Mat Hayward -

Secret court hears claims of police surveillance against journalists

Journalists Trevor Birney and Barry McCaffrey argue that the use of covert powers by the police to identify their confidential sources represents an attack on press freedom

Britain’s most secret court is to hear claims that UK authorities unlawfully targeted two journalists in a “covert surveillance” operation after they exposed the failure of police in Northern Ireland to investigate paramilitary killings.

Trevor Birney and Barry McCaffrey are bringing the case against the Police Service of Northern Ireland (PSNI), Durham Constabulary, GCHQ and MI5. They argue that they were unlawfully placed under surveillance after exposing police failures to investigate the paramilitary murder of six innocent people.

The case, which will be heard this week by the Investigatory Powers Tribunal, will test legal safeguards for journalists and their confidential sources, and the accountability of law enforcement and intelligence agencies to independent oversight.

It also raises wider questions about the extent that police and intelligence agencies continue to monitor journalists’ phone and email communications despite the introduction of greater legal protections for journalists and their sources since 2016.

Trevor Birney told Computer Weekly he was concerned that the case represents the “tip of the iceberg” for journalists across the county. “This is not just a few rotten apples in Northern Ireland,” he said. “We want to know whether it has gone on in every police force across the UK.”

Officers from the PSNI and Durham Police arrested Birney and McCaffery and searched their homes and offices, seizing large quantities of journalistic material in 2018 following their work on a documentary film, No stone unturned, which exposed police failure to investigate the murders of six innocent people killed in a gun-attack in Loughinisland, County Down.

The journalists were exonerated by the former Lord Chief Justice of Northern Ireland Declan Morgan in a judicial review in 2019, when he ruled that Durham Constabulary and the PSNI unlawfully used search warrants in an attempt to identify Birney and McCaffrey’s sources.

Barry McCaffrey (left) and Trevor Birney (right)

Questions over police covert surveillance  

The journalists hope the IPT investigation will shed light on any unlawful action used by public authorities using covert intrusive techniques.

“What we now understand is that the police had a covert surveillance operation on Barry and me,” said Birney. “But does that mean our homes were compromised by police? Does it mean they were following us in our cars? Does it mean they have bugged my phone? The police must come clean.”

Birney and McCaffrey filed a complaint to the Investigatory Powers Tribunal in 2019, arguing it was likely police and other government agencies had placed them under surveillance in an attempt to identify their sources.  

They have asked the tribunal to investigate whether UK agencies obtained their telephone and email 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. A Northern Ireland Policing Board report revealed that McCaffery had his phone communications monitored by the PSNI in 2013.

Police raid had chilling effect on journalism  

Police from Durham and the PSNI raided the homes of both journalists and the offices of Birney’s film production company, Fine Point Films, in August 2018, seizing computer equipment, mobile phones, memory sticks and notebooks. 

Police also copied Fine Point Films’ server, which held 10TB of data, including highly confidential journalistic information and information that could identify confidential sources.

It was designed to send a message to journalists in Northern Ireland not to investigate affairs of the state or historical police failures, said Birney.

Read more about Trevor Birney and Barry McCaffrey and police surveillance

After a two-year legal battle, the High Court in Northern Ireland found in July 2020 that Durham Police, which led the investigation into the journalists, had obtained the search warrants unlawfully.

The police had withheld key facts from the judge who granted the warrants, and there was no justification for the police to “interfere with the protection of journalists’ sources”.

The PSNI agreed to pay damages of £875,000 to McCaffrey, Birney and Fine Point Films in 2020.

The chief constable of the PSNI, Simon Byrne, gave an unreserved apology for the upset and distress caused to Birney and McCaffrey by the execution of the search warrants.

“I fully accept the ruling of the Lord Chief Justice that the search warrants were unlawful,” he said.

Questions need answering over surveillance of journalists

McCaffrey said questions need to be answered about the use of surveillance powers under the Investigatory Powers Act 2016 to monitor journalists, NGOs and lawyers.

“We need to know how many times this legislation was used or abused and what professions it was used against,” he said. “It wouldn’t just have been journalists. It will have been NGOs, trade unionists and lawyers.”

Birney said the PSNI treated the journalists as “criminal suspects” rather than journalists working with sources to expose the truth.

“If we were treated as criminal suspects in 2013 and again in 2018, the chances are there are journalists out there today who are being treated the same way,” he said.

Read more about surveillance of journalists in the UK

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