By
Barry McCaffrey and Trevor Birney pictured at the Royal Courts of Justice in London
A special court in London is examining claims that police placed journalists under surveillance in Northern Ireland. The Investigatory Powers Tribunal (IPT) yesterday held another hearing into the case involving The Detail editor and former senior journalist Barry McCaffrey. Here Barry writes on why the latest hearing has again raised more questions than answers.
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THERE are so many elephants in the room it feels like the Serengeti.
It's Thursday July 18 and the unbearable heat inside courtroom 72 in the Royal Courts of Justice in London feels like we are actually in the Serengeti.
Representing the various state agencies are eight King's Counsel barristers, junior barristers and their accompanying solicitors packed into the four rows of tiny wooden benches in the body of the court.
The legal profession’s custom means men aren’t allowed to remove their jackets, regardless of the soaring temperatures.
They would be easy prey for the lions in the Serengeti.
Trevor Birney and myself are, by necessity, seated in the very front row of the court. Our mutual hearing problems mean we find it impossible to follow any of the proceedings from the public benches at the rear, even with special headphones provided by court officials.
Our barrister Ben Jaffey KC regularly questions how any whistleblower could ever have succeeded in passing on any state secrets to us without being forced to shout at the top of their voice.
We bear all the hallmarks of two naughty schoolboys in front of the headmaster as the three judges of the Investigatory Powers Tribunal (IPT) peer down at us repeatedly struggling with headphones.
Two technicians vainly try to fix the headphones as barrister for the National Union of Journalists, Brenda Campbell KC, applies to the court for the NUJ to be allowed to join the case.
The hearing is unexpectedly interrupted when one of the technicians gets a phone call.
Someone is going to be sent to the cells I think.
But hearing aids are the least of our problems this morning when it comes to the issue of following IPT proceedings.
The IPT, like many technical tribunals, is afflicted by a procedural language and phraseology not easily understood by mere mortals like ourselves.
It is a language all of their own.
There is much talk of section 67 sub section 3 (a) of RIPA.
RIPA, it emerges, is not the nickname of a nasty school bully, but is instead the Regulation of Investigatory Powers Act.
Likewise, the term ‘Respondents 3-7’ is repeated throughout this morning’s hearing like a biblical quote.
Any hope that the ‘Respondents 3-7’ mantra might bring a sense of peace and tranquillity to Trevor or myself is quickly banished when we discover that Respondent 3 is the Security Service (MI5), Respondent 4 is Britain’s communications spying headquarters (GCHQ), Respondent 5 the Secretary of State for Northern Ireland, Respondent 6 the Secretary of State for the Home Department, while Respondent 7 is Secretary of State for Foreign Commonwealth and Development Office.
This suddenly feels much more serious than being sent to the headmaster’s office.
The court eventually agrees that the NUJ can be part of the case but only with 25 pages of written submissions allowed.
The judges hear that while the NUJ wants to be part of the landmark case there is another key figure who has decided that he no longer wants to have any part in proceedings.
Former Durham officer Darren Ellis was the lead detective behind the August 2018 arrest of Trevor and me for allegedly breaching the Official Secrets Act.
The night before Thursday’s hearing, the IPT had disclosed an extraordinary email to us which Mr Ellis had written to the court earlier in the week announcing that he was refusing to give any further evidence in the case.
“The applicants and their legal teams operate in a community when no-one ever holds them to account,” he wrote.
“In a system that simply allows them to ride rough-shod over people who ‘dare’ challenge them.”
Making clear his intention that he would not now give evidence at the full hearing in October, Mr Ellis warned: “I have had enough. I have done my best. It seems the unfair ridicule and misrepresentation is to continue.
“If I do not receive a modicum of respect as we move through this process. I can assure all, colleagues, serving and retired watch these proceedings with keen interest. For a man of my standing to be thrown under the bus in this way will cause concern and anxiety to any who are so unfortunate to find themselves in any position similar to mine.”
Our barrister Ben Jaffey KC told the tribunal that Mr Ellis’ language was dangerous in the context of the history of Northern Ireland. It was language accusing “journalists and lawyers of payback.”
“Those words do create pause because this case is about journalists and lawyers doing their jobs. But Mr Ellis says that no one is holding them to account. That sort of language is dangerous,” he told the IPT.
Memories of the murders of journalists Martin O’Hagan, Veronica Guerin and lawyers Pat Finucane and Rosemary Nelson are all I can think of.
What follows is a protracted legal discussion as to how Mr Ellis can be made to give evidence to the court.
He doesn’t have a choice, and a court order can be issued to compel him to attend.
But we are concerned that the IPT could decide it is just too difficult and might not compel Mr Ellis to physically appear in the witness box to be cross examined by our barristers about his actions surrounding our arrests.
The temperature in the courtroom feels as if it is rising even higher as the judges retire to decide whether or not the former detective will have to give evidence.
Without his evidence how will we ever know what really went on in our case?
In any made-for-TV courtroom drama this is the squeaky bum moment.
Finally, the IPT panel remerges, we refit our headphones, which immediately break again, and the judges announce that the former detective must turn up in October to give evidence.
We wipe the sweat from each other’s brows.
The court breaks for lunch and we are invited to eat at the nearby Honourable Society of the Middle Temple in the heart of Britain’s legal land.
We dine in a huge Medieval hall which is only missing the cast of Harry Potter.
The wood panelled walls are adorned with huge portraits of the British monarchy, including King William III.
We are told that Shakespeare’s plays Twelfth Night and the Taming of the Shrew were first performed on the little stage in front of us.
The food is excellent. A far cry from the biscuit bars we were fed in the cells of Musgrave Street Serious Crime Suite in August 2018.
The afternoon is spent nervously waiting for the IPT hearing to resume in open session.
It had gone into secret session after lunch for discussions which neither us or our legal team are ever allowed to access or be told what has been discussed.
It is only the state agencies, MI5, GCHQ and who knows how many other unnamed, grey suited individuals, who are allowed to hear what is being said behind those closed doors.
We do know the reason for the secret hearing. The BBC in Northern Ireland, which has applied to become part of the case has asked MI5 if it spied on 16 of its journalists.
MI5 has announced that it will take six months and massive resources to be able to publicly admit any evidence that it spied on BBC journalists.
The fact that the main hearing in our case is due to be heard in the first week of October creates a huge problem.
The BBC has argued that the MI5 issue should be separated, and it should be allowed to take part in the October hearings regardless.
We have no objections.
The secret hearing is to decide if the BBC is in or out.
Finally, we shuffle back into the sauna that is courtroom 72 at 3.30pm.
We soon discover that whatever evidence MI5 and GCHQ has presented during that secret hearing has led the IPT to conclude that the BBC should be excluded from any part of the October hearing.
There is a stunned silence at the IPT announcement. Only the heavy feet of those elephants can be heard thundering through the room.
It is probable that we will never know what MI5 said in the secret session.
Has it been spying on BBC journalists in Northern Ireland? How many? How long? Who knows?
Having worked for the BBC on many occasions and with many journalistic friends within the corporation, I feel sure that the reverberations of those elephants will be felt both on many news desks and within management on the sixth floor at Broadcasting House.
With proceedings finally over for the day we silently trundle out into the early evening sun, and I head for the train and Gatwick Airport.
As I board the plane the events of today are still racing through my mind.
What exactly is going on?
I take out my phone to try and find WIFI, only to discover that apart from Mark’s Galaxy S22 Ultra the only other connection is with MI5 Surveillance.
Is this some kind of joke?
We will never know.