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BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
complying with the requirements of s 22, he will make an independent judgement, as
he did in this case. In general the requirement for a decision on necessity and
proportionality to be taken by a senior officer who is not involved in the investigation
does provide a measure of protection as to process, but the role of the designated
person cannot be equated to that of an independent and impartial judge or tribunal.
108. Subsequent oversight by the Commissioner, or, in the event of a complaint, by
this Tribunal, cannot after the event prevent the disclosure of a journalist’s source.
This is in contrast to criminal investigations where a judge at a criminal trial may be
able to exclude evidence which has been improperly or unfairly obtained by an
authorisation made under s 22. Where an authorisation is made which discloses a
journalist’s source that disclosure cannot subsequently be reversed, nor the effect of
such disclosure mitigated. Nor was there any requirement in the 2007 Code for any
use of s 22 powers for the purpose of obtaining disclosure of a journalist’s source to
be notified to the Commissioner, so in such cases this use of the power might not be
subject to any effective review. Furthermore none of the Complainants had any reason
to suspect that their data had been accessed until the closing report on Operation Alice
was published in September 2014. If the Respondent had not disclosed that
information – and it is to his credit that he did – then the Complainants would never
have been in a position to bring these proceedings.
109. So in a case involving the disclosure of a journalist’s source the safeguards
provided for under s 22 and the 2007 Code were limited to requiring a decision as to
necessity and proportionality to be made by a senior police officer, who was not
directly involved in the investigation and who had a general working knowledge of
human rights law. The 2007 Code imposed no substantive or procedural requirement
specific to cases affecting the freedom of the press. There was no requirement that an
authorisation should only be granted where the need for disclosure was convincingly
established, nor that there should be very careful scrutiny balancing the public interest
in investigating crime against the protection of the confidentiality of journalistic
sources. The effect of s 22 and the 2007 Code was that the designated person was to
make his decision on authorisation on the basis of the same general tests of necessity
and proportionality which would be applied to an application in any criminal
investigation.”
119. The IPT could not award any remedy in respect of the failure to
provide adequate safeguards to protect Article 10 rights, as this did not in
itself render the authorisations unlawful. However, it also found that one of
the authorisations was unlawful, as it had been neither proportionate nor
necessary. In considering the appropriate remedy, it acknowledged that it
had the power to award compensation, but declined to do so since it did not
consider it necessary to afford just satisfaction.
120. In March 2015 the 2007 Code of Practice was replaced by a new
code. Paragraph 3.78 of that new ACD Code provides that in the specific
case of an application for communications data, which is made in order to
identify a journalist’s source, those law enforcement agencies with powers
under the Police and Criminal Evidence Act 1984 (PACE) must use the
procedures of PACE to apply to a court for a production order to obtain this
data.