Protection of Journalists' Sources and Materials

July 20, 2012

The following is the advice offered by the National Union of Journalists (NUJ) to all journalists who are covering the Olympic Games which are due to start in London on 27 July 2012.

A. Under the Police and Criminal Evidence Act 1984 (PACE), a journalist is entitled not to voluntarily hand over journalistic material that the Police request and can require the Police to seek a Court Order from a Judge which should be on Notice.

"Journalistic material" means material acquired or created for the purpose of journalism, if it is in possession of a person who acquired or created it for the purposes of journalism.

Although PACE does not apply in Scotland, the same protections under the Human Rights Act and the European Convention on Human Rights operate.

A journalist can similarly decline to hand over journalistic material under counter terrorism legislation.

B. The Police will in some instances seek to obtain material, such as photographs, video footage, notebooks and contact lists from journalists. Not only is it an accepted fundamental journalist ethic, but also is recognised in UK legislation and case law, and in the European Court of Human Rights that the Police should seek a Court Order if the journalist objects.

Issues may then arise as to Excluded Material, Special Procedure Material and for example, is the material likely to be of substantial value to the Police investigation, what other efforts have Police made to obtain the material, is the material confidential, is it necessary - and not just convenient or expedient. - in the public interest for the Court to make an Order.

The European Convention on Human Rights, Article 10, Freedom of Expression is engaged. The European Court of Human Rights has recognised that "to be justified, any curtailment of freedom of expression must be convincingly established by a compelling countervailing consideration, and the means employed must be proportionate." (Reynolds v Times Newspapers).

"The press has a duty to impart information and ideas on all matters of public interest and the public has a corresponding right to receive that information..... The press carries out its vital role of "Public Watchdog." (Observer & Guardian v UK).

"Otherwise, to the public disadvantage, legitimate inquiry, discussion and the ‘safety valve' of investigative journalism.....would be discouraged and perhaps stifled." (R (Bright) v Central Criminal Court).
 
Article 2, Right to Life may also be engaged . "There is also public interest in the press being able to go about the activity in safety." (R v Bristol Crown Court ex p Bristol Press Agency Ltd).

"The requisite review (by a Judge) should be carried out by a body separate from the Executive and other interested parties to determine whether a requirement in the public interest overriding the principle of protection of journalistic sources exists PRIOR to the handing over of the said material to prevent unnecessary access to information capable of disclosing the source's identity." (Sanoma Uitgevers BV v The Netherlands).

C. ARRESTED? Contact the Emergency Legal Advice numbers below:

LONDON 2012 OLYMPICS
NUJ
LAWYERS' EMERGENCY NUMBERS:

Thompsons: 0800 587 7530
Bindmans: +44 (0) 20 7833 4433

D. AND Inform NUJ Legal Department as soon as possible as any court hearing may be at very short notice. We can then contact you regarding further advice and representation.

+44 (0) 20 7843 3704
roym@nuj.org.uk
legal@nuj.org.uk

Roy Mincoff
Legal Officer
National Union of Journalists
Headland House, 308-312 Gray's Inn Road, London, WC1X 8DP


For more information contact:
Roy Mincoff
Legal Officer
National Union of Journalists
Phone: +44 (0) 20 7843 3704
Email: legal@nuj.org.uk
Website: www.nuj.org