What a story! Journalists illegally spied on by the police. State agencies used covert surveillance in an attempt to discover the journalists’ confidential sources. Police forces fined for violating the journalists’ human rights. You might wonder why this unprecedented tale, which emerged into the light in December 2024, didn’t make big headlines across the British press at the time. Where was the outrage from the Daily Mail? Why didn’t The Sun scream or the Daily Mirror shout? Nothing in The Daily Telegraph; no Focus feature in The Sunday Times; a sensible, informative news article in The Guardian, but no leading article; 12 measly paragraphs on page 19 of The Times. Again, no thundering leader demanding an inquiry into how and why three police forces broke the laws they exist to uphold. Why not?
I don’t need to have been in the newsrooms to provide the answer: it happened in Northern Ireland, a place apart. No need to concern readers with that. It’s in the United Kingdom, apparently, but so separate, so easy to ignore. What happens in those six counties is no longer of any interest. In fact, be honest, they never really were. Conflict once forced them on to the
British newspaper agenda. So, from the late 60s, the so-called “troubles” – never call it a war, not even an insurgency – were given big media treatment. Until the peace process kicked in 30 years later, what happened in Northern Ireland was covered, albeit poorly and inaccurately, laced with misinformation, disinformation and bias. Now, the editors of the national press prefer to provide no information at all. They avert their gaze whenever the legacy of those years of violence pops up. Yet, in their wish to overlook that story about two Belfast-based journalists being spied on by the police, those editors have failed to grasp the misuse of power by the British state’s police and secret services. All journalists are under threat. Journalism is under threat.
Let’s begin with the conclusion, so to speak, by considering the low-key verdict delivered on December 17. After a six-year legal battle, Trevor Birney and Barry McCaffrey were found to have been unlawfully spied on by the police. The verdict in their favour was made by the Investigatory Powers Tribunal (IPT), a judicial body independent of government and parliament with a special remit to hear complaints about surveillance by public bodies, such as the police and security services. It is generally considered to be an ultra-conservative body, which has rarely found in any complainant’s favour. According to its own statistical report for 2023, it dismissed 85 per cent of complaints that year as being frivolous or vexatious.
Most of the other 15 per cent were dismissed for being out of time or out of jurisdiction, or were withdrawn. In no case was there a “determination in favour” of a complainant. That places this decision in perspective. For once, the clichéd designation, a landmark ruling, was justified. It was the first in which the IPT had ordered a police force to pay damages to journalists for unlawful intrusion. Only £4,000 each, but hugely significant all the same.
Even more so was the tribunal’s judgment, which stated that the former chief constable of the Police Service of Northern Ireland (PSNI), Sir George Hamilton, had acted unlawfully because he “did not consider whether there was an overriding public interest justifying an interference with the integrity of a journalistic source”. In other words, he had knowingly failed to meet the required legal standard. The tribunal rejected the PSNI’s claim that its surveillance operation had been designed to target a Northern Ireland Police Ombudsman official, the supposed – and entirely unproven – leaker of information to the journalists.
More astonishing still, the IPT registered yet another first in quashing a 2018 direct surveillance authorisation that targeted the journalists and their suspected source. During the course of the case, it emerged that the PSNI had put McCaffrey under surveillance in 2013, and that London’s Metropolitan Police force had done the same to him the year before (when dealing with an unrelated issue). The IPT, therefore, ruled that the Met had also acted unlawfully. Covert monitoring was extended to Birney following the making of a documentary movie, No Stone Unturned, produced by his company Fine Point Films. It told the disturbing story that was at the heart of the PSNI’s sinister attempt to compromise Birney and McCaffrey’s journalistic enterprise and integrity.
The “troubles” history is necessary here, for we must go back to June 1994, to the murder of six Catholic men watching a World Cup football match on TV in the Heights bar in the small Irish village of Loughinisland, Co Down. The drinkers’ backs were to the door when two men in boiler suits and balaclavas burst in and opened fire on them. A third man, their getaway driver, was outside. Some 90 minutes later, a loyalist paramilitary gang, the Ulster Volunteer Force (UVF), phoned a radio station to claim responsibility. The killings were considered shocking enough for the then-Northern Ireland minister in John Major’s Conservative government, Sir Patrick Mayhew, to visit the scene of the crime. He pronounced that the authorities would leave “no stone unturned” to bring the perpetrators to justice.
His promise went unfulfilled. Years passed. Key evidence went missing. Police inquiries ran into the ground. Pleas by bereaved families for action were ignored until, under pressure, the then-NI police ombudsman, Al Hutchinson, held an inquiry into the police’s failure to solve the murders and allegations of collusion between police officers and the UVF. His report, released in 2011, concluded that there was no evidence of collusion. It was dismissed as a whitewash.
