Journalists: police access to source material on a phone

Section 13 of the Police and Criminal Evidence Act 1984 (PACE) says that, subject to subsection (2), “journalistic material” means material acquired or created for the purposes of journalism. Material is only journalistic material if it is in the possession of a person who acquired or created it for the purposes of journalism (s.13(2)), and a person who receives material from someone who intends that the recipient shall use it for the purposes of journalism is to be taken to have acquired it for those purposes (s.13(3)).

Section 11(1) says that, subject to the following provisions of s.11, “excluded material” means personal records which a person has acquired or created in the course of any trade, business, profession or other occupation or for the purposes of any paid or unpaid office and which he holds in confidence; human tissue or tissue fluid which has been taken for the purposes of diagnosis or medical treatment and which a person holds in confidence; and journalistic material which a person holds in confidence and which consists of documents or of records other than documents. Under s.11(2), a person holds material other than journalistic material in confidence if he holds it subject to an express or implied undertaking to hold it in confidence, or to a restriction on disclosure or an obligation of secrecy contained in any enactment, including an enactment contained in an Act passed after PACE. Under s.11(3), a person holds journalistic material in confidence if he holds it subject to such an undertaking, restriction or obligation, and it has been continuously held (by one or more persons) subject to such an undertaking, restriction or obligation since it was first acquired or created for the purposes of journalism.

Section 14(1) says that “special procedure material” means material to which subsection (2) applies, and journalistic material, other than excluded material. Subject to the following provisions of s.14, subsection (2) applies to material, other than items subject to legal privilege and excluded material, in the possession of a person who acquired or created it in the course of any trade, business, profession or other occupation or for the purpose of any paid or unpaid office, and who holds it subject to an express or implied undertaking to hold it in confidence, or to a restriction or obligation such as is mentioned in section 11(2)(b). s.14(3) and (4) are quoted on the employer-owned phone page.

Each definition carries the conditions set out above as worded, including “continuously held” in s.11(3) and “only … if it is in the possession of a person who acquired or created it for the purposes of journalism” in s.13(2).

Section 8(1) is worded as a list of matters of which, if a justice of the peace is satisfied that there are reasonable grounds for believing them, he may issue a warrant; one of the matters is that the material “does not consist of or include items subject to legal privilege, excluded material or special procedure material” (s.8(1)). Section 113(3)(b) of the Serious Organised Crime and Police Act 2005 says that, in s.8(1) of the 1984 Act, in paragraph (e), at the end, the words “in relation to each set of premises specified in the application” are added (s.113 of the 2005 Act); the revised text prints them at the end of the subsection. The other matters, and the conditions in s.8(3), are on the warrants and premises page; how England and Wales compares with other places is on the warrant comparison.

Section 9(1) says a constable may obtain access to excluded material or special procedure material for the purposes of a criminal investigation by making an application under Schedule 1 and in accordance with that Schedule (s.9(1)).

Section 9(2) says that any Act (including a local Act) passed before PACE under which a search of premises for the purposes of a criminal investigation could be authorised by the issue of a warrant to a constable shall cease to have effect so far as it relates to the authorisation of searches for items subject to legal privilege; for excluded material; or for special procedure material consisting of documents or records other than documents (s.9(2)).

Paragraph 1 of Schedule 1 to PACE says that if on an application made by a constable a circuit judge is satisfied that one or other of the sets of access conditions is fulfilled, he may make an order under paragraph 4. Paragraph 2 says the first set of access conditions is fulfilled if:

• there are reasonable grounds for believing that an indictable offence has been committed; that there is material which consists of special procedure material or includes special procedure material and does not also include excluded material on premises specified in the application, or on premises occupied or controlled by a person specified in the application (including all such premises on which there are reasonable grounds for believing that there is such material as it is reasonably practicable so to specify); that the material is likely to be of substantial value (whether by itself or together with other material) to the investigation in connection with which the application is made; and that the material is likely to be relevant evidence;
• other methods of obtaining the material have been tried without success, or have not been tried because it appeared that they were bound to fail; and
• it is in the public interest, having regard to the benefit likely to accrue to the investigation if the material is obtained, and to the circumstances under which the person in possession of the material holds it, that the material should be produced or that access to it should be given.

