See the Met. Police News Release. This decision was taken after consultation with the CPS and other lawyers. The application would have been under PACE 1984.
See The Guardian's article - published late on the evening of 20th September - "Met Police drop action against The Guardian."
The Metropolitan Police are seeking the identity of The Guardian news paper's sources in relation to telephone hacking - please see Law and Lawyers "Is the Official Secrets Act about to be used to gag journalism" - (below).
It has now been indicated that the Police and Criminal Evidence Act 1984 (PACE) section 9 may be invoked. This section is in Part II of PACE which is headed "Powers of Entry, Search and Seizure." Part II contains sections 8 to 23.
Section 8 is a power granted to Justices of the Peace (JP) to authorise a constable to enter and search premises. The authority may only be granted if the JP is satisfied that there are reasonable grounds to believe that a number of conditions apply including reasonable grounds to believe that there is material on premises which is likely to be of substantial value to the investigation of an indictable offence. However, this power may not be used to search for items subject to legal privilege or "excluded material" or "special procedure material." For those three categories, Parliament considered it necessary to have the authority of a Judge as opposed to a JP.
PACE s.9 therefore states that 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 of PACE.
Journalistic material is defined in PACE s.13 - it is basically "material acquired or created for the purposes of journalism."
"Excluded material" is defined in PACE s.11 -and includes "journalistic material which a person holds in confidence and which consists - (i) of documents; or (ii) of records other than documents" - see s.11 (1)(c).
"Special procedure material" is defined in PACE s.14 and includes "journalistic material, other than excluded material" - see s.14(1)(b).
Offences under the Official Secrets Acts are indictable - (that is, triable in the Crown Court). If the Police are investigating such offences and wish to obtain journalistic material they will therefore have to apply to a court as required by PACE s.9 and Schedule 1.
PACE 1984 Schedule 1 - Production Orders under para. 4
Schedule 1 is entitled "Special Procedure." Paragraph 1 of the Schedule enables a Judge to make an order under paragraph 4 of the Schedule if he is satisfied that one or other of the sets of access conditions are met. The "access conditions" are set out in paragraphs 2 and 3. So, let us assume that the Judge agrees that the access conditions are met then he may - under paragraph 4 - order
Case Law: R v Central Criminal Court, The Guardian, The Observer and Martin Bright  EWHC 560 (QB)