Neil Wilby Media

A freelance journalist has successfully challenged the Metropolitan Police’s attempt to seize protected source material. The High Court in London overturned an Order obtained by the force as part of an Official Secrets Act investigation into alleged leaks related to defence and intelligence.

The court ruled that His Honour Judge Mark Lucraft had erred in allowing the police to obtain source material last year, suggesting information may have been stolen from the government. Lady Justice Macur criticised this decision as a “bold finding” that contradicts established legal authorities aiming to balance police investigation rights and public interest protections for sources.

The investigation targeted LXP, a freelance journalist, along with two Crown servants, identified as X and Y. The latter are accused of passing sensitive national security information to LXP, who allegedly sold stories to newspapers as a result.

Despite a large-scale raid on the journalist’s property by the police’s counter-terror unit, none of the three individuals has been arrested or charged. The Met must now decide whether to appeal the ruling or proceed with keyword searches on LXP’s electronic devices under the court’s supervision.

Home Office insiders emphasised the importance of press freedom in this case and expressed hope that the Met would carefully consider its next steps, indicating a preference for dropping the inquiry. In England and Wales, the 1984 Police and Criminal Evidence Act protects journalists’ correspondence, notes, and related material from automatic police seizure. Officers must seek judicial approval to access such material, ensuring a balance between police investigation rights and journalistic confidentiality.

The Head of the Crime, Fraud and Regulatory team at Bindmans, Katie Wheatley, who represented LXP in court, told The Guardian newspaper:

“Fundamental protections” applicable to journalists would have been lost if the police had won the case, partly because it is easy for them to assert that material leaked to their client was stolen from the government or elsewhere.

“If the Order had been upheld, vitally important legal safeguards that protect journalistic material would have been watered down”, and police could have obtained information from and about sources “no matter the public interest value”.

In October, 2020, the Law Commission, the Government’s independent body on law reform, concluded that confidential journalistic material should still only be obtained under the Police and Criminal Evidence Act 1984 (PACE) in “very limited circumstances”.

But it added: “We recommend that the Government considers whether the law governing access to confidential journalistic material under PACE strikes the right balance between the competing interests at play, and whether the law ought to be reformed.”

Ian Murray, Executive Director of the Society of Editors, said at the time that it was an established custom of PACE legislation that special protection was afforded to journalistic material, and that an exemption for confidential journalistic material remained essential to protect the public’s right to know.

He said: “The Law Commission’s recommendation that the Government should review access to journalistic material under PACE is extremely worrying if it leads to weakened protections for journalistic material and sources.

“Under current legislation, PACE affords special protection to journalistic material and it is essential that, going forward, an exemption is similarly included in any draft legislation.

“The laws around police seizure of journalistic material require urgent need of strengthening – not watering down.

“Journalists must have confidence that their material remains protected if they are to guarantee source protection and ultimately fulfil their important public interest roles.”

The full judgment of the landmark LXP case, handed down on 10th November, 2023 and published on BAILII, can be read at this weblink.

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Page last updated: Sunday 12th November, 2023 at 0745 hours

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