New report concluded police and UVF colluded
His report was quashed by the Belfast High Court, and another inquiry was held under a new ombudsman, Michael Maguire. He reached a very different conclusion. According to his report, in 2016, there had indeed been collusion between the police and the UVF. However, no charges had been brought, to protect informers.
Enter Birney and McCaffrey with their 2017 film, directed by the Oscar-winning American documentary film-maker Alex Gibney. It named the main suspects, one of whom was a serving member of the British Army, and claimed – on the basis of sound evidence – that one was an informer. This embarrassed the PSNI, which was determined to discover how the journalists had uncovered the truth and dared to put it in the public domain. Who was their source? Had they stolen material from the ombudsman’s office? Had someone at the office removed it? Were they in receipt of stolen property? If so, could they be accused of unlawful disclosure of information? To answer those questions, police at the PSNI and the Met were prepared to break the laws that their organisations are pledged to uphold.
Having failed with their surveillance efforts, the PSNI decided on the full-frontal approach by arresting Birney and McCaffrey. One evening in December 2018, I was among a small audience at the headquarters of the National Union of Journalists for a screening of No Stone Unturned when they recounted the circumstances of their arrests some three months before. We heard a familiar scenario of excess force: two squads of armed officers flooding streets before conducting house searches, seizing phones and computers, scooping up documents and bagging often trivial items.
Gibney, tweeting from the United States, pointed out that the arrests were outrageous because the proper police response to the film should have been to reopen its flawed investigation into the Loughinisland massacre. He wrote: “Police reaction? Re-open murder investigation? No. Arrest the truth tellers.” In time-dishonoured fashion, the messengers were suffering for their message.
The PSNI, to distance itself from the hunt for the journalists’ sources, called in the Durham Constabulary to act as a “neutral” investigator. Durham, therefore, ordered the raids, which were actually conducted by PSNI officers. In a phone call with me weeks later, a Durham officer – unsurprisingly requesting anonymity – registered his distaste at his force being required to take part in “this whole sorry business”.
He was not the most notable critic because the Lord Chief Justice of Northern Ireland, Sir Declan Morgan, declared in July 2020 that the Durham force had obtained “inappropriate” search warrants, and ordered it to return all the confiscated property: the laptops, phones and documents seized from the men. He delivered a rebuke to the police and vindicated the journalists by saying they had acted in “perfectly proper manner” in protecting their sources. A month later, it was announced that Durham police and the PSNI had dropped their inquiries. Bail was eventually lifted. The PSNI’s police chief issued an apology. Then, in November 2020, the PSNI paid out £875,000 in damages: £600,000 to the film-making company, £150,000 to Birney and £125,000 to McCaffrey.
That settlement was not the end, of course, once the surveillance came to light and prompted the journalists to complain to the IPT. One hearing I attended in February 2024, was adjourned because of the late disclosure of police documents. McCaffrey’s counsel, Ben Jaffey KC, remarked: “This case is, I’m afraid, a shambles.” I sensed that the tribunal chairman, Lord Justice Singh, agreed. It was clear that the police, even when found out, were determined to frustrate the legal process holding them to account.
Following the IPT’s ground-breaking judgment against the forces of law and order Birney put the verdict in context: “We’ve got this victory, but this isn’t so much for us; it’s about journalism throughout the UK. It’s not just about Belfast or the north of Ireland, it is about police forces across Britain and about sources today who can actually look to this judgment and feel that they’ve got some protection if they have to act in a public-spirited way and speak with a journalist or act as a whistleblower, or provide documentation on public interest and matters of national security”. That is the factor our London-centric editors have failed to grasp.
Birney and McCaffrey believe there is a need for a public inquiry into the whole affair. “This is not about bashing the PSNI or scoring political points,” wrote McCaffrey. “It’s about fighting for press freedom and for democratic and accountable policing. Only when we get that public inquiry and accountable policing will Trevor and myself be able to say that this has all been worth it.”
But beware those who would seek to suggest that the IPT verdict amounts to making the police accountable. There is no equivalence to be found in balancing the initial reaction to the discovery of covert surveillance – outrage, incredulity, anger – with the tribunal finding: relief, sanity, justice. A journalistic exercise was obstructed by the illegal intervention of state authorities. Truly, the IPT judgment was an unprecedented outcome to an extraordinary case of unparalleled police mendacity. (All three adjectives are relevant). For this was about a lengthy, covert attempt to subvert the work of journalists. In such circumstances, an inquiry would be appropriate.
Outside the law court, Birney and McCaffrey posed next to an Amnesty International banner with a simple and righteous slogan: “Journalism is not a crime.” But it is surely a crime that Britain’s media editors have turned a blind eye to what happened. Or are too many of them, perhaps, recalling that their stock-in-trade for story-getting once involved listening in to people’s phone calls? Like the PSNI and the Met police.