Barry McCaffrey: Police surveillance puts investigative journalism under threat

A SALMON can spend five years in the wild North Atlantic before it embarks on its torturous, but vital, journey back to where it spawned.

Forced to battle up rivers and streams, against the tide and seemingly insurmountable obstacles, it makes this journey because that is what it is compelled to do.

For more than five years Trevor Birney and I have been battling against a tide of unlawful state surveillance and attempted cover-up, compelled – as journalists - to expose the true extent of the PSNI spying scandal against us, our colleagues in the media, lawyers, public servants and human rights defenders in the north.

The forces pushing against us have been mighty: the PSNI; Durham Constabulary; Scotland Yard; MI5, and GCHQ. These intelligence agencies have employed subterfuge, character assassination, cynical exploitation of the legal system and outright misinformation in trying to block our path.

However, we hope our journey will reach a natural conclusion this week, when a four-day hearing before the Investigative Powers Tribunal (IPT), takes place at the Royal Courts of Justice in London from today.

We have stood and marvelled on the steps of this impressive example of Victorian Gothic Revival architecture many times in recent years.

The courts are where Oscar Wilde sued the Marquess of Queensbury in 1895 after he accused him of engaging in, then illegal, homosexual activity.

It is where Margaret Thatcher’s government unsuccessfully tried to ban the publication of MI5 officer Peter Wight’s explosive Spycatcher memoir in the mid 1980s.

In 2003, the Hutton Inquiry sat to investigate the death of British chemical weapons expert David Kelly after he was accused of having "sexed up" claims that Iraqi leader Saddam Hussein had access to Weapons of Mass Destruction.

And in recent years, the Hillsborough Disaster Inquests and various Brexit legal challenges have been held inside this majestic cornerstone of British law.

Our litigation will never attract as much publicity as those famous cases.

But arguably it is one of the most important lawsuits in British legal history to challenge the unlawful state surveillance of journalists and their sources.

It is important too, in that some public light is being trained on intelligence agencies who excel at operating deep in the shadows.

As to why this intricate and highly complex legal case is being played out in a London courtroom, the reason is more prosaic: two police services who co-operated in the unlawful arrest of Trevor and I following the release of our documentary, No Stone Unturned, have subsequently fallen out.

No Stone Unturned

In October 2017 the PSNI announced that it had asked Durham Constabulary to investigate No Stone Unturned, which documented how Northern Ireland police had colluded with, and protected, UVF killers who murdered six men in Loughinisland on June 18, 1994.

Durham would lead an ‘independent’ investigation as the PSNI could not be seen to be investigating itself.

Trevor and I were subsequently arrested on August 31, 2018, and questioned about theft of sensitive intelligence documents and breach of the Official Secrets Act.

In June 2019 Northern Ireland’s most senior judges ruled that our arrests had been unlawful. We received a public apology from then PSNI Chief Constable Simon Byrne and substantial financial damages. Subsequent enquiries by our legal team as to the surveillance carried out to facilitate our arrests began to reveal what we now know to be the seemingly endemic monitoring of protected professions.

Faced with the prospect of being severely punished by the IPT, Durham Constabulary took the decision to disclose all and insisted that the PSNI had, in fact, been responsible for all unlawful activity.

This week’s hearings are tasked with determining which police force ultimately initiated, directed and controlled the industrial spying operation against journalists.

Many individual journalists have long suspected being spied on by the state for no other reason other than holding state agencies to account.

Our case is crucial because it is the first time that irrefutable, factual and undeniable evidence of a wholesale PSNI spying operation against Northern Ireland journalists has been made public.

The IPT is the only court in Britain with powers to investigate police and intelligence agencies and directed that we were entitled access to thousands of pages of PSNI and intelligence agency documents relating to the state spying operation against us.

The vast majority of the thousands of pages disclosed to us were redacted, with the PSNI claiming national security exemptions, but there were just enough details left for us to painstakingly piece this surveillance jigsaw together.

What we discovered was, and is, a shocking indictment of how the PSNI and intelligence agencies view the media as an enemy of the state.

The PSNI and intelligence agencies initially claimed that they had only spied on Trevor and myself and argued their actions were justified claiming we were disreputable, untrustworthy and corrupt journalists.

In 2013 – four years before the release of No Stone Unturned - PSNI officers sought written permission to spy on us, repeatedly referring to us as “criminals” who associated with “other criminals”.

Other papers revealed that the PSNI had been running a “defensive operation” monitoring the phones of Northern Ireland journalists for at least 13 years.

Surveillance tactics

Following that revelation, PSNI Chief Constable Jon Boutcher admitted that the PSNI had used surveillance tactics against 320 journalists and 500 lawyers.

The PSNI insisted to the Northern Ireland Policing Board that its industrial spying operation was merely an innocuous computer database designed to try and root out corrupt PSNI officers who may have been leaking stories to the media or accessing phone sex lines.

However, just weeks later more disclosure papers revealed how, in 2011, police had intercepted 4,000 telephone calls and texts between Trevor, myself and 12 BBC journalists. All the phone calls and texts were from journalist to journalist and involved no PSNI officers - so why exactly were police spying on journalists?

For Trevor and myself, this question goes to the crux of the matter. Just as every society needs a police force to uphold the law, society also needs a free press to ensure accountability and transparency.

The intelligence services continue to work against that basic tenet of democracy and, in July of this year, we witnessed firsthand their extraordinary ability to cynically use these secret hearings to turn events to their own advantage.

Earlier this year, BBC Northern Ireland had sought to join our legal challenge to determine if the PSNI and MI5 had targeted 12 of its journalists.

The various eminent legal experts present in court fully expected the IPT panel to rule that the BBC journalists could indeed join our legal case.

However, after a two-hour secret hearing with MI5 lawyers, the tribunal announced that the BBC would no longer be allowed to play any part in our case.

We have no idea what MI5’s lawyers said in that secret hearing. No reason has been given as to why those 12 BBC Northern Ireland journalists were excluded.

Documents previously revealed in our case had already shown that they, as well as Trevor and myself had been the target of surveillance by the Metropolitan Police Service over a four-month period in 2011.

The case of those journalists is now in legal limbo and could take another five years to get back into court.

It cannot be right that journalists targeted by illegal surveillance are excluded from court hearings while those who carried out these unlawful acts are free to put forward their spurious defence without fear of contradiction or challenge.

Investigative journalists serve as a watchdog, holding government and their agencies accountable for their actions.

Society puts its trust in investigative journalism to uncover corruption, abuses of power and to ensure that those in public office are answerable to the public.

Just as the salmon returning to its birthplace plays a vital role in protecting the local ecosystem, so too investigative journalism acts as an independent watchdog for a democratic society.

If we allow our rivers to be polluted then the salmon will be poisoned and die, and our environment and ecosystem will die with it.

If we allow the PSNI and intelligence agencies to unlawfully spy on investigative journalists and their sources, then the accountability and transparency which a free press guarantees will also wither and die.

That is what is at stake for investigative journalism in this case.