Britain’s most secret court is investigating claims that UK agencies unlawfully monitored the phone communications of two Northern Ireland journalists.
The Investigatory Powers Tribunal (IPT) has agreed to investigate whether the Police Service of Northern Ireland (PNSI), Durham Constabulary, GCHQ and MI5 used intrusive surveillance in an attempt to identify the journalists’ sources.
Trevor Birney and Barry McCaffrey were arrested and detained by the PSNI and Durham Police in 2018 under search warrants following their work on a film documentary, No stone unturned, which exposed police failures to investigate the paramilitary murder of six innocent people in Northern Ireland.
The warrants were subsequently overturned, and the journalists were awarded damages in 2020 following a judicial review that found the police had no justification to undertake the search, which aimed to find the source of a leaked document.
In a complaint submitted to the tribunal, the two journalists argue it is likely that other investigatory powers were used to attempt to identify their confidential sources. They have asked the IPT to investigate whether UK agencies obtained their communications data, or used other intrusive powers, such as equipment interference, interception, or accessing data about them on bulk databases of the population maintained by MI5 and GCHQ.
Four years after filing their complaint to the tribunal, the journalists have been told that the Police Service of Northern Ireland accessed McCaffrey’s phone records and data in 2013.
The journalists said they believe this covert state surveillance was linked to an open and legitimate press inquiry about police corruption at that time.
“To find out that the PSNI accessed my phone data in 2013 without my permission was a shocking discovery. I had no idea until very recently that my phone had been compromised in this way” Barry McCaffrey, journalist
“To find out that the PSNI accessed my phone data in 2013 without my permission was a shocking discovery,” said McCaffrey. “I had no idea until very recently that my phone had been compromised in this way,” he added.
The IPT told the journalists they had a case in March 2023 and scheduled an open hearing of the tribunal at the Royal Courts of Justice in London on 17 July. The hearing was cancelled when the PSNI disclosed that it no longer wanted to argue about time limitations in the case.
The tribunal confirmed in a ruling on 10 July that it will investigate the lawfulness of authorisations made under Section 22 of the Regulation of Investigatory Powers Act (RIPA) 2000, which allows UK agencies to collect communications data from phone or internet communications.
Communications data includes details of the senders and recipients of phone calls, emails and text, the time they were sent, and duration. Although communications data does not include the contents of communications, it can be used to build up a detailed picture of people’s contacts and to identify journalists’ confidential sources.
No stone unturned
The PSNI and Durham Police arrested Birney and McCaffrey in 2018, after they released a film, No stone unturned, which examined the police investigation into the killing of six men in Loughinisland, Northern Ireland, in 1994 and police collusion with paramilitary groups.
Police raided the journalists’ homes and offices, seizing highly confidential data stored on laptops, mobile phones and memory sticks. Officers also copied the contents of the company server, which contained confidential research files of multiple journalists and producers.
After a two-year legal battle, a judicial review by the High Court in Northern Ireland found, in a judgment published in July 2020, that Durham Constabulary had obtained the search warrants unlawfully.
The judgment reported: “We see no overriding requirement in the public interest which could have justified interference with the protection of journalistic sources in this case.”
The court ordered the Police Service of Northern Ireland to delete all data collected during the raids, but as Computer Weekly has previously reported, the PSNI said it was unable to delete terabytes of highly confidential journalistic material from its back-up tapes, despite the court order.
PSNI refused to say whether it had bugged phones
Birney said the two journalists had realised during the judicial review that the Police Service of Northern Ireland had them under surveillance in the lead-up to their arrests, but subsequently learned that the PSNI had been monitoring McCaffrey’s phone 10 years ago.
Birney said it was a “shocking development” to learn that his colleague’s phone had been monitored in 2013, saying it amounted to an “egregious attack on the freedom of the press”.
“In 2014, the PSNI had refused to state publicly if they’d bugged journalists’ phones, hiding behind the usual excuse of national security,” he said. “Thanks to the work of our legal teams, that excuse has been stripped away. What we’ve seen so far can only lead to a serious consideration of the relationship between journalists and the PSNI.”
Lawyers representing Birney and McCaffrey have asked the tribunal to investigate whether the journalists were monitored at the time the film was produced, during its release and afterwards, in addition to the 2013 state surveillance already disclosed.
The journalists have also asked the tribunal to identify all investigatory powers used against them, relevant authorisations and warrants, the results of any interception and the role of any officials involved.
The IPT is excepted to hold a hearing in autumn 2023, but it has yet to be confirmed whether it will take place in Belfast or London, or whether the hearing will be held in a secret session or open to the public.
National Union of Journalists (NUJ) assistant general secretary Séamus Dooley said: “By any measure, this is a shocking revelation and is the cause of utmost concern. It confirms that the actions which informed the arrest of the makers of No stone unturned were deeply rooted in a culture which has no place in a democratic society.
“Trust in the PSNI will not be restored if there is a constant attempt to conceal the truth or to put barriers in the way of those who seek to carry out journalism in the public interest,” he added.
The PSNI agreed to pay the journalists and their film production company damages of £875,000 after the High Court ruled the police had obtained “inappropriate” search warrants, and ordered them to return laptops, phones, documents and other material seized following the judicial review.