Ex-police officer's claims that solicitor tried to buy a gun were 'based on a joke meme the lawyer received'

A RETIRED police officer claimed that a solicitor sought to buy a gun, based on a joke internet meme forwarded to the lawyer in a WhatsApp message, a tribunal has heard.

Retired Durham Constabulary officer Darren Ellis, who led a probe into the alleged theft of sensitive Police Ombudsman documents, yesterday told the Investigatory Powers Tribunal (IPT) in London that prominent solicitor Niall Murphy, from Belfast firm KRW Law, had tried to buy a gun.

The IPT is investigating if police subjected Trevor Birney, editor of The Detail, and former senior journalist Mr McCaffrey to unlawful surveillance in an attempt to uncover their sources.

Mr Ellis’s claim was made in a private session of the tribunal yesterday.

Ben Jaffey KC, who is leading the case for the journalists, told a public hearing today that the claim was based on a message between Mr McCaffrey and Mr Murphy in 2017 which was found on a mobile phone seized by police as part of the journalists’ arrests in 2018.

The WhatsApp message from Mr McCaffrey asked Mr Murphy if he was interested in a “nine millimetre with two clips and about twenty shells”.

He then sent a photo of a nine millimetre spanner, two stationery clips and twenty seashells. The message is a well-known meme.

Mr Jaffey told the tribunal “the criminal offence here is his (Mr McCaffrey’s) sense of humour”.

He said the message was “elevated” by Mr Ellis to suggest Mr Murphy wanted to buy a gun.

“With respect… he could not possibly believe that based on this material,” he said.

The IPT, which looks at complaints against the UK’s intelligence services, is investigating how three police forces, the PSNI, Durham Constabulary and Metropolitan Police, sought to carry out surveillance against the journalists.

Mr Birney and Mr McCaffrey made a complaint to the IPT after they were wrongly arrested in 2018 by officers from Durham Constabulary and the PSNI (Police Service of Northern Ireland) over their documentary No Stone Unturned into the Ulster Volunteer Force (UVF) killing of six men in Loughinisland, Co Down, in June 1994.

The PSNI later apologised to the journalists for their arrests and paid substantial damages.

Dangerous language

In today's hearing, Stephen Toal KC, representing Mr Birney, said Mr Ellis had described the journalists as “terrorists” in a phone call to the office of Labour MP Grahame Morris in late 2018, several months after the film-makers’ arrests.

Mr Ellis rejected the claim.

However, Mr Toal said: “He (Mr Ellis) did call them terrorists."

Mr Toal said the use of such language is “dangerous…and particularly in Northern Ireland”.

He said that during Mr Ellis’s evidence yesterday, the former officer had made a “series of lies” under oath including that he had never been in Northern Ireland until he began his investigation into the theft of documents.

Mr Toal said Mr Ellis had actually “conducted a separate investigation there months previously”.

“The attitude displayed by him towards the journalists, their solicitors, their counsel, the judiciary, members of Parliament is deeply disturbing,” he said.

Cathryn McGahey KC, representing the PSNI, said some of the remarks made by Mr Ellis in his evidence were “clearly inappropriate and intemperate”.

She added that Mr Ellis was not “acting in a frolic of his own” and that the PSNI took responsibility for actions he made during his investigation.

Closing statements

The tribunal heard lengthy closing statements from Mr Jaffey, Mr Toal and Ms McGahey.

During the inquiry, the tribunal heard that police had obtained Mr McCaffrey’s phone data in 2013 in an attempt to discover his potential sources while he was investigating alleged corruption within the PSNI.

Mr Jaffey said there was legal protection for journalistic sources “even if the source is acting criminally”.

He said safeguards to protect sources in this case had been bypassed and Mr Birney and Mr McCaffrey had not been able to challenge police because actions had been made in secret.

He said the tribunal should rule there had been a breach and also award damages.

Ms McGahey said the PSNI accepted it had acted unlawfully in 2013 and would destroy information obtained from Mr McCaffrey’s phone data.

She said the PSNI “had acted in good faith and by the code of practice as it was understood to be at the time”, adding that the force did not believe Mr McCaffrey was entitled to any damages.

In 2018, following the journalists’ arrests, the PSNI put an official from the Police Ombudsman’s Office, who officers suspected had leaked the documents, under surveillance.

Police followed the suspect because they thought he might meet the journalists following their release from custody.

Mr Jaffey said the journalists were also the target of the surveillance.

“You can’t evade the legislation when you target the source and not the journalists,” he said.

Ms McGahey said protection for journalistic sources was “not absolute” and there was a “huge public interest in identifying a public servant who leaked material and to deter others from doing so”.

Mr Jaffey said the PSNI had said it had not used covert powers.

However, he said the PSNI’s decision to run checks on journalists’ phone numbers every six months were a covert operation.

He said journalists would not have known that, after they contacted the PSNI press office, their numbers had been added to a database used to run checks.

Mr Toal said police’s actions will have a “chill effect” on anyone wanting to expose wrongdoing in the future.

“The concerted effort to harvest the data of Trevor Birney and his sources will increase the chill effect on future sources,” he said.

He said the cultivation of sources was a key part of Mr Birney’s business and it had been affected by the actions of police.

“In order for press freedom to win, the police must lose this case,” he said.

The hearing is scheduled to end tomorrow.