The Police Service of Northern Ireland (PSNI) and the Metropolitan police unlawfully spied on two investigative journalists, a UK tribunal has found.
The Investigatory Powers Tribunal (IPT), chaired by Lord Justice Singh, ruled that the PSNI must pay £4,000 (€4,840) 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.
The independent tribunal also quashed the PSNI’s direct surveillance authorisation targeting the journalists and their suspected source – the first time it is believed to have taken such action. It ruled that the Met unlawfully put McCaffrey under surveillance in 2012.
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.
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The subsequent arrest of the journalists was ruled unlawful by Northern Ireland’s top judge in 2019.
The tribunal quashed the decision made by former PSNI chief constable George Hamilton to approve the directed surveillance authorisation in an investigation into the leaking of a confidential document that appeared in a documentary on the Troubles massacre.
The tribunal had been examining allegations that the award-winning journalists were subject to unlawful covert surveillance by UK authorities.
The tribunal also looked at separate allegations that the PSNI and the Metropolitan Police in London unlawfully accessed Mr McCaffrey’s phone data in unrelated operations, in 2013 and 2012 respectively.
The two forces had already conceded that those 2012 and 2013 operations were unlawful.
The tribunal also quashed the two authorisations for those two phone data operations, but did not award any damages to Mr McCaffrey in those cases.
In 2018, Belfast-based Mr McCaffrey and Mr 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 loyalist paramilitary massacre in Loughinisland, Co Down.
The 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 UVF pub shooting that killed six men.
The PSNI later unreservedly apologised for the way the journalists 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 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 direct surveillance authorisation from Mr Hamilton 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 [direct surveillance 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 on Human Rights).”
Reacting to the judgment, Mr Birney and Mr McCaffrey both called for a public inquiry into police surveillance of journalists.
In a press conference in London, Mr Birney said: “This landmark ruling underscores the crucial importance of protecting press freedom and confidential journalistic sources.
“We hope that the judgment today 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,” he said.
“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.”
The PSNI chief constable, Jon Boutcher, said in a statement that he accepted “due consideration was not given to whether there was an overriding public interest in interfering with journalistic sources before authorising surveillance”.
“This was one of a number of difficult decisions on a complex and fast moving day,” he added.
The IPT is an independent judicial body that provides “the right of redress to anyone who believes they have been the victim of unlawful action by a public authority using covert investigative techniques”.
It also considers “complaints about conduct by, or on behalf of, the UK intelligence services”, according to its website. – Agencies