Police in Northern Ireland ran a rolling program to monitor the telephone records of “trouble-making journalists”, a tribunal heard.
Journalists that “were perceived to be conducting unwanted investigations” into the Police Service of Northern Ireland (PSNI), were subject to unlawful monitoring, it was claimed.
The “defensive operation”, revealed in documents disclosed at the Investigatory Powers Tribunal (IPT) on 8 May 2024, was intended to identify confidential sources of journalists, said barrister Ben Jaffey KC.
The IPT is investigating claims that Northern Ireland journalists Trevor Birney, Barry McCaffrey and former BBC journalist Vincent Kearney were unlawfully placed under surveillance by the PSNI, Durham Police and the Metropolitan Police.
A police note of a meeting between Durham Police and the PSNI disclosed to the tribunal revealed the PSNI ran “defensive operations” to cross-reference telephone billing information with police telephone numbers on a “six-monthly basis” – in an apparent attempt to identify police officers that had contact with journalists.
Addressing the tribunal, Jaffey said the PSNI had been running an “extensive operation” to identify journalists’ confidential sources in 2017 and that the operation had apparently been in place for some time before then. It was unclear how long the operation continued and whether it was still going, he told the tribunal.
“As well as being obviously unlawful, this rolling programme of authorisations had never been disclosed by the PSNI’s evidence … to the tribunal to date,” he said. “Full disclosure and evidence is required on this matter of grave public interest and concern.”
The police note records a meeting between a detective inspector at Durham Police – brought in by the PSNI to assist in investigating Birney and McCaffrey’s sources – and two senior detectives at the PSNI’s professional standards and anti-corruption intelligence unit.
It discusses an investigation by Durham Police, codenamed Operation Yurta, that attempted to identify the source of an official document used by Birney and McCaffrey in a documentary film exposing police failures to investigate the murders of six innocent people killed by a paramilitary group in Loughinisland, County Down, in 1994.
According to the document, senior detectives suspected that there had been a series of leaks in 2007 and 2008 from the PSNI, which included police statistics to a “small group of local journalists”, including McCaffrey, who were “always looking for a story”.
The note reveals that senior intelligence officers ran the names of eight individuals, believed to be journalists, through a “standalone” intelligence system in 2017, but failed to find any matches.
Lawyer targeted
The tribunal also heard that the PSNI considered obtaining communications data from solicitor Niall Murphy, who acts for Birney, but that it was unclear whether the PSNI had gone ahead.
The PSNI has not disclosed whether or not it obtained Murphy’s phone records, but the purpose was to identify Birney and McCaffrey’s journalistic source, said Jaffey.
Journalists Trevor Birney and Barry McCaffrey outside court
A tribunal hearing in February this year heard that Durham Police and the PSNI made “repeated and entirely unjustified” attempts to put the two journalists under surveillance.
They included an attempt by the PSNI to obtain Birney’s work emails, an operation by the Metropolitan Police to collect large amounts of information from McCaffrey’s phone in 2011, and unlawful access by the PSNI of McCaffrey’s phone data in 2013.
Documents disclosed in the February hearing also alleged that the PSNI had carried out surveillance against former BBC journalist Vincent Kearney during his work on a 2011 Spotlight documentary investigating the independence of the police watchdog in Northern Ireland.
Further examples of police surveillance came to light this week after lawyers for the journalists were handed more than 600 pages of documents.
They included an approach by the PSNI to French police to obtain intelligence about a trip Birney and McCaffrey made to the country in 2016.
“We don’t know the content of the request and whether a response was given, but we infer this was all directed at journalists’ sources,” Jaffey told the court.
The Metropolitan Police obtained a communications data authorisation to access McCaffrey’s phone data for four months in 2011. And the PSNI attempted to obtain communications data from Birney’s wife.
“We infer this was intended to identify his journalistic source, or at least provide preservation of such material,” said Jaffey.
“Again no explanation or disclosure had been offered by PSNI, which has not complied with its duty of candour in this regard,” he added.
Surveillance not a joke
Jaffey said the legal team had received hundreds of pages of new disclosure at the end of last week, which include details of extensive use of investigatory powers against McCaffrey and others. “They now need to be investigated,” he said.
Jaffey added that he had joked at a hearing in February that he had lost count of the number of times McCaffrey had his communications monitored.
The PSNI didn’t say a word. They didn’t deny anything, but they didn’t rebut anything. To me, their silence says it all Barry McCaffrey, journalist
“That is no longer a joke,” he said. “It is no longer possible for Mr McCaffrey to know how many times his communications data was accessed to find his journalistic sources.”
Jaffey said the PSNI had failed in its duty of candour and duty of disclosure to the Investigatory Powers Tribunal.
“Had it not been for Durham’s proper compliance, there was a real risk that the tribunal would not have sight of the material it has, and there would be a real risk of miscarriage of justice,” he said.
The two journalists were arrested in 2018 as part of a “disruption operation” by police to identify a confidential source that supplied information used in the documentary No stone unturned, which exposed collusion between the PSNI and a paramilitary group.
Birney and McCaffrey were exonerated in 2019 by the former Lord Chief Justice of Northern Ireland, Declan Morgan, in a judicial review, which found that Durham Constabulary and the PSNI unlawfully used search warrants in an attempt to identify Birney and McCaffrey’s sources.
Press freedom undermined
Speaking outside court today, McCaffrey said the relationship between the PSNI and journalists had been infected by unlawful spying.
He said the PSNI has had every opportunity to stand up today to deny or explain the spying allegations. “They didn’t say a word. They didn’t deny anything, but they didn’t rebut anything. To me, their silence says it all.”
Birney said it was shocking that journalists going about their business lawfully were treated so unprofessionally by the PSNI. “Ultimately, I think it is an undermining of freedom of the press and an undermining of the relationship between the PSNI and journalists,” he added.
Further hearings are due to be held later in the year.
