NUJ statement on Investigative Powers Tribunal report

• 17 Dec 2024

The National Union of Journalists welcomes the publication of the Investigatory  Powers Tribunal published online this morning (December 17th 2024).

The National Union of Journalists welcomes the publication of the Investigatory  Powers Tribunal published this morning.

McCaffrey and Birney v PSNI and others - The Investigatory Powers Tribunal

The determination is a vindication of the position taken by NUJ member Barry McCaffrey, Trevor Birney and  by the National Union of Journalists in support their long campaign following g the unlawful actions of the Police Service of Northern Ireland and the Metropolitan Police Service.

Their arrests arose from their powerful investigative work on the documentary film “No Stone Unturned".

Three police forces have been involved in this legal case - the Police Service of Northern Ireland, the Metropolitan Police Service and Durham Constabulary. Durham police were acting on behalf of the PSNI when two journalists were arrested as part of a criminal investigation in 2018. The judgment issued today has ruled against the PSNI and the Met.

The publication comes more than five years after the journalists submitted the claim to the IPT. In 2019 the High Court in Belfast quashed the arrest warrants and this morning the IPT ,  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 of significance  because it is 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— this figure is similar to previous 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.

During the tribunal hearing in October at the Royal Courts of Justice in London, the PSNI’s lawyers denied there has been a cynical attempt to deliberately circumvent the long-established legal protections for journalists and their sources.

The written judgment  describes former PSNI Chief Constable Sir George Hamilton’s decision to authorise the directed surveillance operation as “unlawful at common law” and that it violated the European Convention on Human Rights (ECHR) and the Human Rights Act 1998.

The tribunal judges have ruled that the former Chief Constable had failed to meet the legal standard necessary to justify spying on journalists and he had neglected the need for heightened scrutiny of surveillance applications in cases involving journalists. The actions of police when mounting the covert sting operation were also disproportionate and undermined the domestic and international protections available for the media.

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 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. The tribunal heard that Barry McCaffrey was put under covert electronic surveillance after he made a phone call to PSNI press office. This call related 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.

Disclosures at the tribunal showed that the PSNI application to access Barry McCaffrey’s phone records admitted this would expose sensitive journalistic information to the police. The official police documents reveal how Barry McCaffrey was repeatedly described as a “suspect” who associated with “other criminal suspects”.

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. "

Séamus Dooley, Assistant General Secretary, NUJ paid tribute to Barry McCaffrey, Trevor Birney and all involved in "No Stone Unturned" and to union members for their support in defence of the right of journalists to work without the shadow of surveillance.

He said: “At the heart of this case is a lack of regard for due process and a failure to recognise that journalists have a right and duty to investigate matters of public importance. "

"In this regard we welcomed the establishment of the McCullough Review into the conduct  of the PSNI currently being conducted by Angus McCullough KC and look forward to the completion of that review, against the backdrop of the IPT determination."

"We have always believed that the IPT should operate with maximum transparency and that secretive hearing are contrary to the principles underpinning the judicial system in a modern democracy. The  full judgment is deserving of careful scrutiny."

"It was important that the NUJ should be joined in the action and tribute to due to the NUJ's legal representatives at the hearings in October: solicitor Olivia O'Kane, Brenda Campbell KC , Sean Mullan BL, and Natasha Morris, NUJ Legal and Equality Officer."

Commenting on today’s outcome Olivia O’Kane said: "The NUJ provided the IPT with witness statements from a variety of members and journalists together with two sets of detailed legal submissions and its legal team attended the hearing of this case.  That, together with the important work undertaken by the NUJ over many years in supporting this legal action, was of huge significance."

"The NUJ, were no doubt central in illustrating the general out-workings of the real-world consequences if there are derogations to public interest and investigative journalism without lawful scrutiny prior to such interference. "

"This case involved serious matters of journalistic legal principles, the rule of law and public interest journalism.  On behalf of its members, the NUJ successfully advocated on these important and constitutional issues."

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.”

Insisting that the IPT judgment reinforced the urgent need for increased legal safeguards to protect journalists and their sources, Barry McCaffrey said: “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."

A witness statement made by Detective Superintendent Brian Foster, from PSNI Anti Corruption Unit, was submitted to the Investigatory Powers Tribunal in May 2024. The statement suggests that UK police forces regard journalists as the biggest police corrupters.

Since its formation in 2001 the IPT has conducted 4,073 investigations into complaints made against the intelligence agencies and police surveillance units. It has only upheld 1% (47) of those complaints.

Chair of the Belfast and District Branch of the National Union of Journalists Anne Hailes welcomed the key findigs of the Investigatory Powers Tribunal. She said it was an important landmark for press freedom which sent out a clear message journalism is not a crime.

“The award of £4000 each to NUJ branch member Barry McCaffrey and Trevor Birney is an acknowledgement by the tribunal that an application for a Directed Surveillance Authorisation made in 2018 by a detective and granted by the PSNI Chief Constable to monitor an individual suspected of supplying confidential information to the journalists was unlawful under European human rights legislation,” she 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.”

“Significantly, disclosures at the tribunal revealed the Metropolitan Police, acting on behalf of the PSNI, obtained more than 4,000 text messages and phone communications belonging to Barry McCaffrey, Trevor Birney and more than a dozen journalists working for the BBC Northern Ireland investigative programme Spotlight. 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. This judgement has shown how the PSNI saw fit to disregard safeguards designed to protect that right.”

“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. What is now needed are legal safeguards that will prevent the police from further abuse of covert surveillance powers against journalists and others in Northern Ireland.”

“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,” she concluded.

 

• News
• Media freedom
• press freedom

Return to listing