The first set is worded as material that “does not also include excluded material”. Paragraph 3 says the second set of access conditions is fulfilled if there are reasonable grounds for believing that there is material which consists of or includes excluded material or special procedure material on premises specified in the application, or on premises occupied or controlled by a person specified in the application (including all such premises on which there are reasonable grounds for believing that there is such material as it is reasonably practicable so to specify); but for section 9(2) a search of such premises for that material could have been authorised by the issue of a warrant to a constable under an enactment other than Schedule 1; and the issue of such a warrant would have been appropriate.

Paragraph 4 says an order under that paragraph is an order that the person who appears to the circuit judge to be in possession of the material to which the application relates shall produce it to a constable for him to take away, or give a constable access to it, not later than the end of the period of seven days from the date of the order or the end of such longer period as the order may specify. Where the material consists of information stored in any electronic form, an order under paragraph 4(a) has effect as an order to produce the material in a form in which it can be taken away and in which it is visible and legible or from which it can readily be produced in a visible and legible form, and an order under paragraph 4(b) has effect as an order to give a constable access to the material in a form in which it is visible and legible.

Paragraph 7 says an application for an order under paragraph 4 that relates to material that consists of or includes journalistic material shall be made inter partes. Paragraph 14(d), set out in the next section, is one of the further conditions mentioned in paragraph 12(a)(ii): that service of notice of an application for an order under paragraph 4 may seriously prejudice the investigation.

Paragraph 11 of Schedule 1 is a duty on a person served with notice, and its words are: “Where notice of an application for an order under paragraph 4 above has been served on a person, he shall not conceal, destroy, alter or dispose of the material to which the application relates except— with the leave of a judge; or — with the written permission of a constable, until— the application is dismissed or abandoned; or — he has complied with an order under paragraph 4 above made on the application” (Schedule 1, para 11). As quoted, para 11 is worded as a prohibition; this page does not set out the consequences of breaching it.

Paragraph 15 says that if a person fails to comply with an order under paragraph 4, a circuit judge may deal with him as if he had committed a contempt of the Crown Court, and that any enactment relating to contempt of the Crown Court has effect in relation to such a failure as if it were such a contempt.

Paragraph 12 of Schedule 1 says that if on an application made by a constable a circuit judge is satisfied that either set of access conditions is fulfilled and that any of the further conditions set out in paragraph 14 is also fulfilled in relation to each set of premises specified in the application, or is satisfied that the second set of access conditions is fulfilled and that an order under paragraph 4 relating to the material has not been complied with, he may issue a warrant authorising a constable to enter and search the premises or (as the case may be) all premises occupied or controlled by the person referred to in paragraph 2(a)(ii) or 3(a), including such sets of premises as are specified in the application (an “all premises warrant”). The judge may not issue an all premises warrant unless he is satisfied that there are reasonable grounds for believing that it is necessary to search premises occupied or controlled by the person in question which are not specified in the application, as well as those which are, in order to find the material in question, and that it is not reasonably practicable to specify all the premises which he occupies or controls which might need to be searched.

The further conditions mentioned in paragraph 12(a)(ii) are:

• that it is not practicable to communicate with any person entitled to grant entry to the premises;
• that it is practicable to communicate with a person entitled to grant entry to the premises but it is not practicable to communicate with any person entitled to grant access to the material;
• that the material contains information which is subject to a restriction or obligation such as is mentioned in section 11(2)(b), and is likely to be disclosed in breach of it if a warrant is not issued; and
• that service of notice of an application for an order under paragraph 4 may seriously prejudice the investigation.

