Its judgment, issued by Lady Justice Macur and Mr Justice Garnham on Friday after a series of hearings held entirely in secret, is being hailed as a significant victory for the freedom of the press and investigative reporting.
The Independent understands that the case – which is thought to have cost the police more than £1m in operational and legal costs – is being viewed with dismay in Whitehall, and is set to worsen the already-strained relationship between ministers and the Met commissioner, Sir Mark Rowley.
Friday’s judgment is the first event that can be reported in what is already a 17-month legal saga because until now, its every twist and turn has been suppressed by gagging orders. Even now, the identity of the freelance journalist at the heart of the story has to be concealed: in the judgment, they are named only as “LXP”.
The saga began on 8 July last year, when the Met obtained a search warrant from Judge Mark Lucraft KC, the recorder of London, the most senior judge at the Old Bailey, to search LXP’s home. The police claimed that LXP had received information from two sources, both crown servants, who were described in Friday’s judgment as “X” and “Y”. According to the Met, both the alleged sources and LXP had breached the Official Secrets Act.
LXP had worked with reporters from several newspapers researching high-profile stories about aspects of national security and defence, including the acquisition of British military technology by China. The Met claimed that LXP’s information must have come from these sources – an allegation LXP denied.
Four days after the warrant was issued, in the small hours of 12 July, dozens of officers from Special Branch and SO15, the Met’s anti-terrorist squad, raided LXP’s flat. There and at their place of work, they seized electronic devices, notebooks and other documents.
In legal filings and in the secret hearings that ensued, LXP tried to prevent the police from trawling through the devices and material they had seized, arguing that the warrant had been unlawful. As a journalist, LXP’s lawyers argued, they should have been entitled to legal measures designed to protect the freedom of the press, such as the Human Rights Act and the Police and Criminal Evidence Act.
For months the police tried to assert that LXP was not a journalist at all. Then, after being presented with evidence that they were, the Met abruptly changed the basis of its case. The force now accepted that LXP was a journalist after all – but went on to argue that because it suspected that LXP’s notebooks and devices concerned what it termed “stolen” material, police still had the right to seize and inspect it.
In March, Judge Lucraft issued an order stating that he agreed. There was, he ruled, a “clear distinction” between what he called “true journalistic material and material that has been stolen”. That meant there was no need to take the various legal measures designed to protect press freedom into account.
The implication, legal experts say, was immense. Judge Lucraft’s order would have affected cases that had nothing to do with official secrets or national security. If upheld, it would have meant that if the police had reason to suspect that a journalist was in possession of information that had been divulged without the permission of its owner, they could carry out a raid and seize devices and documents, as they had from LXP.
Katie Wheatley, LXP’s solicitor at the London law firm Bindmans, commented: “Parliament has established a delicate balance between essential protections for journalistic material and the public interest in effective criminal investigations. The order obtained by the Metropolitan Police would have ridden roughshod over that balance.
“If the order had been upheld, vitally important legal safeguards that protect journalistic material would have been watered down, making it easier for police to seize or obtain journalistic material, including confidential source material, no matter what the public interest value of the story.”
It is understood that fighting the case thus far has already cost LXP a six-figure sum in legal fees. But after Judge Lucraft’s order, LXP obtained support from the National Union of Journalists and the Free Speech Union and sought to overturn it by a High Court judicial review.
Friday’s judgment was the outcome – a devastating rebuke for the police and a complete reversal of Judge Lucraft’s order.
LXP’s lawyers, led by Alex Bailin KC, had advanced five separate legal grounds to argue that the order was wrong. The Met’s lawyers had claimed that these were so weak that they could not be advanced in court, and that LXP’s judicial review case should be summarily dismissed.
However, all five grounds were upheld. “With respect to the learned judge,” the High Court judgment states, Judge Lucraft’s order was “a bold finding that flies in the face of binding authorities.”
If the Met still wished to proceed with its investigation, the High Court ruled, it could not examine the seized devices or documents unless it handed them over to an independent barrister, to whom LXP would be able to make representations as to why their contents constituted journalistic material.
The Met would then have to argue why there was an “overriding public interest” that would justify it being permitted to access them. In due course, this would be scrutinised in court.
In theory, the Met could appeal the High Court ruling to the Court of Appeal and then possibly to the Supreme Court. But speaking on condition of anonymity, a senior government source suggested this would not be welcome. “Press freedom should always be at the front and centre of our considerations. This looks like a concerning case. Careful thought should be given to any next steps.”
A Met spokesperson said: “We are aware of the ruling and will consider the findings. We are not prepared to discuss this further.”