Belfast Telegraph

Warrants in Loughinisland massacre journalists' case to be quashed

Investigative journalists Trevor Birney and Barry McCaffrey with MP David Davis at a previous court hearing. Credit: Liam McBurney/PA
Investigative journalists Trevor Birney and Barry McCaffrey with MP David Davis at a previous court hearing. Credit: Liam McBurney/PA

By Alan Erwin

Warrants obtained by police to carry out raids on the homes and offices of two Belfast journalists are to be quashed, the High Court has ruled.

Senior judges held that authorisation for the searches which led to the arrest of Trevor Birney and Barry McCaffrey had been inappropriate.

A further hearing later on this week will determine whether documents seized in the operation should be returned.

The outcome represents a victory for Mr Birney and Mr McCaffrey in their challenge to the legality of warrants granted as part of an investigation into the alleged theft of confidential documents from the Northern Ireland Police Ombudsman's Office.

Following a two-day hearing Lord Chief Justice Sir Declan Morgan confirmed: "We are minded to quash the warrants on the basis that they were inappropriate, whatever the other arguments.

"We are going to list the case at 2pm on Friday for a discussion on the question of remedy."

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

Patsy O’Hare, Barney Green, Adrian Rogan, (bottom row left to right) Eamon Byrne, Daniel McCreanor and Malcom Jenkinson, who were killed in the tiny Heights Bar in Loughinisland, Co Down by UVF gunmen (PA)
Patsy O’Hare, Barney Green, Adrian Rogan, (bottom row left to right) Eamon Byrne, Daniel McCreanor and Malcom Jenkinson, who were killed in the tiny Heights Bar in Loughinisland, Co Down by UVF gunmen (PA)

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.

Floral tributes left at the scene of the Loughinisland massacre
Floral tributes left at the scene of the Loughinisland massacre

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

All of the seized material remains under seal, with police having given an undertaking not to examine any of the documents and computer equipment pending the outcome of the legal action.

Outside court Mr Birney claimed that following the release of No Stone Unturned police focused on the journalists, instead of those responsible for the murders at Loughinisland.

"That speaks volumes about where priorities lay for the senior ranks of the PSNI," he said.

"Why did they make the focus of their investigations two journalists, rather than using their resources to go after the killers and trying to bring justice to the Loughinisland families almost 25 years later?"

Describing the police operation as an attempt to "send a chill factor through journalists investigating the past in Northern Ireland", Mr Birney insisted all material seized must now be returned.

He added: "They should hand back the millions of documents, computers, laptops and also the mobile phones belonging to my children that they took from my home."

During the hearing lawyers for the two journalists had contended that the search operation was aimed at discovering sources and intimidating whistleblowers.

Judges were told the raids were told the raids were an "outrage" more akin to a police state than a liberal democracy.

1998: Loughinisland massacre
1998: Loughinisland massacre

It was stressed that 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.

On day two of the case counsel for the police forces under challenge argued that the warrants were sought amid concerns the material would be destroyed.

Peter Coll QC told the court detectives were focused only probing potential offences linked to a leak from the Ombudsman's Office.

"It doesn't translate into an opportunity to attack investigative journalism or an opportunity to try and inhibit and stymie and stifle freedom of expression," the barrister said.

"The purpose of the investigation is to deal with the criminality that arises from disclosure of these documents."

He also suggested consequences for comprising the secrecy and protection to those who provide the authorities with covert intelligence.

"They will simply take the view that if I provide information to the State there's a leaky ship in PONI (Police Ombudsman for Northern Ireland) and I cant be assured my identity is not going to end up at some stage in the newspapers or written on a wall," Mr Coll said.

But in reply, Barry Macdonald QC, for Mr Birney, set out details of an alleged reaction from Durham Police to his client meeting a cross section of MPs at the Houses of Parliament.

The court heard claims that a "foul and abusive" phone call was made to the offices of Grahame Morris, MP for Easington, Co Durham, from someone purporting to be a senior officer in the constabulary who "ranted about his meeting with 'terrorists and criminals'".

Mr Macdonald submitted: "That is obviously completely out of order, but it's reflective of a police officer in charge of this investigation who is, at the very least, over zealous."

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