EVERY JOURNALIST welcomes the judgement of the Investigatory Powers Tribunal published Monday December 17, which ruled that the former PSNI (Police Service of Northern Ireland) Chief Constable had failed to meet the legal standard necessary to justify spying on journalists, and had neglected the need for heightened scrutiny of surveillance applications in cases involving journalists.
It also ruled that the actions of police when mounting covert sting operations were disproportionate and undermined the domestic and international protections available for the media.
This completely vindicates the position of NUJ members Barry McCaffrey and Trevor Birney who were arrested for refusing to divulge their sources during their investigative work on the documentary film ‘No Stone Unturned’.
NUJ Chair of the Belfast and District Branch, Anne Hailes, said: ‘In 2018, the PSNI arrested the two journalists for exposing police collusion in protecting the loyalist paramilitary killers of six men in the Co. Down village of Loughinisland in June 1994.
‘Thirty years on they have still arrested no-one for those murders.’
In 2019, the High Court in Belfast quashed the arrest warrants, and now in a ground-breaking ruling has quashed the Direct Surveillance Authorisation, thus reaffirming the legal right of journalists to protect their sources.
The ruling is also the first time that the Investigatory Powers Tribunal has ordered a police force to pay damages to journalists for unlawful intrusion.
The Tribunal judgment has ordered the PSNI to pay £4,000 each in damages to Trevor Birney and Barry McCaffrey.
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 also 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.
He was put under covert electronic surveillance after he made a phone call to the PSNI press office relating 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.
The PSNI application to access Barry McCaffrey’s phone records would have exposed sensitive journalistic information to the police.
Laura Davison, newly appointed General Secretary of the NUJ, said the IPT hearing and the determination was a landmark ruling with profound implications for media freedom in the UK.
She said: ‘By taking the case to the IPT, Barry McCaffrey and Trevor Birney have been responsible for shedding light on a very dark episode in the murky history of surveillance against journalists.
‘Our union has always been concerned at the secretive nature of the IPT and the lack of transparency in how evidence may be heard.
‘The public sessions and the tenacious quest for answers by the various legal teams provided an insight into the operation of the IPT, as well as insights into the way in which decisions were taken by those responsible for policing in Northern Ireland.
‘We learned some of what happened to Barry McCaffrey and Trevor Birney. Many questions remain unanswered. The IPT hearing cannot be the end of this matter since it has raised so many fundamental questions.’
Welcoming the IPT judgment, Trevor Birney said: ‘This landmark ruling underscores the crucial importance of protecting press freedom and confidential journalistic sources.
‘I hope that our judgment today will help to 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. 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 admit 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.’
Barry McCaffrey added: ‘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.’
‘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.’
Belfast and District Branch NUJ Chair, Anne Hailes, said: ‘It is now time for the British government to hold a full inquiry into the surveillance of journalists in Northern Ireland and we will await the outcome of the McCullough review to provide further details of the extent.
‘We need full disclosure by the PSNI of all instances of its abuse of surveillance powers against journalists and others including solicitors.’
‘The NUJ will continue to support journalists to uphold a key principle of the union’s code of conduct, which is to protect the identity of sources who supply information in confidence and material gathered in the course of their work.
‘The outcome of this hearing that began in October is a credit to the tenacity and determination shown by both Barry McCaffrey and Trevor Birney.’
The publication of the ruling took more than five years after the journalists submitted the claim to the IPT.
