A recommended review of access to journalistic material under the Police and Criminal Evidence Act 1984 (PACE) poses a threat to press freedom, the Society of Editors (SoE) has warned.

Writing in response to the publication of the Law Commission’s proposed search warrants reforms today, the Society said that the Commission’s recommendation that the Government considers whether the law governing access to currently-excluded confidential journalistic material under PACE strikes the right balance between the competing interests at play, was extremely worrying.

Ian Murray, Executive Director of the SOE said that it was an established custom of PACE that special protection was afforded to confidential journalistic material and that an exemption for such material must remain in order to safeguard 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 journalists and their sources.

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

Safeguards currently contained under PACE put journalistic material under the categories of “excluded material” and “special procedure material”. The former relates to confidential journalistic material and non-confidential journalistic material comes under the remit of the latter.

In respect of excluded confidential journalistic material, the Commission said that the current regime is “too restrictive” with the potential to “impede serious criminal investigations”. The Commission went on to report that there are “strong arguments that there should not be an absolute blanket exemption to obtaining production orders and search warrants for confidential journalistic material” under PACE. 

Calling on the government to review the legislation, it said: “We consider that there is an arguable case that the law governing access to confidential journalistic material under PACE does not strike the right balance between the prevention and investigation of serious crime and the protection of journalistic sources. As a result, we recommend that the Government considers whether the law ought to be reformed.”

In respect of the treatment of journalistic material under “special procedure material”, the Commission said that greater clarity was needed from the government on what material comes under this category. Greater clarity would “better inform law enforcement agencies” and “reduce the risk of unlawful search and seizure” it said.

Murray said that, going forward, enhanced protections for confidential journalistic material from seizure by the police was essential to ensure the public’s right to know remained fulfilled.  

He added: “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 Law Commission started work on reviewing the legislation around search warrants in 2017 following a request from the Home Office and a series of high‑profile cases in which search warrants were declared unlawful. The Commission’s consultation paper was published in June 2018.

The 64 recommendations published today will make the law “simpler, fairer, more modern and efficient” whilst “striking a balance between improved investigative powers for law enforcement and greater safeguards for those being investigated” the Commission said.

Other proposals include:

• Strengthening law enforcement powers so they can successfully investigate crime, for example by extending the availability of warrants that allow a property to be entered multiple times, and for all properties controlled by an individual to be searched.
• Improving the procedure of applying for a warrant to reduce the number of mistakes and therefore unlawful warrants being executed.
• Ensuring that law enforcement is able to access electronic evidence, including that which is held remotely on servers, and copy required data whilst on site.
• Improving safeguards for those being investigated, for example by requiring them to be given a notice of powers and their rights and allowing them to request legal representation whilst their property is being searched.

Read the full report here.