Barry McCaffrey: How three UK police forces sought to carry out secret surveillance against journalists

Revelations that police secretly spied on The Detail editor Trevor Birney and journalist Barry McCaffrey for seven years have sent shockwaves through UK and Irish media. But what are the implications for the media now that they know any press inquiry to police could potentially lead to them being put under state surveillance? Writing exclusively for The Detail, Barry McCaffrey asks can press freedom truly exist if police treat journalists and sources as criminal suspects?

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Our court cases rarely begin on time.

It’s 11.20am, Wednesday 28 February 2024 in courtroom 70 at the imposing Royal Courts of Justice in London and today’s hearing is no different.

We’ve been patiently sitting for nearly an hour waiting for the case to begin. I practice counting the number of mouldy panels in the ceiling for the hundredth time.

Squeezed in behind us in the packed public gallery are former Brexit Minister David Davis, former Police Ombudsman Dame Nuala O’Loan, Sinn Féin MPs Chris Hazzard and Micky Brady, the leadership of the National Union of Journalists (NUJ), Amnesty International, the Committee on the Administration of Justice (CAJ) and film actor Tom Brittney.

We’ve also received support from Alliance MP Stephen Farry, SDLP MP Claire Hanna, the DUP, Ulster Unionist Party, and actors Adrian Dunbar and Siobhán McSweeney.

In another unidentified court room, somewhere else in this historic building, there is a secret intelligence hearing taking place to decide the fate of Trevor Birney and myself.

These secret hearings have been going on for four years.

Neither us nor our legal teams have ever been allowed to attend or to find out what has been discussed.

We have no idea what the Police Service of Northern Ireland (PSNI), Durham Constabulary - or whatever other intelligence agency may be in the room - is saying about us.

Our lawyers have asked for confirmation if either MI5 or GCHQ were involved in spying on us. They neither confirm nor deny a role in the undercover operation.

It’s akin to a legal boxing fight in which our lawyers have both hands tied behind their back and aren’t even allowed into the ring.

What we do know is that only hours before this morning’s hearing, the PSNI unexpectedly revealed more intelligence material on their spying operation against us.

The fact that all these documents were supposed to have been given to the Investigatory Powers Tribunal (IPT) court four years ago seems to have been lost on the PSNI.

A cynic might regard that eleventh hour disclosure as a deliberate attempt to block the first public court hearing into state spying operations against journalists.

My stomach churns when it dawns on me that our four years’ wait for this court hearing is about to be postponed yet again for another six months because of the PSNI’s mystery find.

However, the PSNI wasn’t alone in its last-minute spring clean for lost intelligence documents.

Only days earlier, their co-defendants in the case, Durham Constabulary, had suddenly also disclosed nearly 700 pages of restricted documents to the IPT.

It’s ironic that these two police forces had misplaced nearly 1,000 pages of top-secret documents.

They’d spent seven years spying on Trevor and myself for uncovering similar embarrassing police documents.

Our hearing in front of the Investigatory Powers Tribunal (IPT) finally gets underway at 11.30am.

We still don’t know what was discussed in the earlier secret hearing.

What is the IPT and why have two Northern Ireland journalists spent five years fighting to get here?

The IPT is the only court in Britain which can hear cases of wrongdoing by the UK’s intelligence services.

This is the court which can ultimately hold intelligence agencies, including not only the PSNI, Durham Constabulary - but also MI5 and GCHQ - to account.

Many of the cases which the IPT investigates are held in secret and the public rarely, if ever, gets to hear about them.

It is exceptionally rare for the court to insist that a hearing should be held in public.

Revelations that the legal safeguards protecting journalists and press freedom have been deliberately and repeatedly breached by three different UK police forces is not lost on anyone in the courtroom.

The Times, Guardian, RTÉ, BBC and Press Association have filled the press benches.

Several lawyers representing the UK’s leading media organisations are present.

What exactly did police do wrong?

