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Police mounted surveillance op to find source after journalists’ arrest, tribunal hears

Barry McCaffrey and Trevor Birney investigated the 1994 UVF massacre in Loughinisland, Co Down in their film No Stone Unturned

Journalists Trevor Birney, left, and Barry McCaffrey, right, in London ahead of a specialist tribunal over claims UK authorities used unlawful covert surveillance. Photograph: Jordan Pettitt/PA Wire

David Young
Wed Feb 28 2024 - 18:27

Police mounted a covert surveillance operation following the arrest of two journalists in an attempt to unmask one of their sources, a tribunal has heard.

The Investigatory Powers Tribunal (IPT) was told that the arrest of Barry McCaffrey and Trevor Birney in 2018 was a “disruptive” tactic to see if the reporters would reach out to the source after being released from custody.

The tribunal is examining allegations that the award-winning journalists were subject to unlawful covert surveillance by UK authorities.

It heard a series of revelations as the case opened on Wednesday, including allegations that the Metropolitan Police illegally obtained Mr McCaffrey’s phone data in 2011 – data that police in Northern Ireland subsequently secured seven years later as part of another inquiry into the reporter’s work.

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In 2018 Northern Ireland-based Mr McCaffrey and Mr Birney were controversially arrested as part of a police investigation into the alleged leaking of a confidential document that appeared in a documentary they made on a Troubles-era massacre.

The PSNI, citing a conflict of interest, asked Durham Police to lead the investigation into the inclusion of the Police Ombudsman for Northern Ireland document in the No Stone Unturned film on the 1994 UVF massacre in Loughinisland, Co Down.

The PSNI later unreservedly apologised for how the men had been treated and agreed to pay £875,000 in damages to the journalists and the film company behind the documentary. The settlement came after a court ruled the warrants used to search the journalists’ homes and Fine Point Films were “inappropriate”.

In 2019 Mr Birney and Mr McCaffrey lodged a complaint with the IPT asking it to establish whether there had been any unlawful surveillance of them.

The tribunal case began in London on Wednesday and was due to sit for two days but the hearing was adjourned before lunch on the opening day due to the late disclosure of police documents.

One document was a directed surveillance authorisation approved by then PSNI chief constable George Hamilton. This gave the green light for covert surveillance of an individual whom officers suspected of being the source of the leaked document from the Police Ombudsman’s office.

Before adjourning the case, tribunal chairman Lord Justice Singh invited counsel for the journalists to outline their cases in broad terms.

Ben Jaffey KC, for Mr McCaffrey, said the directed surveillance authorisation document, which he got first sight of at 7.30am on Wednesday, was key to the case.

“The nature of the operation is now pretty clear,” he said. “It was to arrest the two journalists with the intention of releasing them the same day – the intention was not to ask any serious questions or because they needed to be interrogated under arrest. But because they wanted to create what is sometimes euphemistically called a disruption or a surprise.

“They would then be released at the end of the day and then aggressive covert attempts would be made to see if they got in contact with their source.

Journalists Barry McCaffrey, left, and Trevor Birney outside the Royal Courts of Justice in London. Photograph: Jordan Pettitt/PA Wire

“The whole purpose of the operation was to unmask the journalistic source.”

The surveillance operation was conducted for two weeks before Mr Hamilton granted an application for it to be cancelled.

Mr Jaffey set out a series of grounds challenging the legality of the surveillance authorisation. He disputed a police contention that the operation was not intrusive.

He said surveillance of that nature required approval of a judicial commission, not solely a chief constable.

The tribunal also heard that as part of the 2018 investigation, police “reinterrogated” phone data it requested from the Metropolitan Police in London related to Mr McCaffrey. It emerged that the Met Police obtained Mr McCaffrey’s data in 2011 in another investigation aimed at revealing the identity of a source.

Mr Jaffey said he and his client were made aware of this revelation only last Friday.

“We had no idea that communication data had been obtained in that operation,” he said. “It seems overwhelmingly likely that that communications data authorisation was unlawful.”

The tribunal was already set to examine claims that the PSNI itself unlawfully accessed Mr McCaffrey’s phone records in 2013 as part of an unrelated investigation into his journalistic work. Mr McCaffrey had been investigating alleged police corruption around the time his data was accessed by the PSNI in 2013.

Mr Jaffey said the PSNI had acknowledged that its actions in that case were unlawful and the only matter for the tribunal to determine was the remedy.

The police forces represented at the hearing will respond to the applicants’ case when the substantive hearing resumes.

The respondents in the case are the PSNI, Durham Police, MI5, the Security Service Government Communications Headquarters (GCHQ) and several government ministers.

Outside court, Mr Birney and Mr McCaffrey expressed shock at the details that had emerged on the first day.

“I think it was stunning just to hear our counsel outlining just what has been going on since 2011,” Mr Birney told reporters outside the Royal Courts of Justice in London. “It is still somewhat shocking.”

Mr McCaffrey said: “Three different police forces in the UK have been trawling journalists. Every journalist in the UK should tonight be asking themselves was I one as well. Was it me?

“And they should be going to the IPT and asking and finding out have they been victims like Trevor and myself.” - PA

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