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July 10, 2020

‘Landmark’ press freedom victory as Belfast judges back journalists in Loughinisland case

By Charlotte Tobitt

Two journalists in Belfast are celebrating a “landmark” press freedom victory after High Court judges quashed search warrants against them and put a “bold emphasis” on the right to protect a source.

The judges said that a hearing in which police applied for a search warrant for the homes and offices of Trevor Birney (pictured, right) and Barry McCaffrey (pictured, left) fell “woefully short of the standard required to ensure that the hearing was fair”.

Their judgment also backed the journalists’ actions throughout the case, saying they had done “exactly what one would expect a careful, professional investigative journalist to do in anticipation of any attempt to identify a source”.

Birney and McCaffrey were arrested and had their homes raided in 2018 over an allegation that they had stolen confidential material used in their 2017 film No Stone Unturned.

The documentary revealed for the first time the names of loyalists suspected of shooting dead six men at a bar in Loughinisland, County Down, while they watched Ireland play in the 1994 World Cup.

The police investigation into McCaffrey and Birney was dropped after they had been kept on bail for ten months following an initial ruling that quashed the warrant authorising police raids on them.

The ruling also ordered police to return their seized journalistic materials, including computers, hard drives, mobile phones, files and notepads.

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The full judgment, handed down today, found that in the August 2018 hearing in which the warrants were originally granted, the judge was not advised that freedom of expression rights under Article 10 of the European Convention on Human Rights were engaged.

It was also not made clear to him that a warrant like this could “only be justified by an overriding requirement in the public interest”.

“This issue was absolutely fundamental to whether or not a warrant should be issued and the failure to address it means that we can have no confidence that the trial judge applied the right test,” the judgment said.

Protection of sources

Police said they didn’t serve the alternative, a notice that would have required the journalists to produce material within seven days, because McCaffrey had previously declined to voluntarily provide the Metropolitan Police with material about a source in an earlier investigation.

McCaffrey, through his solicitors, had told the Met he was relying on the National Union of Journalists’ code of practice which puts an obligation on journalists to protect their sources.

The judgment said: “This action on the part of Mr McCaffrey was presented to the judge in support of the proposition that a journalist adhering to the Code was likely to commit contempt of court by destroying relevant material if notice of an application was served upon him.

“We reject that submission. If correct it would completely undermine the important role that journalistic sources play in our democratic society.”

The original judge was also told of the importance of Article 2 of the Convention because of the risk to the life of those named, but the latest judgment said this was done without any evidence of the actual risk being assessed.

In fact the journalists, “being responsible people”, had already done their due diligence and met with a police officer who did not ask them not to identify the suspects. They did, however, refrain from naming an alleged informant.

There was also an “inexplicable” failure to tell the original judge that the warrant could only relate to paper documents believed stolen and not the taking of any digital material, while there was “not a shred of evidence” to suggest the disclosure had represented a danger to the Office of the Police Ombudsman for Northern Ireland in breach of the Official Secrets Act.

The material at the centre of the allegation against the journalists belonged to the Police Ombudsman for Northern Ireland. The PSNI asked Durham Police to investigate to avoid any conflict of interest issues.

As a result of the warrants, police obtained emails in which Birney and McCaffrey discussed the risk of police trying to find the source of the leak. Both were “anxious to ensure that they should take all steps to try to protect the identity of the source including the deletion of material”, the judgment said.

It went on: “There is nothing suspicious or inappropriate about this. It is exactly what one would expect a careful, professional investigative journalist to do in anticipation of any attempt to identify a source.

“It does not lead to any inference that such a journalist would commit a contempt of court.”

The judges concluded that the conduct of the original hearing “fell woefully short of the standard required” to ensure it was fair.

They added that they could not see any “overriding requirement in the public interest which could have justified an interference with the protection of journalistic sources in this case”.

Police ‘acted outrageously’

The NUJ said the judgment was a “vindication of the union’s ethical code of conduct and a victory for all journalists who abide by the principle of source protection”.

Its general secretary Michelle Stanistreet said: “This case is an important and historic victory for all journalists working in the public interest.

“We very much welcome the decision of the judges to quash the warrants and the bold emphasis they have placed on the right of journalists to protect their sources.

“Today they have clearly stated that the most appropriate procedures to use in law in any attempt to access journalistic material is not ex parte search warrants.

“Journalists must not be treated as criminals, they must not have their homes and offices raided, simply for doing their jobs.”

Amnesty International’s Northern Ireland programme director Patrick Corrigan described the judgment as a “landmark decision for press freedom in the UK”.

“The police acted outrageously against the two journalists in this case, and it is welcome that Northern Ireland’s Lord Chief Justice has now set out guidance which should mean this sort of undue interference with press freedom never happens again.

“As a result of their wrongful actions, the police damaged public confidence in policing in Northern Ireland. The Chief Constables of Durham Constabulary and the PSNI owe apologies to Trevor Birney and Barry McCaffrey, their families and colleagues.”

Picture: Liam McBurney/PA Wire

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