This is a hugely complicated, intricate and at times highly confusing case involving tens of thousands of pages of top-secret disclosure.

It is investigating how three police forces (PSNI, Durham and Scotland Yard) sought to carry out secret surveillance against journalists, obtaining telephone records and emails – all in an effort to identify journalistic sources.

These attacks on journalists’ legal right to protect sources didn’t just happen once.

They were undertaken by three different police forces targeting respected journalists working on three different public interest stories, all taking place over a seven-year period.

There is a rare moment of levity during this morning’s hearing when my barrister, Ben Jaffey KC, admits to the court that he has lost count on the number of times police had spied on his client to try to identify sources.

Are police not allowed to investigate journalists?

Yes, police forces across the UK are legally entitled to investigate media companies and to seek to obtain journalists’ material if they believe a criminal offence has been committed.

However, there are long established legal safeguards in place which allow police forces seeking access to journalistic material to apply for a Production Order in court.

If a judge approves a Production Order, journalists are compelled to surrender source material.

The Production Order system allows journalists the opportunity to argue against the police application.

A judge then decides whether any journalistic material should be handed over.

Crucially, none of the three police forces involved in any of these three cases ever sought to follow the Production Order system.

Instead, they chose to circumvent the judicial route, using an internal police procedure, Communications Data Application (RIPA) 2000, to obtain journalists’ phone records, emails, and Whats App messages - all of this being done in an attempt to unmask whistleblowers and journalistic sources.

The problem for police is that the law prevents them from trying to identify journalists’ sources unless they can prove there is some overriding reason to justify the harm caused to legitimate journalism.

Why do journalists protect sources?

Journalists often rely on information shared in confidence by sources/whistleblowers to inform stories and aid accurate reporting.

Sources may want to remain anonymous, due to fear of threats from those their information references or exposes.

While whistleblowers and sources are regarded in any democratic society as a vital and legitimate tool in holding public authorities open to proper scrutiny and accountability, the intelligence agencies apparently view whistleblowers and sources as traitors.

What happened in our case?

Spying Operation 1 – (MET): In 2011 I received an anonymous advance copy of a Criminal Justice Inspectorate (CJI) report into the Northern Ireland Police Ombudsman’s Office (PONI). The report, which was due be published weeks later, highlighted a serious breakdown in working relationships within the PONI office and complaints by some staff that reports were rewritten to remove criticisms of police failures.

Following the publication of my story, the then Police Ombudsman, Al Hutchinson, made a complaint to the PSNI, arguing that the CJI report must have been leaked from his office.

The PSNI could not investigate the Police Ombudsman’s office, because PONI’s role is to investigate allegations of PSNI wrongdoing.

So, the Metropolitan Police Service (Scotland Yard) was asked to investigate the source of the leak.

I received a letter from the Met investigation asking me to reveal the source of the leak.

The Detail’s lawyers responded stating that we abided by the NUJ code of ethics, which states that journalists do not reveal the identity of sources.

We believed the matter had been closed, as the Met made no other effort to contact us.

Thirteen years later, and only days before the IPT public hearing was due to take place, we learned that the MET investigation had not ended but instead had secretly tried to identify my journalistic sources by trawling through phone records and emails.

It remains unclear why huge police resources and manpower was used to try to identify the source of a report, which was made public weeks later anyway.

Spying Operation 2 (PSNI): In September 2013 I became aware that the PSNI was investigating allegations that a senior civilian within its ranks had received illegal payments from a major public company, which was employed by the PSNI.

Like every other journalist working on a story involving police, I contacted the PSNI press office to seek confirmation of the investigation into alleged serious fraud. Unusually, I was called back by a senior PSNI press officer and asked not to publish the story for a three-day period, as the investigation was ongoing.

Reluctantly, I held onto the story for the three days expecting to hear back from the PSNI press officer, as had been agreed.

