Allegations that UK police and intelligence spied on investigative journalists to identify their sources will be heard by a secret tribunal on Wednesday, with judges urged to ensure as much as possible takes place in open court.
Trevor Birney and Barry McCaffrey asked the investigatory powers tribunal (IPT) to look into whether police in Northern Ireland and Durham, as well as MI5 and GCHQ, used intrusive surveillance powers against them.
The pair, whose case is a cause célèbre among press freedom campaigners, were arrested in 2018 after they produced No Stone Unturned, an award-winning documentary about apparent collusion between the police and suspected murderers in the 1994 Loughinisland massacre, in which six Catholic men were killed by loyalist paramilitaries.
Northern Ireland’s top judge subsequently rebuked the Police Service of Northern Ireland (PSNI) and Durham constabulary – which carried out raids against the men – due to a potential conflict of interest within the PSNI, and ruled the arrests were unlawful.
The journalists then asked the IPT to investigate the use of covert surveillance against them but only found out last year, almost four years after their complaint to the tribunal, that it had been conducting a secret investigation into their case.
The two-day hearing in London beginning on Wednesday is the IPT’s first concerning Birney and McCaffrey where the public will be allowed in at all, but there are fears that if substantive parts are held behind closed doors the full truth will not come out.
McCaffrey said: “We fear that this [surveillance] is happening all over the UK. If police have been engaged in wrongdoing, if police protected killers or broke the law the public has a right to know. That’s not national security. How is secret hearings and hiding behind the national security issue in the interest of open justice, public confidence? National security is stopping people from being killed, stopping bombs, it’s not hiding the truth.”
He said it was a test case for safeguards introduced in 2016 that were intended to protect journalists against police misconduct, but that justice would not be served if the police were able to make assertions in private that could not be challenged by the journalists or their lawyers.
Birney said the IPT had done great work so far but added: “To hold the police forces and intelligence services to account, they have to be seen to be held to account. At the end of the day I hope that we learn what happened and we come to fully understand exactly the scope and the level of the operations that were put in place against us, that’s what we’ve been waiting for five years. And I hope these hearings are the start – or the beginning of the end – of that process, when we can get the full truth.”
Amnesty International said the IPT hearing had the potential to be “a test case for press freedom in the UK”, while Open Rights Group called it groundbreaking.
The human rights groups were signatories to a joint statement alongside the Committee to Protect Journalists, Index on Censorship and Reporters Without Borders UK in which they urged the IPT to ensure “public transparency and accountability”.
They said: “The use of covert surveillance against journalists who speak the truth to power harms everyone’s right to freedom of expression and information. We are also concerned that it is not only journalists who are subjected to unlawful action by public authorities using covert intrusive techniques involving UK authorities.
“The police must come clean; Durham constabulary and the PSNI should reveal the full extent of the covert and intrusive surveillance used to target journalists.”
On Wednesday morning, the National Union of Journalists in Belfast will hand in a letter backing the pair to the PSNI chief constable, Jon Boutcher, to coincide with the start of the case in London.
