Scotland Yard steps in it again

When last we heard from Britain's best-known law enforcement organization, the Metropolitan Police Service ("the Met" to native Britons, "Scotland Yard" to the rest of us who can't give up our Sherlock Holmes references), it had just lost its two top men to the News International phone-hacking scandal. Nevertheless, its two investigations into the matter carried on: Operation Weeting, focused on the phone-hacking itself, and Operation Elveden, centered on police corruption arising from alleged payments by News International to police officers.

Last Friday, 16 September 2011, the Guardian reported:

The Metropolitan police are seeking a court order under the Official Secrets Act to make Guardian reporters disclose their confidential sources about the phone-hacking scandal.

British newspapers exploded with denunciations of police overreach. Take, for instance, this 19 September editorial in the Telegraph:

The Act is a serious piece of legislation devised to deal with offences against the state: so why is it being used by the Metropolitan Police to force reporters to reveal their sources in the News International phone-hacking scandal?

Even outspoken critics of the Guardian, like the Daily Mail's Richard Littlejohn, took up the cudgels on the Guardian's behalf:

Attempting to use the Official Secrets Act to interfere with a legitimate journalistic investigation is outrageous. How dare the Yard claim that this information was not in the public interest? How dare they try to put the frighteners on reporters?

...

You can’t have a free society without a free Press.

This isn’t just an attack on the Guardian, it’s an attack on us all.

(The Guardian compiled a long list of supportive quotations from rival publications and public figures.)

On 19 September the Met issued a statement concerning its "production order". The statement read in part:

It has been reported that officers from Operation Weeting are in some way misusing the Official Secrets Act in relation to their inquiry. This is not true.

The application for a production order against the Guardian newspaper and one of its reporters is part of an inquiry by officers from the MPS Directorate of Professional Standards (DPS) Anti Corruption Unit, NOT Operation Weeting.

This application was made under the Police and Criminal Evidence Act (PACE), NOT the Official Secrets Act (OSA).

The OSA is only mentioned in the application in relation to possible offences that may have been committed in connection with the officer from Operation Weeting who was arrested on 18 August this year on suspicion of misconduct in a public office relating to unauthorised disclosure of information.

This Yank understands the foregoing to mean, "We're not demanding you tell us which copper spoke to you because you violated the OSA. We're demanding you tell us which copper spoke to you because s/he violated the OSA. And you have to comply because of PACE." (Forgive my barbaric American accent.)

So the Met's clarification boiled down to, "You got the details wrong." The Met was still seeking to compel the Guardian's reporter to reveal the name(s) of (a) source(s). That the order was being sought by a different group of Met officers and under the authority of a different statute than that reported by the press doesn't in the least diminish the chilling effect.

As of earlier today (21 September), the Met had suspended its attempt to obtain the production order.

In a sign that the statement was a postponement, rather than a legal retreat, a Met spokesman said: "The CPS [Crown Protective Service] has today asked that more information be provided to its lawyers and for appropriate time to consider the matter. In addition the MPS has taken further legal advice this afternoon and as a result has decided not to pursue, at this time, the application for production orders scheduled for hearing on Friday 23 September. We have agreed with the CPS that we will work jointly with them in considering the next steps."

The Met nevertheless will have to explain itself to the House of Commons' Home Affairs Committee on Friday.

This reminds me irresistibly of the Thomas Drake prosecution in the U.S. Drake was jailed and charged with leaking "government secrets" to the press. The secrets in question were evidence of about a billion dollars wasted by the N.S.A. on an outsourced software project. Although Drake was eventually released with a slap on the wrist, he still endured what the judge in the case called "four years of hell" in jail.

Both Drake and the Guardian's reporter were pursued by government agencies embarrassed by press revelations. It's beyond question that the attempt to punish whistle-blowing is contrary to the public interest. What remains to be seen is whether the Met will accept that fact.