Paragraph 13 says that a constable may seize and retain anything for which a search has been authorised under paragraph 12 (para 13).

Paragraph 7 (an application for an order, where the material includes journalistic material, is made inter partes) and the last condition above (service of notice of an application for an order may seriously prejudice the investigation) are set out in Schedule 1 as worded.

Section 19(6) says that no power of seizure conferred on a constable under any enactment (including an enactment contained in an Act passed after PACE) is to be taken to authorise the seizure of an item which the constable exercising the power has reasonable grounds for believing to be subject to legal privilege (s.19(6)). As quoted, s.19(6) names legal privilege and does not mention journalistic material. Section 50(4) of the Criminal Justice and Police Act 2001 says that section 19(6) of PACE shall not apply to the power of seizure conferred by s.50(2) of that Act (s.50(4)). Section 19(6) and s.50(4) are covered on the warrants and premises page and the seize and sift page.

Section 55(1) of the 2001 Act says that if, at any time after a seizure of anything has been made in exercise of a power to which that section applies, it appears to the person for the time being having possession of the seized property in consequence of the seizure that the property is excluded material or special procedure material, or has any excluded material or any special procedure material comprised in it, its retention is not authorised by section 56, and, in a case where the material is comprised in something else which has been lawfully seized, it is not comprised in property falling within subsection (2) or (3), it shall be the duty of that person to secure that the item is returned as soon as reasonably practicable after the seizure. Under s.55(4), the section applies (subject to subsection (5)) to each of the powers of seizure specified in Part 3 of Schedule 1 (s.55). Paragraph 84 of Schedule 1, in Part 3, lists the power of seizure conferred by section 8(2) of PACE (police power, on exercise of search warrant, to seize property searched for). Subsections (2), (3) and (5) of s.55 are referred to in the quoted words and are not set out on this site. As quoted, this page does not say whether s.55 applies to a seizure under any other power, such as s.19 of PACE.

Section 59 of the 2001 Act lists grounds for an application for the return of seized property, including a ground about excluded material or special procedure material seized under a power to which section 55 applies, with conditions of its own (s.59(3)); they are set out on the seize and sift page.

Section 37(1) of the Police, Crime, Sentencing and Courts Act 2022 says an authorised person may extract information stored on an electronic device from that device if a user of the device has voluntarily provided the device to an authorised person, and that user has agreed to the extraction of information from the device by an authorised person.

Section 43(1) says that in that Chapter “confidential information” means information which constitutes or may constitute confidential journalistic material within the meaning of the Investigatory Powers Act 2016 (see section 264(6) and (7) of that Act), or protected material. Section 43(2) defines “protected material” separately for England and Wales, for Scotland and for Northern Ireland; for England and Wales it means items subject to legal privilege, within the meaning of PACE (see section 10 of that Act); material falling within section 11(1)(a) of that Act (certain personal records held in confidence); or material to which section 14(2) of that Act applies (other material acquired in the course of a trade etc that is held in confidence).

Section 37(8) to (10) say that if the authorised person thinks that, in exercising the power in s.37(1), there is a risk of obtaining confidential information, then to be satisfied that the exercise of the power is proportionate they must have regard to the amount of confidential information likely to be stored on the device and its potential relevance to a purpose within s.37(2) (or s.41(2)) for which they may exercise the power, and be satisfied that there are no other means of obtaining the information sought which avoid that risk, or that there are such other means but it is not reasonably practicable to use them.

The extraction Code of Practice says, at para 93, that these powers must not be used where the intention is to extract confidential information, and that if the authorised person is seeking confidential information on the device that is relevant to the investigation, a different power such as, in England and Wales, the Criminal Justice and Police Act 2001, must be used to obtain it. At para 96 it says that in no circumstances should an authorised person ask a device user to waive their right to confidentiality for the purposes of obtaining confidential information, and that if a device user expresses their wish to do so, the authorised person should advise that this decision is only taken after the device user has received legal advice. At para 100 it says that where the device user is a lawyer or journalist and the device to be examined is used for their work, it may be reasonable to assume that their device will contain a high volume of the confidential information, and that in this scenario it is strongly advised that the authorised person should ask them whether confidential information is stored on their device.

