In a landmark ruling, the UK’s Investigatory Powers Tribunal (IPT) has found that the Police Service of Northern Ireland and the Metropolitan Police acted illegally in surveilling two investigative journalists.
The ruling reaffirms the scope of Article 10 of the European Convention on Human Rights (ECHR) when it comes to protecting press freedom and the confidentiality of sources in a democratic society.
The case centred on the Northern Ireland-based journalists Barry McCaffrey and Trevor Birney, who in 2017 produced the documentary No Stone Unturned. Directed by Oscar-winning director Alex Gibney, the film re-examined the murders by the Ulster Volunteer Force (UVF) of six Catholics in a village pub in Loughinisland, County Down in 1994. The victims were watching a Republic of Ireland World Cup game at the time.
No Stone Unturned drew heavily on findings from the Police Ombudsman for Northern Ireland (PONI), which published a report in 2016 identifying collusion between the UVF and the Royal Ulster Constabulary as a significant factor in the killings. The report also concluded that the investigation into the murders had been deliberately undermined to protect informers, even those complicit in the crime.
While working on the documentary, McCaffrey and Birney engaged with PONI, but the final film also included two PONI documents leaked by a secret source. Prior to its release in the UK, PONI officials viewed No Stone Unturned and, to their alarm, spotted the presence of these documents.
In response, the Police Service of Northern Ireland (PSNI) initiated Operation Yurta, carried out by Durham Constabulary, to trace the source of the leaks. Search warrants were subsequently issued for the two journalists’ homes and business premises. During the dawn raids that followed, they were both arrested.
However, in 2019 those warrants were ruled unlawful by the Northern Ireland Divisional Court, which held that there was no overriding public interest which could justify such a significant interference with the protection of journalistic sources.
In a stinging rebuke to the PSNI, the then Lord Chief Justice of Northern Ireland, Sir Declan Morgan, said officers had obtained “inappropriate” search warrants. He also vindicated McCaffery and Birney, stating they had acted in a “perfectly proper manner” in protecting their sources.
The same year, the two men began proceedings under section 7(1)(a) of the Human Rights Act 1998, alleging breaches of their rights under the ECHR on the basis that they thought it likely the warrants against them were “not the only attempt made to identify their confidential sources”.
This hunch proved correct, with the IPT’s investigation revealing several instances of unauthorised or improperly authorised use of surveillance powers under the Regulation of Investigatory Powers Act 2000 (RIPA), a statute designed to regulate the use of covert surveillance and communications data by public authorities.
During the proceedings, it became clear that as long ago as 2012 London’s Metropolitan Police had launched Operation Erewhon to investigate alleged leaks of PONI information to McCaffrey and other journalists
As part of this operation, the Met applied for communications data under section 22 of RIPA, obtaining details of McCaffrey’s telephone calls, some of which implicated Birney. The same data was later shared with Durham Constabulary during Operation Yurta.
The IPT determined that these actions violated the claimants’ rights under Article 8 (right to privacy) and Article 10 (freedom of expression) of the ECHR, particularly given the lack of adequate safeguards to protect journalistic sources.
Further breaches occurred in 2013, when a PSNI detective constable lodged an application for covert surveillance under section 21 of RIPA for the purpose of “identify[ing] a PSNI employee who has passed police information to a journalist”. The application was granted and police obtained access to ten pages of McCaffrey’s outgoing call data from 7th to 16th September 2013.
The PSNI later conceded that this authorisation failed to meet the stricter scrutiny required when investigating journalists, thereby breaching Article 10 of the ECHR.
Then, in 2018, PSNI Chief Constable Sir George Hamilton, authorised covert surveillance of the claimants under section 28 of RIPA through a Directed Surveillance Authorisation (DSA). This was intended to find out whether they were meeting with confidential informants.
The IPT found Sir George’s authorisation to be unlawful under both common law and Article 10 of the ECHR, noting that he – like the issuers of the Operation Yurta search warrants – had failed to “consider whether there was an overriding public interest justifying an interference with the integrity of a journalistic source”.
Troublingly, the evidence disclosed to the tribunal also exposed wider PSNI practices of accessing journalists’ telephone data, including the targeting of a BBC reporter.
In its judgment, the IPT, chaired by Lord Justice Singh at the Royal Courts of Justice in London, ruled that the 2012, 2013, and 2018 authorisations were all unlawful due to insufficient safeguards for journalistic protections – and ordered them to be quashed. McCaffrey and Birney were each awarded damages of £4,000 in relation to the 2018 DSA, marking the first time that the IPT has ordered a police force to pay damages to journalists for unlawful intrusion.
The IPT is a specialist body that resolves complaints about the use of surveillance powers by public authorities. Established under RIPA in 2001, it has conducted investigations into 4,073 complaints against the intelligence agencies and police surveillance units, upholding just 47 of them.
Welcoming the IPT judgment, FSU General Secretary Toby Young said: “Journalist’s require the ability to speak to sources to do their essential job. Time and again, police forces have been found to ignore the important legal safeguards that enable this.
“Hopefully this case will send a message to Chief Constables that they’re required to uphold freedoms like free speech and not traduce them.”
