#IFJBlog: Spying on journalists damages us all

The surveillance operation on journalists Trevor Birney and Barry McCaffrey in Northern Ireland is the most high-profile and egregious instance of the Police using communications intercepts to spy on journalists to come to court in the UK. The case is expected to shine a bright light on both the techniques used to undermine journalists, and the culture among law enforcement agencies where this is considered acceptable behaviour. IFJ Deputy General Secretary Tim Dawson attended the hearing as convenor of the IFJ's working group on the surveillance of journalists.

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The Police Service of Northern Ireland (PSNI) headquarters in Belfast photographed on 10 August 2023. (Credit: Paul Faith/AFP)

However it is dressed up, the surveillance operation on journalists mounted by the Police Service of Northern Ireland (PSNI) is staggering. For a decade, officers spied on Trevor Birney and Barry McCaffrey, two of the journalists behind No Stone Unturned (2017), a documentary film about police collusion with the perpetrators of 1994's Loughinisland massacre.

PSNI obtained phone records and emails. They mounted a dramatic dawn raid on the journalists in a sting operation designed to force journalistic sources to break cover. Police maintained a secret database of Northern Ireland journalists and lawyers to cross reference the fruits of their snooping. They ordered five separate swoops on McCaffrey's communications and applied for the phone records of more than 320 journalists.

At a hearing in London yesterday, we also learned that a former senior police officer alleged to have overseen spying on journalists in Northern Ireland must give evidence in person.

The Tribunal was told that Detective Ellis, of the Durham Constabulary (as he then was) had played a significant role in the surveillance of Birney and McCaffrey. The claimants argued that Ellis' evidence is critical to understanding the case.

Ellis was a detective with Durham Constabulary, and was drafted in by PSNI to oversee the investigation into Birney and McCaffrey. Documents disclosed to the court include many of Ellis' detailed notes of meetings held with PSNI officers. They describe a secret database of journalists' phone numbers that was used for ongoing surveillance.

The court was also told that although Durham Constabulary is represented in court, Ellis is not. An email sent by Ellis to the court was read out. In it he accused the journalists and their legal teams of 'placing a ring of steel around corrupt activity' and 'living in a community where they are not held to account'.

Ben Jaffey KC, for Birney and McCaffrey described these comments as: "profoundly damaging to journalists and their lawyers, and an attempt to drag us into the past".

The Tribunal also agreed that the National Union of Journalists (NUJ) could 'intervene in the case', allowing the union to become an official party to the case to represent the more general interests of journalists.

The actions of PSNI might elicit a crumb of sympathy if they were devoted to resolving some of the many unsolved crimes that have occurred in Northern Ireland. Only last week, for example, there were fresh calls from the Irish Parliament for a new investigation into the 2001 murder of journalist Martin O'Hagan. There are plenty more unsolved cases that deserve police attention, including Loughinisland, itself, where six people were mown down in a spray of automatic gunfire aimed into a packed public house.

But like most illegal police surveillance of journalists, in the UK at least, solving crimes was not the prompt for law enforcers to become law breakers. The Police became snoops because they were searching for internal whistleblowers - police employees, real or imagined - who had passed information to journalists.

This ought to be cause for surprise. If you track known cases of police illegally spying on journalists over any period of time, however, it is wearily familiar. Almost every time that police, anywhere in the UK, surveil journalists, it is for the same reason - to plug leaks in their own workforce.

The drumbeat is relentless. In 2015 Police in Scotland apologised for unlawfully seizing a journalists' phone records as they tried to track down the officer who briefed a journalist that the investigation into a vicious attack on a young woman had been 'bungled'.

Two years later the Chief Officer of Cleveland Police resigned after admitting the monitoring of three journalists' phone records, in search of whistleblowers, who were Police officers.

Around the same time, Police in Suffolk admitted to using similar tactics to try and close down an internal leak. The Chief Constable of the time claimed that his force's actions were "appropriate".

The PSNI's actions will no doubt continue to unravel. There will be further appearances at the Investigatory Powers Tribunal in the Autumn; Angus McCullough KC has been appointed to conduct an independent review. The prospects of a potentially combustible 'star witness' increase the chances of significant further revelations.

A corrosive impact

What can't be undone, however, is the corrosive impact on journalism itself. This takes two forms.

The first is the impact on journalists who are surveilled. This will affect different people in different ways, of course. Some will shrug it off, others will be traumatised.

McCaffrey told me: "Realising that I had been spied on, again and again, over years, has been hard to deal with. It has left me in a closed loop, wondering what I said, to whom, and who had been listening in? It creates the kind of pressure that could easily push you over the edge, and there is no real way to resolve those feelings of intrusion, invasion and abuse".

More troubling still is the way that surveillance undermines the practice of journalism itself.

That a journalist will protect their sources is arguably their most sacrosanct undertaking. It features in every known code of journalistic conduct, and is the defining trope in nearly every depiction of a reporter. It provides the assurance to a whistleblower that a journalist will take every possible step to protect their identity, should it be necessary.

If the trust invested in journalists by confidential sources - witnesses to wrongdoing, casualties of violence, victims of institutional failure - is eroded, so falls away the means by which redress might have been found. No one contacts a journalist if they think their communication could be intercepted by those they seek to expose.

Without that trust, we would all know a great deal less about what is done in our name and at our expense. Count the number of times in a new broadcast or paper you read the words 'a source told me', 'someone with knowledge of the situation explained', or 'a friend of' said. All are confidential sources.

That police forces contribute to such damage on the pettiest grounds is all the more depressing because, like journalists, their ultimate mission should be to protect democracy by uncovering the truth. Despite this, with the tools of surveillance in their hands, senior officers seem unable to resist spying to solve problems that would be better flushed out with effective management.

Like so many scandals before, the treatment of Birney and McCaffrey will no doubt end with hand-wringing, apologies and more compensation. But this is not enough.

With a new broom in charge of justice we need a clear steer from the Government that journalists' sources are protected in law with good reason - they underwrite liberties that we all enjoy. Clear direction on this from the Department of Justice is required to ensure the Police understand that their job is to safeguard journalists, not to undermine them, and when they do, whatever may be the embarrassing revelations, we are all the beneficiaries.

Tim Dawson is the deputy general secretary of the International Federation of Journalists

Published

19 July 2024

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