Extraction by agreement is covered on the victims and witnesses page, and for a complainant on the complainant page.

Paragraph 5(a) of Schedule 7 to the Terrorism Act 2000 says that a person who is questioned under paragraph 2 or 3 must give the examining officer any information in his possession which the officer requests (para 5(a)). The Schedule 7 Code says the person must provide access to any electronic device to allow for a search to be undertaken, including where access to a device requires the person to unlock a device through application of their thumb or finger, or any other form of access control (Code, para 61). Paragraph 18(1) says a person commits an offence if he wilfully fails to comply with a duty imposed under or by virtue of that Schedule; wilfully contravenes a prohibition imposed under or by virtue of that Schedule; or wilfully obstructs, or seeks to frustrate, a search or examination under or by virtue of that Schedule (para 18(1)). The provisions below limit what an examining officer may ask or examine, and sit beside those duties.

The Code says that information requested by an examining officer under paragraph 5(a) may include passwords to electronic devices, and that an examining officer may not, however, compel a person to disclose or confirm the identity of a source of journalistic information or disclose information subject to legal privilege (Code, para 55). The limit on compelling disclosure is a rule for the examining officer. As quoted, it does not give the person a right to refuse any Schedule 7 duty.

The Schedule 7 Code of Practice says that an examining officer may not ask a question under paragraph 2 or 3 of Schedule 7 where they have reasonable grounds to believe that the answer to the question would require a person to disclose or confirm the identity of a source of journalistic information or disclose information subject to legal privilege (Code, para 44). Paragraph 44 limits the questions an officer may ask. As quoted, it does not say that a person may refuse to answer a question that is asked. It is not, as quoted, a right to refuse any Schedule 7 duty.

The Code says that, in the absence of any power other than Schedule 7 (such as Schedule 5 to the Terrorism Act 2000), material cannot be examined where the officer has reasonable grounds for believing it to be protected material, and that the officer may, however, examine any nonprotected material, subject to the conditions of the following paragraphs (Code, para 70). It defines “protected material” there as “confidential journalistic information” within the meaning of section 264(6) and (7) of the Investigatory Powers Act 2016; material which identifies or confirms a “source of journalistic information” within the meaning of section 263(1) of that Act; “items subject to legal privilege” within the meaning of section 263(1) of that Act; personal records which a person has acquired or created in the course of any trade, business, profession or other occupation or for the purposes of any paid or unpaid office and which he holds in confidence (see the definition of “excluded material” in section 11(1)(a) of PACE); and human tissue or tissue fluid which has been taken for the purposes of diagnosis or medical treatment and which a person holds in confidence (see section 11(1)(b) of that Act).

Paragraph 71 of the Code says that if before an examining officer examines or copies an article, the officer has reasonable grounds for believing that the article consists of or includes protected material, the officer must only proceed to examine the article or make the copy if the protected material is capable of being separated from non-protected material; that if the officer has developed such reasonable grounds during the process of examining the article or copy, the officer must cease examining the article or copy and may only subsequently continue to examine it if the non-protected material has been separated from the protected material; and that, save as to any other power applying which permits retention, where it is assessed that protected material within an article or copy cannot be separated from non-protected material the article must be returned to the person from whom it was taken, and any copies of the article must be destroyed (Code, para 71). Paragraphs 70 and 71 limit what an officer may examine. They are rules for the examining officer. As quoted, they do not give the person a right to refuse any Schedule 7 duty.

