The police broke the law to spy on journalists - and that should worry us all

A landmark judgment has found that forces across the UK illegally tried to discover journalists’ sources—now we need the full story

Barry McCaffrey (left) and Trevor Birney outside the Investigatory Powers Tribunal in London earlier this year. Photo courtesy of Sarah Kavanagh.

On 18^th June 1994, two members of the Ulster Volunteer Force in boiler suits and balaclavas walked into a bar in Loughinisland, County Down and opened fire. Six people were killed.

Nobody has ever been charged with the Loughinisland massacre. In 2018, two men were arrested in connection with the crime—but they weren’t loyalist gunmen, they were Northern Irish journalists who had made a film about collusion between police and paramilitaries in the killings. The journalists were subsequently released but they had a hunch: the police were spying on them.

Now we know they were right. On Tuesday, a landmark tribunal judgement found that Trevor Birney and Barry McCaffrey had indeed been subjected to illegal police surveillance. But it also found that more than 800 other people had been the target of similar operations over many years. Other forces, including the Met Police, were involved, raising huge questions about the spying operations of police and security services across the UK.

The Investigatory Powers Tribunal (IPT) deals with complaints about unlawful surveillance of citizens by the police, security services and other public authorities. It’s a pretty conservative body: of more than 4,000 cases heard, it's found in the state’s favour 99 percent of the time. Birney and McCaffrey are now among the one percent.

The Police Service of Northern Ireland (PSNI) was ordered to pay £4,000 in damages to each of the men. That might not sound like much but it’s the first time the tribunal has ordered a police force to pay compensation to journalists for unlawful intrusion. More importantly, the IPT’s judgment— which you can read in full here—shows how the police run extensive, secret surveillance operations to find journalists’ sources.

Birney and McCaffrey are two of the most indefatigable investigative journalists you could imagine, grizzled reporters with a track record of scoops and awards dating back decades. The Loughinisland film, No Stone Unturned, named suspected gunmen and presented compelling evidence of collusion, some of it based on leaked documents from the office of the Northern Irish police ombudsman.

The PSNI, more interested in finding the leaker than the killers, raided McCaffrey and Birney’s homes in the early hours one morning on 31st August 2018. They were hauled off for questioning. The force later unreservedly apologised and agreed to pay £875,000 in damages to the journalists and the company behind the film.

At this point the story might have ended without the quick wits of Birney, McCaffrey and their legal team. The men lodged a complaint to the Investigatory Powers Tribunal based on their suspicions that the arrest warrants were “not the only attempt made to identify their confidential sources”. What eventually came back is jaw-dropping.

The PSNI, and other British police forces which it had drafted in to conduct “independent” investigations, had spied on McCaffrey at least four times over the last decade and a half. In 2012, the Met made, and were granted, applications for communication data relating to eight telephone numbers. One was McCaffrey’s. Another belonged to then BBC Northern Ireland journalist Vincent Kearney.

Britain’s largest police force was accessing details of journalists’ incoming and outcoming calls, location data and more to find their sources. As the IPT tribunal ruling lays out, “within those data were details of McCaffrey’s calls with Mr Birney.”

The following year, McCaffrey rang the PSNI press office. He wanted to talk to them about a story he was working on, concerning potential corruption in the practice of retiring and rehiring former officers of the Royal Ulster Constabulary (the former police force in Northern Ireland). Shortly afterwards a Northern Irish detective constable lodged an application for covert surveillance for the purpose of “identif[ing] a PSNI employee who has passed police information to a journalist.”

A journalist follows best practice by contacting the subject of an important corruption story. The police respond by putting him under covert surveillance. It’s like something out of Line of Duty.

And it gets worse. In 2018, in the wake of No Stone Unturned coming out, an application was made by a PSNI detective sergeant, and granted by then chief constable George Hamilton, for covert surveillance on McCaffrey and Birney. In the application, the officer justified the surveillance as necessary to “increase the public confidence” in the police. Durham Police had already been brought in, too, to assist in the leak investigation.

The tribunal found that the 2012, 2013 and 2018 surveillance of McCaffrey—and the 2018 spying on Birney—was unlawful. Disclosures during the case showed that police had surveilled journalists at BBC Northern Ireland’s flagship investigative show, Spotlight, and tried to get access to the communications data of 320 journalists and 500 lawyers over a 14-year period. Most victims do not know that they were ensnared in the police’s dragnet.

If two journalists at the Guardian or the Times (and half of Panorama) had been spied on by police it would be a national scandal. The BBC did apply to join the tribunal case, but the request was turned down, in July, following an intervention from a lawyer representing MI5, as has been reported by Private Eye.

It might be tempting, for some, to chalk all this down to the Troubles, and to the culture of impunity in which security forces ran informers who were involved in dozens of killings. But that would be to miss the much bigger issue: that police forces, well beyond Northern Ireland, have been spying on journalists, including those reporting on police corruption, in a relentless effort to identify their sources.

As Trevor Birney said to me when we spoke after the judgment on Tuesday, “Did the PSNI come up with this playbook themselves? I doubt it. They would have got it from another force in the UK. I’ve no doubt about that.”

PSNI Chief Constable Jon Boutcher has now admitted that “due consideration was not given to whether there was an overriding public interest in interfering with journalistic sources before authorising surveillance.” Angus McCullough KC will head an independent review into the Northern Irish police’s use of surveillance against journalists.

McCaffrey and Birney say that a full public inquiry is needed. David Davis agrees. “This is the most dramatic and most far-ranging decision I’ve heard from the Investigatory Powers Tribunal,” the Conservative MP said this week.

He’s correct. When newspapers tapped phones there was, rightly, the Leveson inquiry into Fleet Street’s dark practices. Thanks to the Investigatory Powers Tribunal we know that police forces broke the law to spy on two journalists. But there are strong signs that this is just the tip of the iceberg. Now we need to know the full story.

A version of this piece appeared on Prospect magazine online.

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Christmas is often a good time to bury bad news. So I was struck by a set of disclosures from the Advisory Committee on Business Appointments (ACOBA) that dropped yesterday and seem to have had little attention.

It turns out not one but two former Tory ministers and an ex-chief whip have been reported to the Cabinet Office for breaching anti-corruption rules that require former senior government figures to seek clearance to take on new jobs.

Onetime defence minister (and former solider) James Heappey failed to get ACOBA’s approval before signing a contract with HPO Technologies, a software firm that operates in the defence sector. ACOBA chair Eric Pickles said Heappey was “unambiguously in breach of the rules.”

Former transport minister Huw Merriman neglected to ask ACOBA’s approval before agreeing to lead a board supporting the development of a new railway line between Liverpool and Manchester. Mark Jenkinson, who served under Rishi Sunak and Liz Truss, failed to ask permission before setting up a management consultancy called Redghyll Ltd on July 8, four days after losing his seat in the general election.

All the politicians involved apologised. They won’t have to worry much about their punishment. ACOBA - widely derided as ‘toothless’ - has no power to sanction anyone for breaching anti-corruption rules….