The Police Service of Northern Ireland and the Metropolitan police unlawfully spied on two investigative journalists, a tribunal has found in a landmark judgment.
The investigatory powers tribunal ruled that the PSNI must pay £4,000 each in damages to Trevor Birney and Barry McCaffrey, who were arrested in 2018 after they produced No Stone Unturned, an award-winning documentary about a notorious massacre during the Troubles.
It found that the Met unlawfully put McCaffrey under surveillance in 2012, while the PSNI was found to have done so in 2013.
The tribunal also quashed a 2018 direct surveillance authorisation targeting the Belfast-based journalists, on the same day they were arrested, and their suspected source – the first time it is believed to have taken such action.
The case was the first in which the tribunal has ordered a police force to pay damages to journalists for unlawful intrusion.
No Stone Unturned documented apparent collusion between the police and suspected murderers in the 1994 Loughinisland massacre, in which six Catholic men were killed by loyalist paramilitaries.
The subsequent arrest of the journalists, over two leaked documents that appeared in the film, was ruled unlawful by Northern Ireland’s top judge in 2019.
The same year, Birney and McCaffrey issued proceedings at the tribunal based on their suspicions that the arrest warrants were “not the only attempt made to identify their confidential sources”.
On Tuesday, the tribunal, which conducts most of its proceedings behind closed doors, and is the only British court with the power to rule on covert surveillance operations by the intelligence agencies and police, found in their favour.
In its judgment, the IPT, chaired by Lord Justice Singh, sitting at the royal courts of justice in London, said: “We will quash the DSA (direct service authorisation). We have determined that a declaration of its unlawfulness would not be sufficient to afford the claimants just satisfaction in respect of its incompatibility with the rights protected by article 10 (of the European convention of human rights, which protects freedom of expression).”
It said that the chief constable of PSNI at the time, Sir George Hamilton, had acted unlawfully as he “did not consider whether there was an overriding public interest justifying an interference with the integrity of a journalistic source”.
The unlawful surveillance began six years prior to the journalists’ arrests and five years before No Stone Unturned was released, when the Met made applications for communications data relating to eight telephone numbers, one of which was McCaffrey’s.
The following year McCaffrey was put under surveillance. He had called the PSNI press office after receiving a tipoff for a story about alleged bribery payments made to a senior official in the force, by an employment agency supplying civilian personnel to the police. On 26 September 2013, a PSNI detective constable lodged an application for covert surveillance for the purpose of “identify[ing] a PSNI employee who has passed police information to a journalist”. It was granted and police obtained access to 10 pages of McCaffrey’s outgoing call data from 7 September 2013 to 26 September 2013.
Reacting to the judgment, Birney said: “We’re delighted after six years that we’ve got this victory, but this isn’t so much for us; it’s about journalism throughout the UK. It’s not just about Belfast or the north of Ireland, it is about police forces across Britain and about sources today who can actually look to this judgment and feel that they’ve got some protection if they have to act in a public-spirited way and speak with a journalist or act as a whistleblower, or provide documentation on public interest and matters of national security.”
McCaffrey said: “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.”
Both men called for a public inquiry.
The current chief constable of PSNI, Jon Boutcher, said he accepted the tribunal’s judgment. He described the 2018 DSA as “one of a number of difficult decisions on a complex and fast-moving day for policing in Northern Ireland involving balancing competing interests at pace”. He said significant changes had been made since.
