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At the end of last year, the Investigatory Powers Tribunal (an independent judiciary body) made a shocking landmark judgement. The tribunal found that the Police Service of Northern Ireland (PSNI) and the Metropolitan Police had unlawfully conducted surveillance into two investigative journalists.
The PSNI was forced to pay £4,000 in damages to Barry McCaffrey and Trevor Birney, producers of No Stone Unturned, a 2017 documentary about alleged police collusion in the unsolved Loughinisland massacre in 1994.
The two journalists were arrested in 2018 by the PSNI over leaked documents that appeared in the film. Their arrest was later ruled unlawful. Suspecting that this was one of multiple attempts by the police to identify their sources, McCaffrey and Birney brought a complaint. The tribunal’s subsequent investigation and ruling has revealed the extent of the surveillance on the pair, and drawn attention to more examples of surveillance on journalists. These are now being investigated by a review set up after the tribunal’s ruling.
The PSNI admitted last year to making 823 applications for communications data for journalists and lawyers over 13 years. Additionally, more than 4,000 phone communications between 12 journalists were monitored by police over three months.
The force also admitted employing covert tactics against 320 journalists while intercepting over 4,000 telephone calls and texts between McCaffrey, Birney and a dozen BBC journalists. This is espionage on an industrial scale.
The treatment of the journalists has rightly raised concerns about press freedom. But as a senior detective who specialised in covert policing, and who now lectures criminal investigation students about the practice, I find this case extremely worrying for the future integrity of covert policing in the UK.
Covert policing and human rights
Covert policing refers to a combination of clandestine policing tactics used to lawfully access information and evidence that may not otherwise be obtainable. These tactics are an essential investigative tool in tackling contemporary organised and serious crime – they are not intended to police the 4th estate.
Journalistic confidentiality is a privilege legally protected from covert policing, other than in exceptional circumstances. These privileges (along with legal and medical) are basic and sacrosanct, and cannot simply be ignored or trampled upon. Hence, the reason for the checks and balances in the process of authorising covert policing.
With the advent of the UK Human Rights Act in 1998, an accountability framework was necessary for covert policing to satisfy the rights set out in the European convention on human rights.
I was a member of various national working groups which worked tirelessly around the turn of the millennium to legitimise and regulate clandestine tactics through the introduction of the Regulation of Investigatory Powers Act and its associated codes of practice.
To comply with human rights, the deployment of covert policing must be justified, necessary, proportionate and lawful. Law enforcement agencies employing theses tactics are held accountable through oversight by the Investigatory Powers Tribunal.
This framework has largely proved to be very effective and compliant with the relevant laws and human rights. Although there has been a rise in the number of complaints by private individuals to the IPT since 2017, less than 4% were actually found to have failed to comply with the framework.
UK law enforcement and the public are still coming to terms with serious and systematic abuses by undercover police officers targeting campaigners over a period of 40 years. Against that backdrop, it is imperative that the deployment of covert policing by law enforcement agencies complies with the governance regime put in place.
The tribunal found that in the case of Birney and McCaffrey, the former PSNI chief constable did not comply with the necessary legal requirements to authorise the surveillance operation. They said that the constable failed to “consider whether there was an overriding public interest justifying an interference with the integrity of a journalistic source”. Clearly, there is public interest in identifying who was responsible for the Loughinisland massacre, which is what the journalists were seeking to do with their documentary.
Trust in police
At the heart of this calamity lies public confidence and legitimacy in policing. The British public believes in press freedom to expose unacceptable behaviour, especially by public servants, and greatly dislikes the abuse of power by the police to prevent that.
In this case, the police service has again overstepped the mark by its egregious conduct. And I am concerned that it is merely the tip of the iceberg. Given the collaboration between the PSNI and Met police reported in this case, it would be very surprising if such proactive “monitoring” of journalists was not underway in many forces.
McCaffrey, Birney and others are right to call for a public inquiry to establish the extent of such covert operations by the police service. There is a clear and significant danger when the police extend their clandestine reach to unjustifiably and unnecessarily spy on journalists. A review of the extent of such operations across the UK would be in the interests of transparency and accountability. It would also go a long way to repairing the damage caused to public trust in the police and covert policing by this case.
Steve Christopher does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.
