After a tribunal ruled that two investigative journalists, Trevor Birney and Barry McCaffrey, were unlawfully spied upon in order to find out their sources, the pair were at pains to stress that they consider what was uncovered to be just the tip of the iceberg.
They believe the case highlights an endemic problem in the relationship between police and journalists across the UK, stretching far beyond Northern Ireland where they are based.
Their 2017 film No Stone Unturned, about apparent collusion between the police and suspected murderers in the 1994 Loughinisland massacre, led to the case at the investigatory powers tribunal (IPT). But this was not solely about the legacy of the Troubles.
The pair’s 2018 arrest over the alleged leaking of two documents in the documentary – for which the Police Service of Northern Ireland (PSNI) previously paid them and the production film company damages of £875,000 – came 20 years after the signing of the Good Friday agreement. And furthermore, the tribunal found that McCaffrey had also been targeted for an altogether different reason.
On that occasion, in 2013, a surveillance order was issued after he phoned the PSNI press office chasing a story about alleged bribery involving an official in the force.
The fact that this call led to unlawful spying by the very authority he was trying to hold to account will send shivers down the spines of reporters who make serious enquiries to police forces on a routine basis.
Journalists – and the public – will also be appalled that the unlawful surveillance authorisation issued on the day of Birney and McCaffrey’s 2018 arrest was granted by the PSNI’s most senior officer at the time, Sir George Hamilton, “who did not consider whether there was an overriding public interest justifying an interference with the integrity of a journalistic source”.
The Metropolitan police, the country’s biggest force, was also found to have unlawfully spied on McCaffrey.
The intelligence services were also accused, although that evidence was considered by the IPT behind closed doors and did not form part of the open judgment published on Tuesday.
“This isn’t a case about the PSNI alone and no one should try to see this as just the unlawful actions of a regional police force in Belfast,” said Birney. “It seems to us that the Metropolitan police was the go-to force whenever the PSNI wanted journalists to be spied upon.
“That’s why we need a public inquiry, because this is much, much bigger than just the PSNI, this involves some of the biggest organisations in the state, ie MI5, GCHQ and Scotland Yard.
“I think it’s vital for journalists right across the UK that we understand and fully appreciate what these intelligence services are doing, what devices or techniques they use to surveil journalists and the reasons they’re doing it.”
McCaffrey and Birney said they had “zero confidence” that others were not suffering the same treatment, pointing to material disclosed during the tribunal proceedings.
The IPT heard evidence about – though did not pass judgment on – a “defensive operation” by the PSNI in which it allegedly covertly surveilled a group of journalists on a six-month rolling basis because they were conducting unwanted investigations into the force.
The PSNI’s chief constable, Jon Boutcher, called this interpretation “wrong”, saying it was not covert and was aimed at “identifying and deterring illegal contact with journalists”. But his reassurances hold little weight with Birney and McCaffrey.
In a witness statement to the tribunal in May, Det Supt Brian Foster, the head of PSNI’s anti-corruption unit, was unapologetic: “The operation above was last conducted in March 2023. It has been suspended until the conclusion of the tribunal proceedings but it is a valuable tool and may be used again.”
He also said: “The National Police Counter-Corruption Advisory Group considers journalists to be among the main police corruptors.”
His words gave the impression that, for at least some senior officers, journalists are the enemy. And the IPT judgment, significant as it was, will do little to change that.
