Belfast Telegraph

Searches of Loughinisland journalists 'more akin to police state', court hears

Journalists Barry McCaffrey and Trevor Birney outside Belfast High Court with their supporters and solicitors. Credit: Pacemaker
Journalists Barry McCaffrey and Trevor Birney outside Belfast High Court with their supporters and solicitors. Credit: Pacemaker

By Alan Erwin

Raids on the homes and offices of two Belfast journalists were an "outrage" more akin to a police state than a liberal democracy, the High Court has heard.

Judges were told the operation which led to the arrest of Trevor Birney and Barry McCaffrey was aimed at discovering sources and intimidating whistleblowers.

Mr Birney and Mr McCaffrey are challenging the legality of the search warrants obtained to carry out the trawls as part of an investigation into the suspected theft of confidential documents from the Northern Ireland Police Ombudsman's Office.

The case is connected to the murders of six Catholic men at Loughinisland, Co Down in June 1994.

UVF gunmen opened fire in a village pub as their victims watched a World Cup football match.

The award-winning investigative journalists were involved in the documentary film No Stone Unturned, which examined the Royal Ulster Constabulary's handling of the Loughinisland atrocity.

In August last year they were detained, questioned and released during an operation undertaken by detectives from Durham Constabulary, supported by PSNI officers.

Judicial review proceedings have been brought in a bid to have the warrants declared unlawful.

Police have given an undertaking not to examine any of the documents and computer equipment pending the outcome of the legal action.

Barry Macdonald QC, for Mr Birney and documentary maker Fine Point Films, told the court the case has "set off alarm bells" among media organisations in Britain, Ireland and the United States who have intervened in support of the journalists.

"This application arises from a police search operation that was nothing less than outrageous," he said.

"Under cover of a warrant that was obtained without giving the applicants the opportunity to be heard, and which should never have been granted, the police raided homes and business premises of two journalists and a film company.

"They rifled through all their confidential files, accessed literally millions of documents, and then seized computers, phones, media storage devices and documentary materials which they still retain - most of them completely unrelated to the pretext on which the search was carried out."

Counsel contended: "This was the kind of operation associated more with a police state than with a liberal democracy that does have in place laws designed to protect investigative journalists and their sources from this kind of intrusion.

"Those laws are in place in order that investigative journalists can perform their proper function of holding the state to account."

Conservative MP David Davis was among those who attended court to back the case being made for press freedom.

Before the hearing got underway he said Mr Birney and Mr McCaffrey did not deserve to have to go through the proceedings. 

"Their cause is so important it should be known throughout the whole of the UK and the rest of the world," Mr Davis said.

In court it was claimed that the raids could have grave implications for the ability of the press to continue to expose wrongdoing. Suspicions were raised that the operation was carried out to ascertain sources.

Advancing another possible motive, Mr Macdonald continued: "An ulterior motive was to undermine journalists and whistleblowers from exposing misconduct of the police.

"We have challenged police to provide examples of search warrants issued in any other case of this nature and that challenge has been ignored."

Lord Chief Justice Morgan, Lord Justice Treacy and Mrs Justice Keegan heard police were made aware the film was being made, with the intention of naming suspects whose identities have been in the public domain for more than two decades.

With no attempt made to seek a court injunction to stop the documentary, suspects were also notified and offered an opportunity to respond.

According to the journalists lawyers police downloaded millions of documents and pieces of information from their work server.

"It cannot be stressed how sensitive some of this is, as it contained journalistic sources cultivated through years of trust," Mr Macdonald insisted.

He claimed that out of 65 items copied from one computer in the journalists' office, only one was linked to Loughinisland. 

The barrister went on: "One set of files related to a case of clerical child sex abuse, that was taken by police knowing it was completely unrelated to Loughinisland."

Quoting an affidavit from Mr Birney, he said: "The entirety of our sources have now been compromised by virtue of this impugned search."

Gavin Millar QC, for Mr McCaffrey, claimed the journalists' right to receive and impart information under Article 10 of the European Convention on Human Rights had been violated.   

He argued that any police attempts to justify overriding an entitlement to protect their sources "completely breaks down".

"The prosecution of Mr McCaffrey for receiving leaked information, disclosing some bits of it in the documentary and identifying suspects would serve no substantial public interest whatsoever," he said.

"He was just doing his job as a journalist in receiving the information and disclosing it in the documentary to the public, in the public interest."

The barrister described steps taken by the filmmakers to notify police and suspects about its contents as "a classic example of responsible journalism".

Claiming the circumstances surrounding how documents came into his client's possession in 2011 as "hopelessly vague", he told the court the evidence did not point to the source having any improper motive.

"Alleged criminality on the part of this public official is a nonsense," Mr Millar submitted.

"The reason they (the police) did that is they had to create this illusion of criminal offending of huge gravity to justify taking the desperate step of ordering search warrants for all of these journalists confidential material."

Peter Coll QC, responding for the police forces, stressed that there are currently no prosecutions.

"What the court is faced with is the early stages of a police investigation into what is alleged... relating to the release of information from within PONI (the Police Ombudsman's Office) that in some form made its way to those producing this film where it was then further disclosed," he said.

Mr Coll suggested potential charges could be brought in due course against unidentified individuals for disclosing information or any alleged misconduct in a public office.

He added: "The offences set out in the warrant application may not necessarily be where matters end up."

The hearing continues.

The case continues.

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