A secretive tribunal is looking into allegations that UK authorities spied on investigative journalists in Northern Ireland to identify their sources.
The investigatory powers tribunal (IPT) is examining a complaint by two journalists who asked the body to find out whether police in Northern Ireland and Durham, as well as MI5 and GCHQ, used intrusive surveillance powers against them.
The journalists, Trevor Birney and Barry McCaffrey, were controversially arrested in 2018 in connection to their work investigating a notorious massacre during the Troubles. A judge subsequently rebuked the police and ruled the arrests were unlawful.
Earlier this year, almost four years after filing a complaint with the IPT, Birney and McCaffrey learned that, without their knowledge, the tribunal has been conducting a secret investigation in which it has examined a separate incident in 2013.
According to papers seen by the Guardian, the IPT ruled this month it would extend a one-year time limit to investigate and consider the lawfulness of a 2013 authorisation the Police Service of Northern Ireland (PSNI) used to collect communications data.
The journalists understand the PSNI obtained the authorisation to access McCaffrey’s telephone records after he approached the PSNI’s press office in 2013 with questions for a story he was working on about alleged corruption in the police force.
McCaffrey, a senior reporter for investigative website the Detail, described this as a “shocking discovery” to make 10 years later. “I had no idea until very recently that my phone had been compromised in this way,” he said.
“Once again, we find the PSNI treating journalists as the enemy. There appears to be a very worrying culture within the PSNI towards journalists in Northern Ireland, one in which we are seen as criminals to be pursued,” McCaffrey added.
Birney and McCaffrey said their case also illustrated the secretive manner in which the IPT operates.
The judicial body, which investigates complaints against the intelligence services and public authorities that use investigatory powers, adopts an inquisitorial process, typically behind closed doors, and has unique powers to obtain secret evidence.
“We feel we’ve been given the tip of the iceberg,” Birney said. “We appreciate the work of the IPT in uncovering what they’ve uncovered. But we’re particularly frustrated as we’re completely blinkered in this process. We only get to see a glimpse behind the curtain of what the court is doing.”
The IPT is expected to hold a hearing this year into the lawfulness of the 2013 collection of communications data. However, it is unclear whether the IPT has yet formed any conclusions about allegations included in the complaint relating to the 2018 police investigation into Birney and McCaffrey.
The journalists filed the complaint after a senior judge in Belfast ruled the 2018 search warrants and arrests were unlawful. They told the IPT it was “likely the search orders executed against [them] were not the only attempt made to identify their confidential sources.”
The arrests of Birney and McCaffrey, both experienced investigative reporters, sparked outrage and raised concerns about media freedom in Northern Ireland.
Police raided their homes and seized large amounts of journalistic material after their work on No Stone Unturned, a documentary about apparent collusion between the police and suspected murderers in the 1994 Loughinisland massacre, in which six Catholic men were killed by loyalist paramilitaries.
Commenting on the IPT case, Séamus Dooley, the assistant general secretary of the National Union of Journalists, said: “We stand with Barry and Trevor and support their stance that a secret court hearing is entirely inappropriate. The NUJ has always opposed secret investigations, justified on spurious security grounds.”
A spokesperson for PSNI declined to comment, citing the continuing legal proceedings.
