Two Belfast journalists were unlawfully placed under surveillance by two UK police forces, which spied on their phone communications and suspected confidential sources, a court has found.
The Investigatory Powers Tribunal (IPT) ruled today that the former chief constable of the Police Service of Northern Ireland (PSNI) unlawfully ordered an undercover surveillance operation that attempted to identify a confidential source who had supplied information to the journalists.
Journalists Trevor Birney and Barry McCaffrey were targeted after they produced a documentary exposing police collusion in the murders of six innocent Catholics watching a football match in Loughinisland in 1994.
The ruling is believed to be the first time the IPT has ordered a police force to pay damages to journalists for unlawful surveillance.
Following the tribunal’s investigation, the PSNI admitted it had spied on 500 lawyers and 300 journalists in Northern Ireland. Those targeted include more than a dozen journalists working for the BBC.
Today’s ruling is the second time the journalists, who made the documentary No stone unturned that exposed police failures to investigate the paramilitary murders in Loughinisland, have been vindicated by senior judges.
The high court in Belfast quashed arrest warrants issued by the PSNI and Durham Police against the journalists in 2019 in an operation it later emerged was intended as a “sting” to identify a confidential source who leaked information used in the documentary.
PSNI chief approved unlawful surveillance
The tribunal heard that former PSNI chief constable George Hamilton unlawfully approved an undercover surveillance operation against a civilian employee of Northern Ireland’s Police Ombudsman’s Office (PONI).
Hamilton unlawfully signed a directed surveillance authorisation (DSA) after being told that the Police Ombudsman official was the suspected source of a secret intelligence document leaked to the journalists, the tribunal concluded.
Journalists Barry McCaffrey (left) and Trevor Birney (right) were targeted after they produced a documentary exposing police collusion in the murders of six innocent Catholics watching a football match in Loughinisland in 1994
In a written judgment, the tribunal judges rejected claims that the surveillance operation had only been intended to track the Police Ombudsman official, rather than part of an operation to identify the journalists’ confidential sources.
“The authorisation, and any conduct following from it, were unlawful, because the chief constable did not consider whether there was an overriding public interest justifying an interference with the integrity of a journalistic source,” they said.
The judges found that the former PSNI chief constable’s decision to authorise the directed surveillance operation was “unlawful at common law” and that it violated the European Convention on Human Rights and the Human Rights Act 1998.
According to the judgment, Hamilton had failed to consider the need for an “overriding public interest” to place journalists and suspected sources under surveillance and had failed to consider the correct legal tests.
Police arrested the two journalists as part of a failed “sting” operation in 2018, which police hoped would lead Birney and McCaffrey to contact the suspected source in the PONI who had been placed under covert surveillance.
The PSNI should have been aware that there was a “serious basis for concern” that the surveillance warrants represented an unlawful interference with journalistic activities following a legal challenge by the journalists on the day they were arrested.
The tribunal found that the actions of the police when mounting the operation were disproportionate and undermined the domestic and international protections available to the media.
The judges, Lord Justice Singh, Lady Carmichael and barrister Stephen Shaw KC, quashed the DSA but ruled that a declaration of its unlawfulness did not go far enough to give to give the journalists “just satisfaction”, so they should also be given compensation.
Metropolitan Police surveillance unlawful
It emerged during the hearing that the Metropolitan Police obtained more than 4,000 text messages and phone communications belonging to Birney and McCaffrey and more than a dozen journalists working for BBC Northern Ireland’s investigative TV series Spotlight, including former BBC journalist Vincent Kearney.
The tribunal subsequently ruled that the Met Police, which acted on behalf of the PSNI, had unlawfully obtained telephone data belonging to McCaffrey in 2012.
It also found the Met had unlawfully shared the data with the PSNI and Durham Constabulary, which acted on behalf of the PSNI when the two journalists were arrested in 2018.
PSNI spied on McCaffrey after he phoned press office
Separately, the tribunal ruled that the PSNI had unlawfully placed McCaffrey’s phone under surveillance in 2013, in breach of his rights under Article 8 and Article 10 of the European Convention on Human Rights.
The judgment highlights the urgent need for reform. The police need to change, they should respect press freedom, they must abide by the rule of law and uphold the democratic principles of transparency and accountability Barry McCaffrey
The tribunal heard that the PSNI ran a covert surveillance operation against McCaffrey after he had phoned the PSNI press office enquiring about alleged bribes paid to a senior PSNI official, despite McCaffrey’s cooperation in agreeing to delay publication of the story.
The PSNI application for McCaffrey’s phone records acknowledged that the operation would expose sensitive journalistic information to the police, while police documents repeatedly described McCaffrey as a “suspect” rather than a journalist.
The PSNI obtained 10 pages of McCaffrey’s outgoing communications data from his phone and there was no dispute that the “aim of the exercise was to discover the source of his information”.
“PSNI concede, rightly, that he is a victim of an act incompatible” with his rights under the European Convention on Human Rights to protect the identity of confidential sources, the judges said.
The judgment rejected arguments that a detective from Durham Constabulary unlawfully asked Apple to preserve Birney’s work emails from Apple’s iCloud service on the grounds that it was a voluntary request that Apple did not have to comply with.
The judges said they did not need to make a decision about the accuracy of claims by the detective that Apple needed to take action to prevent risk to life.
MI5 made secret submissions
During the tribunal hearings, the BBC sought to join Birney and McCaffrey’s complaint. The tribunal refused the request following secret submissions by MI5 in a closed hearing.
The court heard in an open hearing that it would take MI5 many months to work through material it had gathered relating to surveillance of journalists’ sources and that the intelligence service would not be ready in time for the tribunal to hear Birney and McCaffrey’s case.
It is now unclear whether the tribunal will consider surveillance of BBC journalists.
The tribunal judgment has ordered the PSNI to pay £4,000 each in damages to Birney and McCaffrey, matching damages previously awarded by the European Court of Human Rights to journalists who were subject to state surveillance to identify their sources.
Police abuse of power
Commenting on the verdict, Birney said: “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. Our case has exposed the lack of effective legal safeguards governing secret police operations.
“As a result of our case going to the Investigatory Powers Tribunal, the PSNI has already been forced to admitted that they spied on 300 journalists and 500 lawyers in Northern Ireland. Only a public inquiry can properly investigate the full extent of unlawful and systemic police spying operations targeting journalists, lawyers and human rights defenders in the north,” he added.
McCaffrey said the judgment had exposed critical failures in the monitoring and oversight of surveillance operations carried out against journalists and their sources.
“Despite all of their efforts, the police were still unable to identify our sources for the film. They wasted police time and resources going after us instead of the Loughinisland killers,” he said.
“The judgment, particularly its condemnation of Sir George Hamilton’s leadership, highlights the urgent need for reform. The police need to change, they should respect press freedom, they must abide by the rule of law and uphold the democratic principles of transparency and accountability,” he added.
Since its formation in 2001, the IPT has conducted 4,073 investigations into complaints made against the intelligence agencies and police surveillance units. It has only upheld 1% (47) of those complaints.