The Security Service MI5 has admitted to unlawfully spying on the phone of former BBC investigative journalist Vincent Kearney.
The Investigatory Powers Tribunal (IPT) heard today that the security service has made a last-minute concession that it unlawfully monitored the phone of the former BBC Spotlight reporter.
Jude Bunting KC, representing the BBC and Kearney, who now works for RTÉ, told the tribunal that MI5 had conceded that it unlawfully accessed Kearney’s communications data in 2006 and 2009. It passed the data on to the Police Service of Northern Ireland (PSNI).
“This appears to be the first time in any tribunal proceedings that MI5 has accepted any interference with journalists’ communications data and publicly accepted doing so unlawfully,” he said.
The BBC and Kearney are bringing a legal challenge against the PSNI, Durham Constabulary, the Metropolitan Police and the UK government over allegations that police and MI5 unlawfully spied on the phones of BBC journalists working in Northern Ireland.
The court heard that MI5 belatedly disclosed its role on Wednesday last week, despite knowing about the issue for years, and knowing that its late disclosure would impact court hearings already scheduled in the case.
Bunting said that MI5 failed to reference Kearney as a journalist when it monitored his phone data, and did not take into account stricter tests required to access journalistic information.
MI5 accepted that the security service breached Kearney’s Article 10 and 8 rights under the European Convention of Human Rights, which protect the rights of journalists to protect their confidential sources, and their right to privacy.
PSNI admits unlawfully monitoring phones
The Police Service of Northern Ireland also conceded it acted unlawfully by issuing authorisations to obtain Kearney’s communications data on multiple occasions.
This included four authorisations relating to an investigation into the murder of PC Stephen Caroll in 2009, and multiple operations linked to Operation Erewhon – an investigation into alleged leaks from the Office of the Police Ombudsman in Northern Ireland – in 2012.
The PSNI also admitted to unlawfully obtaining Kearney’s phone data when the Metropolitan Police provided copies of data from Operation Erewhom to Durham Police.
It did so as part of an investigation, Operation Yurta, into alleged leaks from the Police Ombudsman in 2018 to journalists Barry McCaffrey and Trevor Birney, who exposed police collusion with a paramilitary group.
The PSNI made two further authorisations for Kearney’s phone data as part of Operation Samarium, an anti-corruption investigation, and four further authorisations relating to Operation Basanti, which investigated alleged leaks to Kearney.
Consistent failures by police
Bunting told the IPT that the admissions demonstrated there had been a “consistent failure by police to have a proper regard for the fundamental rights of freedom of expression and the essential role which journalists play in a democratic society” when seeking access to journalists’ communications data.
The court heard that MI5’s belated concession that it had unlawfully monitored Kearney’s phone communications, which was disclosed in a letter from the government legal department, would disrupt court hearings already scheduled.
“They must have known they would torpedo any chance of a hearing being heard in November,” Bunting told the court.
MI5 said it had obtained data from Kearney under the Regulation of Investigatory Powers Act – which preceded the Investigatory Powers Act – and that at that stage, the code of practice did not require a stricter test to access journalistic material.
MI5 said Kearney’s communications data was obtained in connection with material that related to national security information, the court heard.
Bunting said there had been serious and sustained illegality by the PSNI and other police forces in accessing journalists’ communications. “Now we see serious and sustained illegality on behalf of MI5,” he said.
The court heard that there was a “thematic overlap” between the PSNI and MI5, showing the same kind of behaviour and the same failure to have regard to Kearney’s journalistic status.
Bunting said the tribunal should consider additional ways that MI5 has interfered with journalists’ data it provided to the PSNI, which had not been disclosed in open court. “There may be disclosure concerns,” he said.
MI5 NCND policy may be challenged
He said that MI5 and other “non-core” participants had litigated the proceedings on the familiar principles of “neither confirm nor deny” (NCND).
“Here, we see MI5 publicly confirm it obtained data from Kearney and publicly confirm it obtained the data unlawfully,” Bunting told the court.
He said that had implications for other material from MI5 presented in closed hearings. The court was told in written submissions that there may be challenges to MI5’s NCND stance.
The Metropolitan Police Service (MPS) also conceded that it breached Kearney’s legal rights, by obtaining his communications data twice in 2012 and by storing it and providing the data to the PSNI in 2018.
Durham Police conceded that its officers sought, obtained, reviewed and used material supplied by the MPS as part of Operation Yurta, but argued that it did so on behalf of the PSNI. The PSNI has accepted liability for the MPS’s actions.
A barrister for MI5 said the security service did not accept that the timing of MI5’s concession that Kearney’s phone had been unlawfully monitored “is inappropriate or unreasonable”, but said it was not able to say more in open court.
Former BBC journalist Chris Moore is bringing a separate case against the PSNI and MI5. The IPT will make a decision whether the case should be joined to the case brought by Kearney and the BBC at a later date.
MI5 trampled right to protect sources
Speaking after the hearing, Patrick Corrigan, Amnesty International’s Northern Ireland director, said the case was important for media freedom and the right of journalists to protect their sources.
“The disclosure that MI5 has twice trampled human rights law by unlawfully prying into the phone records of a journalist in Northern Ireland is profoundly alarming,” he said.
“A journalist’s right to protect their sources is not a luxury, it is the bedrock of a free and fearless press. This is not just about one journalist, it is about the public’s right to know the truth,” Corrigan added.
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