Durham Police and the Police Service of Northern Ireland (PSNI) made “repeated and entirely unjustified” attempts to put two journalists under surveillance without seeking judicial authorisation, a court was told.
The Investigatory Powers Tribunal heard on Wednesday 28 February that the police forces engaged in a “covert strategy” to identify a confidential informant that provided a leaked document used in a documentary film that exposed collusion between the PSNI and a paramilitary group.
Journalists Trevor Birney and Barry McCaffrey were arrested by Durham Police and the PSNI in 2018 after they released a documentary No stone unturned, exposing police failures to investigate the murder of six innocent people in Loughinisland, County Down, by the Ulster Volunteer Force (UVF).
Durham Police, working with the PSNI, raided the journalists’ homes and the film production company Fine Point Films, and seized computers, notes, mobile phones and terabytes of journalistic data.
A barrister acting for the journalists told the tribunal:
The arrests of the journalists in 2018 were intended as a “disruption” operation the [Durham Police and the PSNI] hoped would cause the journalists to contact and confirm the identity of a confidential source;
A senior officer at Durham Police attempted to obtain Trevor Birney’s work emails from Apple’s iCloud service by wrongly claiming that lives were at risk;
The Metropolitan Police collected large quantities of communications data from McCaffrey’s phone in 2011 in a separate operation;
And the PSNI accepted that it had unlawfully accessed McCaffrey’s phone data in 2013 to identify the source of information about police corruption.
Birney and McCaffrey were exonerated in 2019 by the former Lord Chief Justice of Northern Ireland, Declan Morgan, in a judicial review, who found that Durham Constabulary and the PSNI unlawfully used search warrants in an attempt to identify Birney and McCaffrey’s sources.
The chief constable of the PSNI Simon Byrne apologised for the unlawful raids of Birney and McCaffrey, and for the stress caused to their families, and agreed to pay damages of £875,000.
No-one has ever been tried or convicted for involvement in the massacre.
Police attempted to obtain emails from Apple
Ben Jaffey KC, representing the journalists, said PSNI arrested Birney and McCaffrey to see whether they would attempt to contact and confirm the identity of a suspected informant who had been placed under surveillance.
L-R: Barry McCaffrey, Grahame Morris and Trevor Birney outside court
He told the court that documents disclosed to the tribunal showed a “covert strategy” was in place to “maximise evidence and intelligence gathering capabilities”.
“The nature of the operation was to arrest two journalists, with release the same day,” he said. “Aggressive covert attempts would be made to see if they got in touch with sources.”
Durham Police and PSNI gave undertakings to the High Court in Belfast that they would not examine the material seized from Fine Point Films until after a judicial review requested by the journalists’ legal advisers.
Jaffey said police investigators attempted to access emails belonging to Birney from US tech company Apple despite the undertakings.
“What was PSNI’s response? The next day, they went to Apple and made an emergency application for Mr Birney’s work email,” he said. “What was said to Apple was, ‘Lives were at risk’.”
The Emergency Law Enforcement Information Request was made by Darren Ellis, a former superintendent at Durham Constabulary, the court heard.
Given the strong legal protection for journalist sources in the US where Apple is based, “it rapidly became clear there was no prospect of US authorities disclosing information about a journalist source”, said Jaffey.
He said in written submissions that, as the Belfast High Court had found in 2019, there was no truth in the police claim that lives were at risk.
The journalists had discussed the matter with the PSNI before the film was released and no objections were raised. The film had been on general release for a year, so the request “could hardly be characterised as an emergency”.
The application to Apple in the US was an improper attempt to circumvent undertakings that the police forces had given to the court and appeared to circumvent statutory protections for journalistic sources in the UK.
According to written submissions the day after the warrants were issued, the PSNI unsuccessfully applied to access communications data from the two journalists’ phones.
The PSNI appeared to have dropped the application after being told that legal approval would be required and had apparently concluded that it was unlikely to be granted.
Directed surveillance
Jaffey said he was informed last week that the PSNI applied to conduct “directed but non-intrusive” surveillance on a suspected source that provided information used in the No stone unturned documentary.
The Directed Surveillance Application had been signed by the chief constable of the PSNI and was timed to take effect after the police raids on Birney and McCaffrey – when the PSNI should have already been aware of the judicial review.
“The nature of the surveillance has been redacted,” Jaffey told the court, but he said that the documents indicated an “intention to record audio”, adding: “We are therefore concerned this was intrusive surveillance.” He inferred that “interception” had taken place.
PSNI monitored McCaffrey’s phone data in 2013
The PSNI conceded that it unlawfully monitored McCaffrey’s phone data over the course of 19 days in 2013 in another operation to identify the source of leaked information.
McCaffrey’s publication, The Detail, had been publishing articles about the PSNI’s practice of granting former RUC officers generous severance packages and then immediately rehiring them as “self-employed” consultants.
McCaffrey was investigating allegations that a senior PSNI official received improper financial payments and phoned the PSNI press office for a comment. The PSNI asked McCaffrey to delay publication by three days while it conducted a covert operation against a PSNI employee, which McCaffrey agreed.
When McCaffrey called the press office again, the PSNI self-authorised an operation to obtain McCaffrey’s phone data. The journalist was given no chance to make arguments in the public interest before the PSNI obtained his private information. He only learned about the operation in 2023, 10 years after the intrusion, through the Investigatory Powers Tribunal.
The PSNI has agreed to delete the information collected.
Metropolitan Police involvement
Ben Jaffey KC said that he only learned last week that the Metropolitan Police Service (MPS) had conducted an earlier surveillance operation against McCaffrey in 2011. The MPS collected large quantities of phone data in an attempt to find the source of a leak for a story that McCaffrey had worked on.
The Met shared McCaffrey’s phone data with the PSNI in 2018, which re-interrogated it in an attempt to identify the source of a leaked document which featured in the film No stone unturned.
The MPS application for phone data required independent authorisation to protect the principle that journalists’ sources should be protected, Jaffey told the court, adding: “If the original application was unlawful, that re-interrogation was unlawful.”
Jaffey said the case was a “shambles and not ready for judicial determination” because of delays and last-minute disclosures of evidence by Durham Police and the PSNI.
He said that he was only told about the most important document in the case, the Directed Surveillance Application, at 7.30am on Wednesday morning, and was allowed to take notes, but not make copies.
Lord Justice Singh, who sat alongside Lady Carmichael and barrister Stephen Shaw KC, adjourned the hearing and told the parties in the case to agree rigorous directions so that it could resume as soon as possible.
Case ‘raises questions for press freedom’
Conservative MP David Davis, Labour MP Grahame Morris for Easington near Durham, former Police Ombudsman Baroness O’Loan, and Sinn Féin MP Chris Hazzard were among those to attend the hearing, along with representatives of the National Union of Journalists and human rights groups.
Human rights groups and NGOs, including Amnesty International, the UK Committee to Protect Journalists, Index on Censorship, the Open Rights Group and Reporters Without Borders UK, said in a statement after the case that covert surveillance of journalists damages the public’s right to information.
“The use of covert surveillance against journalists who speak the truth to power harms everyone’s right to freedom of expression and information. We are also concerned that it is not only journalists who are subjected to unlawful action by public authorities using covert intrusive techniques involving UK authorities.”
Jessica Ní Mhainín, head of policy and campaigns at Index on Censorship, said the case raised serious questions about whether sufficient safeguards are in place to protect journalists from unlawful surveillance.
“The protection of sources is essential to journalists’ ability to hold power to account. The police’s use of covert surveillance against Birney and McCaffrey should send chills down the spine of anyone who believes in press freedom and democracy in the UK,” she said.