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Journalists Barry McCaffrey and Trevor Birney. Photo courtesy Sarah Kavanagh
The Detail editor Trevor Birney and former Detail journalist Barry McCaffrey have made British legal history today after a tribunal ruled against two police forces which spied on them.
The Investigatory Powers Tribunal (IPT), which looks at complaints against the UK’s intelligence services, investigated if three police forces – the Police Service of Northern Ireland (PSNI), Durham Constabulary and the Metropolitan Police (the Met) – subjected the pair to unlawful surveillance in an attempt to uncover their sources.
Following a lengthy legal battle, the tribunal has now ruled against the PSNI and the Met.
The tribunal:
- found that three spying operations, two involving Mr McCaffrey in 2012 and 2013 and one involving both journalists in 2018, were unlawful
- quashed a 2018 PSNI authorisation which put the journalists and their suspected source under direct surveillance
- highlighted that police spied on other media, including BBC journalists
- ordered the PSNI to pay damages to Mr Birney and Mr McCaffrey -the first time the IPT has told a force to pay damages to journalists for unlawful intrusion.
Today’s ruling came following a six-year fight by the journalists to uncover the extent of police surveillance against them.
The pair were wrongly arrested in August 2018 by officers from Durham Constabulary and the PSNI over their 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 the pair’s arrests and paid substantial damages.
Direct Surveillance Authorisation
In a written judgment, published today, the tribunal ruled that former PSNI Chief Constable Sir George Hamilton unlawfully approved an undercover surveillance operation in 2018.
Sir George signed a Directed Surveillance Authorisation (DSA) after being told that an official in the Police Ombudsman’s office was suspected of supplying secret intelligence documents, which featured in No Stone Unturned, to the journalists.
Mr Birney and Mr McCaffrey were arrested in early morning raids on August 31 2018.
By the time the pair were released on bail that evening, police had already begun tracking the Police Ombudsman official in case they met the journalists. However, no further arrests were made.
The tribunal rejected police claims that the operation was only designed to target the Police Ombudsman official and not the journalists.
The tribunal found Sir George’s decision to authorise the operation was “unlawful at common law” and that it violated the European Convention on Human Rights (ECHR) and the Human Rights Act 1998.
The tribunal also quashed the DSA – believed to be the first time it has done so.
Telephone data
The tribunal revealed how, in 2012, the Met, acting on behalf of the PSNI, obtained telephone data belonging to Mr McCaffrey and the then BBC journalist Vincent Kearney.
This data was shared with the PSNI and Durham Constabulary when Trevor Birney and Barry McCaffrey were arrested in 2018.
Disclosures given to the tribunal revealed that the Metropolitan Police, again acting on behalf of the PSNI, obtained more than 4,000 text messages and phone communications belonging to Mr Birney, Mr McCaffrey and more than a dozen journalists working for BBC Northern Ireland’s Spotlight programme.
During the tribunal, the BBC submitted a legal request to join Mr Birney and Mr McCaffrey’s complaint, but this request stopped after MI5 made secret submissions to the tribunal.
The IPT has ruled today that the Met unlawfully put Mr McCaffrey under surveillance in 2012.
When the Met passed data on to the PSNI and Durham Police in 2018 this was also unlawful.
In September 2013, the PSNI accessed Mr McCaffrey’s mobile phone records for three weeks.
He was put under surveillance after he made a phone call to the PSNI press office while he was investigating alleged payments made to a senior PSNI official over the employment of civilian personnel.
This operation against Mr McCaffrey was unlawful, the tribunal ruled. It found police breached Mr McCaffrey’s Article 8 and Article 10 rights under the European Convention (ECHR).
Mr Birney today said that only a public inquiry will uncover the full extent of police surveillance operations.
“I hope that our judgment today will help to protect and embolden other journalists pursuing stories that are in the public interest,” he said.
“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. Our case has exposed the lack of effective legal safeguards governing secret police operations.
“As a result of our case going to the Investigatory Powers Tribunal, the PSNI has already been forced to admitted that they spied on 300 journalists and 500 lawyers in Northern Ireland.
“Only a public inquiry can properly investigate the full extent of unlawful and systemic police spying operations targeting journalists, lawyers and human rights defenders in the north.”
Mr McCaffrey said better legal safeguards were needed to protect journalists and their sources.
“This ruling marks a significant victory for press freedom, and it has exposed critical failures in both the monitoring and oversight of surveillance operations carried out against journalists and their sources,” he said.
“Despite all of their efforts, the police were still unable to identify our sources for the film.
"They wasted police time and resources going after us instead of the Loughinisland killers.
“The judgment, particularly its condemnation of Sir George Hamilton’s leadership, highlights the urgent need for reform.
“The police need to change, they should respect press freedom, they must abide by the rule of law and uphold the democratic principles of transparency and accountability.”
The tribunal ordered the PSNI to pay £4,000 each in damages to Mr Birney and Mr McCaffrey—similar to financial damages granted by the European Court of Human Rights to journalists Dirk Ernst and Natalia Sedletska after Belgian and Ukrainian authorities were found to have breached their Article 10 rights to protect journalistic sources.
Following today's judgment, PSNI Chief Constable Jon Boutcher said the force has changed its approach since 2018.
"Significant changes have already been made since these issues occurred, with the role of the Investigatory Powers Commissioners’ in authorising communications data requests and the Judicial Commissioners in cases involving those who handle confidential information," he said.
"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."
A spokeswoman from the Policing Board, the PSNI's oversight body, said it will consider the IPT's findings and discuss them with the chief constable "at the earliest opportunity".
"It was as a result of the Board’s serious concerns regarding this IPT case, that a report was requested from the Chief Constable regarding the use of surveillance on journalists and lawyers," she said.
"The subsequent establishment of the independent McCullough Review by the Chief Constable was designed to ensure full transparency on the use of surveillance by the police in the period from 2011 to date.
"The Board has asked the Chief Constable for the McCullough Report to be provided by 31 March 2025."