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Barry McCaffrey (left) and Trevor Birney outside the Investigatory Powers Tribunal in London earlier this year. Photo courtesy of Sarah Kavanagh
After a six-year probe, a tribunal has ruled against the Police Service of Northern Ireland (PSNI) and the Metropolitan Police over a spying operation against two journalists – The Detail editor Trevor Birney and former Detail journalist Barry McCaffrey. Writing exclusively for The Detail, Mr McCaffrey reflects on whether the long legal battle was worth it.
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It’s been more than six years since Trevor and myself lodged a complaint with the Investigatory Powers Tribunal (IPT) to try and find out what surveillance the PSNI had put us under in August 2018.
Why the IPT? Well, it is the only British court allowed to investigate the activities of MI5, GCHQ and police intelligence agencies.
From the outset, our lawyers warned us that the IPT was ultra conservative, and it was highly unlikely that it would even agree to investigate our complaint.
Since its inception in 2001, the IPT has looked at 4,073 complaints against the various intelligence agencies. It has only found in favour of complainants in 1% (47) of those cases.
So, 99% of the time the intelligence agencies are the winners. What hope did we have?
What was our complaint about?
Trevor and I made a complaint to the IPT after we were wrongly arrested in 2018 by officers from Durham Constabulary and the PSNI over our documentary, No Stone Unturned, into the Ulster Volunteer Force (UVF) killing of six men in Loughinisland, Co Down, in June 1994.
The PSNI later apologised for our arrests and paid substantial damages.
We went to the IPT because we wanted to know the level of surveillance we had been put under in 2018. We hadn’t thought there might have been other occasions when the PSNI or any other organ of the state might have spied on us.
What we found through disclosure in our case was that the PSNI, and the other British police forces which it drafted in to carry out ‘independent’ investigations, had spied on myself on at least four occasions since 2009.
The IPT has now ruled that three of these spying operations – in 2012, 2013 and 2018 – were unlawful. It failed to make any judgment on an incident in 2009 when the PSNI has admitted that it obtained my phone records.
That incident occurred when the PSNI informed me of intelligence that I was to be shot dead by a loyalist paramilitary organisation.
We subsequently learned through disclosure in our IPT case that that threat had been made in an anonymous call from a public phone box to the PSNI.
Why the PSNI then decided to trawl through my personal phone records has never been explained.
The Metropolitan Police Service (MPS) has now admitted that it 2012, acting on behalf of the PSNI, it unlawfully obtained telephone data belonging to myself and BBC reporter Vincent Kearney.
This illegally obtained data was subsequently shared with the PSNI and Durham Constabulary in 2018, violating human rights legislation protecting journalists and their sources.
Disclosure revealed during the IPT hearings detailed how the Met, acting on behalf of the PSNI, had obtained more than 4,000 texts and phone communications belonging to Trevor, myself and more than a dozen journalists working for BBC NI’s Spotlight programme.
The PSNI also admitted a third incident of unlawfully accessing my mobile phone records for three weeks in September 2013.
The court heard that I was put under police surveillance after I made a phone call to PSNI press office inquiring about alleged bribery payments made to a senior PSNI official by an employment agency supplying civilian personnel to the force.
Discovery documents revealed during the IPT hearings detailed how a PSNI application for my phone records readily admitted that my sensitive journalistic contacts would be exposed to police scrutiny.
The documents revealed that I was repeatedly described in official police documents as a criminal “suspect” who associated with “other criminal suspects”.
I had no criminal record and had never been arrested.
The fourth and arguably most serious act of unlawful police spying came in 2018.
On 31 August of that year Trevor and myself were arrested in early morning raids by officers from the PSNI and Durham.
A police press release later identified that we were being questioned on suspicion of breaching the Official Secrets Act.
We were released on bail later that evening, unaware that police were mounting a secret surveillance operation in a bid to rearrest us.
Police had known that legal protections of journalists and their sources meant they would never be granted a Directed Surveillance Authority (DSA) to put Trevor and myself under physical surveillance after our release.
So instead, they chose to apply for a DSA against an official from the Police Ombudsman’s office, who they suspected was our source.
In an operation worthy of Inspector Clouseau, police had hoped that we would meet this official and then they could jump out from behind some bushes, arrest us and cart us off to jail.
We will never know what bushes police were hiding behind but needless to say there were no arrests.
When this particular spying operation was finally exposed in court, the PSNI’s lawyers claimed that the ombudsman employee was the only intended target and that police had not been trying to spy on Trevor or myself to identify our journalistic sources.
The IPT has ruled that this was nonsense and that former PSNI Chief Constable Sir George Hamilton acted unlawfully when he authorised the operation.
Our lawyers believe this is the first time in British legal history that the IPT has found a police force guilty of unlawfully trying to identify journalistic sources.
So, was it worth it?
When we started this six year battle we only thought that Trevor and myself were the only journalists who had been under state surveillance.
PSNI Chief Constable Jon Boutcher has now been forced to publicly admit that his force had tried to access to the communications data of 320 journalists and 500 lawyers over a 14-year period.
We now know that the PSNI was targeting journalists on an industrial scale to identify our sources.
If this had happened in London or Dublin the calls for a public inquiry into the scandal would be overwhelming.
Why not here? Why has the Policing Board, which is the public authority charged with holding the PSNI to account, not already announced a public inquiry?
Either we are a democratic society which protects journalists and their sources, or we are a banana republic.
This is not about bashing the PSNI or scoring political points. It is about fighting not only for press freedom but also for democratic and accountable policing.
Only when we get that public inquiry and accountable policing will Trevor and myself be able to say that this has all been worth it.