The Investigatory Powers Tribunal has ruled that a police surveillance operation deployed against journalists Barry McCaffrey and Trevor Birney was unlawful.
The tribunal, chaired by Lord Justice Singh, awarded damages of £4,000 each to the documentary makers in a judgment issued on Tuesday morning.
The ruling quashed the decision made by former Police Service of Northern Ireland (PSNI) chief constable Sir George Hamilton to approve the Directed Surveillance Authorisation (DSA) in an investigation into the leaking of a confidential document that appeared in their documentary on a Troubles massacre.
The IPT had been examining allegations that the award-winning journalists were subject to unlawful covert surveillance by UK authorities.
The tribunal also probed separate allegations that the PSNI and the Metropolitan Police in London unlawfully accessed McCaffrey’s phone data in unrelated operations in 2013 and 2012 respectively.
The two forces had already conceded that those 2012 and 2013 operations were unlawful. The tribunal also quashed the two authorisations for those two phone data operations, but did not award any damages to McCaffrey in those cases.
In 2018, Belfast-based McCaffrey and Birney were arrested as part of a police investigation into the alleged leaking of a confidential document that appeared in a documentary they made on the 1994 UVF massacre in Loughinisland, Co Down.
The PSNI, citing a conflict of interest, asked Durham Police to lead the investigation into the inclusion of the Police Ombudsman for Northern Ireland document in the No Stone Unturned film on the pub shooting that claimed the lives of six men.
The PSNI later unreservedly apologised for how the men had been treated and agreed to pay £875,000 in damages to the journalists and the film company behind the documentary.
The settlement came after a court ruled that the warrants used by police to search the journalists’ homes and Fine Point Films had been “inappropriate”.
In 2019, Birney and McCaffrey lodged a complaint with the IPT asking it to establish whether there had been any unlawful surveillance of them.
In court proceedings earlier this year, the tribunal heard that a detective requested the DSA from Hamilton in order to monitor whether the two reporters would reach out to their source in the week after their initial release from custody.
Hamilton gave the green light for the covert surveillance of an individual whom officers suspected of being the source of the leaked document from the Police Ombudsman’s office.
In its judgment, the IPT said: “We will quash the DSA. We have determined that a declaration of its unlawfulness would not be sufficient to afford the claimants just satisfaction in respect of its incompatibility with the rights protected by Article 10 (of the European Convention of Human Rights).”
‘Judgment serves as a warning that unlawful surveillance against journalists cannot be justified’
At a press conference in London on Tuesday, Trevor Birney called for a public inquiry.
“This landmark ruling underscores the crucial importance of protecting press freedom and confidential journalistic sources,” he said.
“We hope that the judgment today will protect and embolden other journalists pursuing stories that are in the public interest.
“The judgment serves as a warning that unlawful state surveillance targeting the media cannot and should not be justified by broad and vague police claims.
“The judgment raises serious concerns about police abuse of power and the law, and our case has exposed a lack of effective legal safeguards governing secret police operations.”
Birney added: “Only a public inquiry can properly investigate the full extent of unlawful and systematic police spying operations targeting journalists, lawyers and human rights defenders in the north.”
McCaffrey added: “For this court to have found that a Chief Constable has acted unlawfully, we think is a major embarrassment, and it’s something that needs there to be a public inquiry.
“No other alternative – we need a public inquiry.”
Amnesty International said the judgment was “a landmark case for press freedom”.
Its Northern Ireland Director Patrick Corrigan said: “The right of journalists to protect their sources is a cornerstone of a free society, and the PSNI saw fit to ride roughshod over every human rights safeguard designed to protect that right.
“The revelation via the Tribunal that the PSNI spied on staff from the Office of the Police Ombudsman – the statutory body which investigates police wrongdoing – should worry everyone who cares about policing and police oversight in Northern Ireland.
“The truth has had to be dragged kicking and screaming into the light, and today’s judgment is testament to the tenacity and determination shown by Trevor Birney and Barry McCaffrey.
“Accountability must follow culpability and we now need cast-iron safeguards to prevent the PSNI from further abuse of covert surveillance powers against journalists and others in Northern Ireland. There can be no recurrence of the unlawful practices which have seen the police treat press freedom with utter contempt.
“While the police saw fit to arrest journalists exposing police collusion in protecting the paramilitary killers of six men in the village of Loughinisland in June 1994, twenty years on they have still arrested no-one for those murders. Our thoughts are with the bereaved families on this day.”
Laura Davison, newly appointed general secretary of the National Union of Journalists, said the ruling had “profound implications for media freedom in the UK”.
She said: “By taking the case to the IPT Barry McCaffrey and Trevor Birney have been responsible for shedding light on a very dark episode in the murky history of surveillance against journalists. Our union has always been concerned at the secretive nature of the IPT and the lack of transparency in how evidence may be heard. The public sessions and the tenacious quest for answers by the various legal teams provided an insight into the operation of the IPT, as well as insights into the way in which decisions were taken by those responsible for policing in Northern Ireland.
“We learned some of what happened to Barry McCaffrey and Trevor Birney. Many questions remain unanswered. The IPT hearing cannot be the end of this matter since it has raised so many fundamental questions.”
And Dawn Alford, executive director of the Society of Editors described the ruling as “a huge victory for press freedom and the ability of journalists to pursue stories in the public interest.
“The ruling, while welcome, nonetheless highlights the lack of sufficient safeguards against the police conducting covert surveillance of journalists and we now urgently need additional legislation to protect the rights of journalists and their sources and ensure that this cannot happen again.
“Journalism is not a crime and reporters must be free to properly scrutinise and hold power to account on behalf of the public.”
PSNI chief: ‘Significant changes have already been made’
Responding to the judgment, PSNI Chief Constable Jon Boutcher said he was committed to ensure his officers used the powers available to them in a way that was “lawful, proportionate and accountable”.
“I accept the Investigatory Powers Tribunal’s judgment that due consideration was not given to whether there was an overriding public interest in interfering with journalistic sources before authorising surveillance, which importantly, although it was not directed toward the journalists Mr McCaffrey and Mr Birney, it did impact them in 2018,” he said.
“This was one of a number of difficult decisions on a complex and fast-moving day for policing in Northern Ireland involving balancing competing interests at pace.
“Separately the Tribunal found that although officers complied with UK law and procedure at the time, a 2013 authorisation for communications data was a breach of our human rights obligations. I am pleased that the Tribunal found officers acted in good faith.
“Significant changes have already been made since these issues occurred, with the role of the Investigatory Powers Commissioners’ in authorising communications data requests and the Judicial Commissioners in cases involving those who handle confidential information.
“This is a detailed judgment and I will take time to consider and reflect on it and along with the findings of the McCullough Review (an independent probe into PSNI surveillance of journalists) in due course, to consider what further steps we can take. I am committed to ensuring that the Police Service of Northern Ireland use the powers available to us in a way that is lawful, proportionate and accountable.”
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