Days later, having heard nothing, I contacted the PSNI but was told that the press officer would not be available to speak to me.

Having upheld my part of the agreement and with a clear public interest issue of alleged illegal payments to a PSNI employee at stake, The Detail published the story.

It wasn’t until March 2023, 10 years later, that we learned what the PSNI did next.

On the morning after publishing the story, the PSNI used two Communications Data Applications (2000) to obtain my internal and external telephone records, again to try and identify the source of the story.

The internal application and the subsequent authorisation repeatedly make clear that the sole aim of the spying operation was to identify my source.

The documents also repeatedly refer to me as a criminal and a suspect.

Again, there was no effort by the PSNI to seek a Production Order from a judge.

Spying Operation 3: Operation Yurta (PSNI/Durham): On August 31, 2018, Trevor Birney and I were arrested in an operation led by Durham Constabulary and assisted by the PSNI. We were questioned for 13 hours into the source of a document used in the film No Stone Unturned.

We were released on police bail that evening and ordered to return for further questioning three months later.

We only discovered, days before the February 2024 IPT public hearing, that our arrest had actually been a deliberate ‘diversion’ tactic and was part of a sting operation to try to re-arrest us later alongside an official from the Police Ombudsman’s Office, who, they had decided, was the source of the leaked report.

Despite repeated police denials in 2024 that there had been any surveillance operation against us in 2018, it was only on the morning of the IPT hearing that the PSNI finally admitted the existence of the planned sting.

The undercover surveillance of the PONI official was abandoned after two weeks due to the fact that we had not made any attempt to contact him.

Both Trevor and I have known and worked with this PONI official for many years. The relationship always has been proper and professional. Why this public civil servant would be deliberately targeted by police remains a mystery.

What happens now?

We waited four years for an IPT hearing to discover the full extent of the unlawful police surveillance used against us. It took just 40 minutes for the case to be adjourned for another six months for our legal team to be able to properly understand the true relevance of the near 1,000 pages of new evidence, with more evidence likely to come.

It is deeply frustrating that police are still failing to provide full disclosure to the IPT.

When we were arrested the PSNI claimed that our actions had caused serious damage to public confidence in policing.

Six years after our unlawful arrests the truth is that it is the PSNI who continue to damage public confidence in policing.

The PSNI refuses to admit that it spies on journalists to identify the sources of stories which attempt to shine a light on police wrongdoing.

What public servant or whistle-blower will ever consider passing evidence of wrongdoing to a journalist knowing that police will spy on the journalist to identify the source and prosecute them?

What should be done now?

We urge anyone who believes that they have been the victim of unlawful police surveillance to make a complaint to the IPT.

However, the fact that any complaint to the IPT will be rejected unless it has been made within 12 months of the suspected intrusive surveillance having taken place, makes it hard for a target’s case to be accepted.

We only found out about the 2011 and 2013 surveillance operations against us more than a decade later.

It was only because our 2019 complaint was made within a year of the 2018 spying attack on us that those cases were investigated by the IPT.

PSNI Chief Constable Jon Boutcher has the power to end this scandal by telling journalists and any other lawyer, trade unionist or NGO if they have been the target of similar unlawful police surveillance.

By taking this move, Mr Boutcher can begin to repair the huge damage which his predecessors have caused to public confidence in policing.

Finally, we believe that the Policing Board must establish a public inquiry to properly investigate what PSNI spying operations have targeted journalists in Northern Ireland and any other individual engaged in their professional role.

The PSNI and intelligence agencies operating in Northern Ireland have shown that they are totally incapable of investigating themselves when it comes to targeting journalists and their sources.

The Policing Board is the only authority with the independent power to finally bring this sordid spying scandal to an end and holding those responsible to account.

Neither Trevor Birney nor I were the ultimate target of these spying operations. The ultimate aim was to identify and intimidate all journalists and their sources. That is not only an attack on freedom of the press, it is an attack on democracy.