LAST UPDATE | 17 Dec 2024

A TRIBUNAL IN London has found that the PSNI, as well as the Met Police, unlawfully surveilled two journalists in Northern Ireland in order to get their sources for a story they were working on.

The IPT has ruled that the Met police unlawfully put Barry McCaffrey under surveillance in 2012. When the Met police subsequently passed this information on to the PSNI and Durham Police this was also unlawful.

Separately, the tribunal has ruled that surveillance by the PSNI targeting Barry McCaffrey in 2013 was unlawful. The tribunal has ruled that the police breached his Article 8 and Article 10 rights under the European Convention (ECHR).

The PSNI have admitted unlawfully accessing Barry McCaffrey’s mobile phone records for three weeks in September 2013. The tribunal heard that Barry McCaffrey was put under covert electronic surveillance after he made a phone call to PSNI press office.

This call related to a ‘tip off’ for a story about alleged bribery payments made to a senior PSNI official by an employment agency supplying civilian personnel to the police.

In 2018, Belfast-based Barry McCaffrey and Trevor Birney were controversially arrested as part of a police investigation into the alleged leaking of a confidential document that appeared in a documentary they made on the 1994 UVF massacre in Loughinisland, Co Down.

The Police Service of Northern Ireland (PSNI), citing a conflict of interest, asked Durham Police to lead the investigation into the inclusion of the Police Ombudsman for Northern Ireland document in the No Stone Unturned film on the pub shooting that claimed the lives of six men.

The PSNI later unreservedly apologised for how the men had been treated and agreed to pay £875,000 in damages to the journalists and the film company behind the documentary.

The settlement came after a court ruled that the warrants used by police to search the journalists’ homes and Fine Point Films had been “inappropriate”.

In a press conference in London following the Tribunal’s judgment, Trevor Birney called for a public inquiry.

“This landmark ruling underscores the crucial importance of protecting press freedom and confidential journalistic sources,” he said, adding that he hoped the judgement “will protect and embolden other journalists pursuing stories that are in the public interest.

“The judgment serves as a warning that unlawful state surveillance targeting the media cannot and should not be justified by broad and vague police claims.

“The judgment raises serious concerns about police abuse of power and the law, and our case has exposed a lack of effective legal safeguards governing secret police operations.”

Mr Birney added: “Only a public inquiry can properly investigate the full extent of unlawful and systematic police spying operations targeting journalists, lawyers and human rights defenders in the north.”

Film maker Barry McCaffrey told reporters in London: “For this court to have found that a Chief Constable has acted unlawfully, we think is a major embarrassment, and it’s something that needs there to be a public inquiry.

“No other alternative – we need a public inquiry.”

In 2019, Mr Birney and Mr McCaffrey lodged a complaint with the IPT asking it to establish whether there had been any unlawful surveillance of them.

In court proceedings earlier this year, the tribunal heard that a detective requested the DSA from Mr Hamilton in order to monitor whether the two reporters would reach out to their source in the week after their initial release from custody.

Mr Hamilton gave the green light for the covert surveillance of an individual whom officers suspected of being the source of the leaked document from the Police Ombudsman’s office.

In its judgment, the IPT said: “We will quash the DSA. 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).”

The National Union of Journalists (NUJ) said in a statement that it welcomed the judgment of the Tribunal, but said that “many questions remain unanswered” and said that the IPT ruling “cannot be the end of this matter” as a result. 

Since its formation in 2001 the IPT has conducted 4,073 investigations into complaints made against the intelligence agencies and police surveillance units, but has only upheld 1% (47) of such complaints – with the NUJ saying that this is “telling It is telling and of consequence that this case marks a significant victory for journalists and journalism.”

PSNI response

In a statement issued after the judgement, Chief Constable of the Police Service of Northern Ireland Jon Boutcher said that he “accepted” the Tribunal’s judgement that “due consideration was not given to whether there was an overriding public interest in interfering with journalistic sources before authorising surveillance.

“Importantly, although it was not directed toward the journalists Mr McCaffrey and Mr Birney, it did impact them in 2018,” he said.

He said this was 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.

“Separately the Tribunal found that although officers complied with UK law and procedure at the time, a 2013 authorisation for communications data was a breach of our human rights obligations. I am pleased that the Tribunal found officers acted in good faith.”

He said that significant changes have already been made within the PSNI since the incidents occurred. 

“This is a detailed judgment and I will take time to consider and reflect on it and along with the findings of the McCullough Review in due course, to consider what further steps we can take.

“I am committed to ensuring that the Police Service of Northern Ireland use the powers available to us in a way that is lawful, proportionate and accountable.”

With reporting by Press Association