decision turned were:

1. Can stolen material nevertheless be journalistic material?
2. If so, should the police be allowed to view the material, balancing the public interest in the investigation of crime with Article 10 ECHR?

The High Court held that the judge’s decision on the former issue was incorrect, calling it ‘generic’ and ‘bold’. The judge had added the word ‘true’ into the statutory definition of journalistic material in section 13 PACE and to say there was a clear distinction to be made ‘flies in the face of a line of binding authorities’ saying that there cannot be a bright line test.

As regards the latter question, the Court cited several domestic and European authorities on the point and recognised the ‘inevitable tension’ between the multiple interests at play. The Court found for LXP on all grounds and agreed with LXP’s submissions that the directions as to the inspection of the material must take into account whether the material is journalistic material, and if so, whether it should be immune from inspection. Further, the Court held that it was not for the police to first determine whether the devices contained relevant material sought by MPS. It was for independent counsel to do so in line with the broad discretion to give such directions as the Court thinks fit per section 59(5) CJPA. The Court deemed this a ‘novel solution’ but one which prevented LXP self-assessing whether material was journalistic in addition to preventing the police seeing potentially immune material.

The Court therefore substituted the Recorder of London’s directions for the following:

• All material on the seized devices shall be downloaded. The downloaded and seized hard copy material will not be accessed or otherwise examined by the MPS and will be held securely to ensure that no such access occurs.
• MPS to identify within 14 days a set of search parameters (including keywords and selectors) in order to examine the devices for material belonging to His Majesty’s Government which has been ‘unlawfully’ disclosed, including evidence of any onward disclosure, and any communication which provides evidence of that disclosure, by either X or Y and identify other material, not amenable to search terms, such as PDFs and photographs that may be relevant to their investigation.
• MPS to instruct independent counsel (“IC”) to examine the Claimant’s devices by the application of the search parameters so identified.
• IC shall prepare a schedule, identifying relevant material by description and shall serve the schedule upon the Claimant.
• The Claimant, if he so chooses, is to identify those ‘materials’ which he claims to be ‘journalistic’ or should otherwise be excluded from disclosure to the MPS and why, within 7 days thereafter.
• Thereafter the schedule and materials identified in the examination by IC and the Claimant’s representations, if any, be served on the Court only.
• The application for inspection by MPS be re-listed before the judge to determine (a) the ‘gist’ of any relevant closed materials upon which the MPS will rely which is to be provided to the Claimant; (b) whether there is ‘stolen’ material which falls within the definition of journalistic material; and (c) to conduct the Art 10 balancing exercise on whether to permit inspection by the MPS of journalistic materials.

Comment

This judgment offers a helpful analysis of police powers when investigating alleged offences which involve the analysis of material subject to ECHR rights. The High Court has been clear that the provisions of CJPA do not supersede ECHR rights when there is the suspicion that offences have been committed. There is a balancing exercise that must be undertaken and a novel approach as regards judicial directions may be required in order to balance the competing interests. It is for neither the police nor the affected journalist to assess whether material is journalistic, that is best done by independent counsel. One might hope there will more such briefs to be independent counsel on this interesting but complex subject.

Anthony James is a criminal and regulatory barrister at Mountford Chambers. He specialises in cases, involving complex legal argument and has experience in the interaction between judicial review and the criminal law.