Mat Hayward -

Tribunal investigates complaint that journalists’ phones were unlawfully monitored

The Investigatory Powers Tribunal has agreed to investigate complaints by Northern Ireland investigative journalists Trevor Birney and Barry McCaffrey that they were unlawfully placed under surveillance

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.

Police leave no stone unturned in investigation into journalists’ sources

June 1994: Six men are murdered by the Ulster Volunteer Force (UVF) at Loughinisland, Northern Ireland.

February 1995: An SDLP councillor receives a letter identifying the people allegedly responsible for the murders.

3 June 2008: The date of a Police Ombudsman report into police conduct during the murder investigation.

14 August 2011: Journalist Barry McCaffrey writes an article disclosing the contents of a draft report by the Criminal Justice Inspectorate raising concerns about the lack of independence between the Office of the Police Ombudsman of Northern Ireland and the Police Service of Northern Ireland (PSNI).

January 2012: The families of the six murdered men approach journalist Trevor Birney about making a documentary about their experience.

6 June 2012: The Metropolitan Police Service (MPS) writes to McCaffrey asking who provided him with a copy of the draft report from the Criminal Justice Inspectorate and how it came into his possession.

15 June 2012: McCaffrey’s solicitors reply to the MPS that he and his employer were bound by journalistic privilege and abided by the principles of the NUJ code of conduct and could provide no information on the source of the documents.

Spring 2012: Birney approaches Alex Gibney, a film producer based in the US, to work on the documentary.

November 2012: Birney sets up Fine Point Films, a documentary film company.

2013: McCaffrey wins an award for an investigation into the use of solitary confinement in Northern Ireland’s prisons, and is named digital journalist of the year.

2015: The Police Ombudsman of Northern Ireland, Michael Maguire, gives an interview to Gibney on condition that the interview would not be broadcast until after he delivered his report into the police investigation of the Loughinisland murders. The production team advises the ombudsman that they would name three suspects in the documentary and intended to name a fourth person who was a police informant.

June 2016: Maguire publishes his report into the conduct of the police investigating the Loughinisland murders.

6 April 2017: Birney and colleagues meet with assistant chief constable Stephen Martin of the PSNI and advise that the documentary intends to name four suspects, including a police informer who was identified by the RUC after the attack. After discussion, the production team ultimately decides not to name a police informer.

30 September 2017: The film, No stone unturned, is screened at the New York Film Festival.

3 October 2017: The Police Ombudsman views a private screening of the film at the ombudsman’s office. During the screening, it becomes apparent that the production team has acquired material from sensitive documents relating to the ombudsman’s investigation of the Loughinisland complaints.

4 October 2017: Paul Holmes of the Police Ombudsman’s Office meets with senior officers at the PSNI and alerts them to the material disclosed in the documentary. Durham Police begins an investigation, Operation Yurta, into whether the production team had obtained the material through theft or unauthorised disclosure. It is led by Peter Darren Ellis, a recently retired detective superintendent.

7 October 2017: No stone unturned receives its UK premiere at the London Film Festival.

26 October 2017: Durham Police and PSNI agree terms of reference for the investigation.

22 March 2018: Peter Darren Ellis, who led the investigation by Durham Police, writes in the policy book describing No stone unturned as “sensational documentary-making which often leads the uneducated viewer to reach inaccurate conclusions”.

8 August 2018: Durham Police presents papers to the judge requesting a search warrant including all broadcast and unbroadcast footage from No stone unturned. The application includes all discussions, interviews and communications, and computer equipment and mobile phones containing evidence about the leaked Police Ombudsman documents.

10 August 2018: Judge Rafferty QC issues warrants to detective sergeant Henderson of the serious crime branch of the PSNI, authorising searches of Birney and McCaffrey’s homes and workplaces for journalistic material.

31 August 2018: Police raid the homes of McCaffrey and Birney, and the offices of Fine Point Films.

31 August 2018: Durham Constabulary issues a press release reporting that two men were arrested that morning as part of a Durham Constabulary-led investigation into the suspected theft of confidential documents.

10 July 2020: The High Court in Northern Ireland quashes the search warrants issued to search the homes and workplaces of Birney and McCaffrey. The judges state: “We see no overriding requirement in the public interest which could have justified interference with the protection of journalistic sources in this case.” The application before a judge for the search warrants fell “woefully short of the standards required to ensure it was fair”.

16 July 2020: PSNI’s Byrne apologises for the unlawful arrests of Birney and McCaffrey.

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