The Code says the examining officer should consider whether it is reasonably practicable for the protected material to be separated at the time and place of the Schedule 7 examination; that this can be done either using the sifting and independent review process described below, or in any other manner designed to prevent the examining officer or any other officer involved in an examination under Schedule 7 from accessing the protected material; and that if this is not reasonably practicable at the time and place of the Schedule 7 examination, the officer may retain the article or copy in accordance with paragraph 11 or 11A, as applicable, and during the retention period the sifting and independent review process in relation to an article or copy must be carried out (Code, para 72). One of the steps it lists is that, in cases where the material on the article or copy is electronic, voluminous and capable of being searched electronically, the person from whom the article has been taken (or from whose article a copy has been taken), or that person’s legal representative, must be given the opportunity to provide search terms to be applied to identify potential protected material; the ultimate decision as to which search terms are applied shall be for the relevant police force; those search terms must be applied by a member of the police digital forensic unit, who is independent of the Schedule 7 examination; the result of the search terms applied must be confined in a separate folder to which the examining officer and any other officer involved in the Schedule 7 examination do not have access; and any data which is not covered by the search terms can be provided to the examining officer for their review. That is the only step quoted on this page. It also says that an examining officer may only retain an article, or make and retain a copy of an article, which the officer has reasonable grounds for believing it consists of or includes protected material if the officer considers it necessary and proportionate to do so in accordance with paragraphs 11(2)(a)-(c) or 11A(3)(a)-(c) and a sifting and independent review process, or any other process designed to prevent the examining officer or any other officer involved in an examination under Schedule 7 examining the protected material, is possible (Code, para 75). These are rules for the examining officer. As quoted, they do not give the person a right to refuse any Schedule 7 duty.

The Schedule 7 duties and the Code are covered on the Schedule 7 page and the work phone at a port page, and in more depth on rightsandlimits.com’s Schedule 7 page.

Section 10 of the Contempt of Court Act 1981 says no court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime (s.10). It is worded about what a court may require and about contempt of court. As quoted, it does not mention a seizure, a Schedule 7 question or a section 49 notice. It is not, as quoted, a right to refuse any Schedule 7 duty.

Once in force, s.176 of the Crime and Policing Act 2026 will apply where information has been extracted under the power conferred by virtue of section 173(1) and it appears to any person accessing the information as a result of the exercise of that power that the information is, or contains, confidential information. Subject to subsections (3) and (7), as soon as reasonably practicable after accessing the confidential information, that person will have to ensure that the information is made inaccessible or, where the extraction involved a copy being made of the confidential information, that the copy is destroyed. That duty will not apply if the confidential information is comprised in other information which is not confidential information and it is not reasonably practicable for the confidential information to be separated from that other information without prejudicing its use in relation to a reasonable line of enquiry of the kind mentioned in section 173(2)(a); where it is so disapplied, the person accessing the confidential information will have to ensure that it is not examined or copied, or put to any use other than as mentioned in subsection (3)(b) (s.176). Once in force, s.176(5) and (6) will define “confidential information” for that section in its own terms: information which constitutes or may constitute confidential journalistic material within the meaning of the Investigatory Powers Act 2016 (see section 264(6) and (7) of that Act), or protected material; and, so far as the section applies to England and Wales, “protected material” will mean items subject to legal privilege, excluded material and special procedure material, each within the meaning of the Police and Criminal Evidence Act 1984. Those are the words of s.176 itself, and are worded separately from s.43 of the 2022 Act, set out above. The commencement regulations say that, subject to paragraph (2) of the regulation, sections 176(7) and 177 (extraction of online information: confidential information and code of practice) come into force on 29th June 2026 (S.I. 2026/689). The rest of the power is covered on the online accounts page.

This site does not quote UK case law, so it does not say how the courts have applied the definitions of journalistic material, excluded material or special procedure material, the Schedule 1 conditions, or s.10 of the Contempt of Court Act 1981.

Link only, not relied on as authority here: rightsandlimits.com on Schedule 7, and the police-seize-phone scenario on uklawreference.com. On this site: the RIPA notice page.