Looking back with hope and anger
Trevor Birney, Barry McCaffrey & Gerry Carson, joint chair of the NUJ’s Irish Executive Council. - © Kevin Cooper Photoline
The Belfast branch showed their support throughout - © private
Collecting their material from Castlereagh police station - © Kevin Cooper
4 June 2019
Séamus Dooley, NUJ assistant general secretary
On Monday 3 June, Belfast journalists Trevor Birney and Barry Mc Caffrey were advised by their legal teams that the Police Service of Northern Ireland (PSNI) and Durham Constabulary were dropping their investigation into allegations of criminal behaviour against them.
Since August the two journalists have been on police bail but have never been charged. That bail is now being lifted.
No evidence of criminality was ever produced by the police, yet two journalists of outstanding commitment and professional integrity have had their professional lives put on hold by the actions of two police forces whose motivation was at the very least questionable.
The work of Birney and McCaffrey in their ground-breaking documentary No Stone Unturned helped focus attention on the police failures in investigating the 1994 massacre at Loughlinsland but it did more that that. It produced shocking evidence of police collusion and identified those responsible for the murder by the UVF of Adrian Rogan, Malcolm Jenkinson, Barney Green, DanMcCreanor, Patrick O'Hare and Eamon Byrne. We should never forget their names.
The official response was to go after the messengers. For nine months, from August 2018, the threat of prosecution has hung over our members.
On Monday night, in confirming that Birney and McCaffrey are to be released from police bail, the Chief Constable of Durham Police Mike Barton declared: “At all times, my officers have acted in good faith, within the law and followed due process We do, however, accept and respect the decision of the High Court last week.”
Protection of sources backed by judge
Lord Chief Justice Sir Declan Morgan found that the arrests were “inappropriate”. He vindicated the NUJ members and was explicit in stating that in seeking warrants for their arrest there was an obligation on the police to present full information to the court. That meant considering their legally recognised, professional obligations to protect confidential sources of information.
The Lord Chief Justice went one step further. The work of journalists, he declared, is essential in holding the state to account, “particularly in a society like ours where confidence in the institutions is so important”. On several occasions he referenced the right of the two journalists to adhere to the NUJ Code of Conduct and to follow the advice of their union to take all steps available to them to protect their confidential sources of information.
The obligation to take into account the rights of the journalists rested not just with the presiding judge at the county court but also with the applicants, who chose the route of an ex parte application for a court order, thus depriving the journalists of the opportunity to oppose the move – or indeed of advance notice of the police action.
As the nightmare for Barry and Trevor comes to an end many questions remain unanswered but they can all be summarised in one: Why?
Why did the PSNI and Durham Constabulary, appointed to carry out an investigation into police failures, not make an appointment to meet Trevor Birney and Barry McCaffrey, with their legal representatives if necessary?
It’s a matter of record that the police were aware in advance of the film.
It’s a matter of record that the Police Ombudsman of Northern Ireland was aware of the content and took part in panel discussion on the film on its release.
What material did the police believe they could gain that was not available from the film?
In arresting McCaffrey and Birney they knew well that the journalists would not reveal confidential sources of information.
Was it a question, to paraphrase the county court judge, of frightening the crow to frighten off the other crows in the field?
Well, if that was the objective they have failed spectacularly. For investigative journalists in Northern Ireland there are sadly many untilled fields, many unsolved crimes, many rocks under which are hidden dark secrets of murder, criminality and collusion.
It is the function of journalism to shine a light into the darkest corners, without fear or favour
No Stone Unturned is an uncomfortable film which takes risks. That’s perhaps the reason why it has yet to be broadcast by the BBC or RTÉ. But the professional reputation of Birney and McCaffrey means that it cannot be ignored. Their integrity is reflected in their decision to alert the PSNI to the content of the film in advance, to ensure that their work did not compromise any police investigation.
Branches and chapels throughout the UK held special screenings of the film in support of the camapign.
In the High Court the Lord Chief Justice upheld the right of investigative journalists to ask awkward questions, to go where the authorities have failed to go and to hold to account those in whom trust has been shattered.
The appeal judges of the High Court have restored faith in the judicial process.
Last night’s statements by Durham Constabulary and the Chief Constable of the PSNI do nothing to restore confidence in the police and nothing to restore the confidence of either the Loughinisland families or journalists in Northern Ireland. There’s no hint of regret for the unwarranted grief and distress called to Barry McCaffrey, Trevor Birney, their families and professional colleagues or for the failures outlined by the High Court last week.
The Policing Board of Northern Ireland must intervene and examine the handing of this case, including the preparation of the ex parte injunction, the manner in which the searches were carried out, including the degrading and humiliating treatment of McCaffrey and Birney, the draconian bail conditions and the cost of this relentless pursuit of two journalists whose only crime was to seek the truth.
Given the involvement of both the PSNI and the Durham Constabulary it is clear that a broader, independent investigation is needed, not least because of the mindset and prejudicial behaviour outlined in the High Court towards McCaffrey and Birney.
There are two outstanding examples of what Barry McDonald, QC for Trevor Birney and Fine Point Productions, described as a “warped mindset”.
World Press Freedom Day
The retired British police office Darren Ellis had been called in by the PSNI to investigate the alleged theft of documents. In his notebook Ellis expressed concern that lives had been “put in danger for merely having the misfortune of being involved in terrorist atrocities at whatever level”. There were incredulous gasps when McDonald quoted that passage.
There were gasps too when counsel revealed that Ellis had contacted Grahame Morris, a Labour MP in Durham, after the NUJ visit to the House of Commons when McCaffrey and Birney met a number of members of parliament. It was revealed that Morris had subsequently received a call from someone “purporting to be Darren Ellis”. The caller was “foul and abusive” to his staff and had “ranted” about the MP having met “terrorists” and “criminals”.
The Chief Justice brushed aside a suggestion from Peter Coll QC, acting for the police, that Ellis should be allowed to respond. It was at that point that Chief Justice Morgan called a brief adjournment, before returning to grant the application by Trevor Birney and Barry McCaffrey.
Against that backdrop one can take with a large pinch of salt last night’s statement from Durham Constabulary and the PSNI.
It’s simply too little, too late and goes no way towards restoring confidence in the police service.
It remains for the media to hold those in power to account. The vindication of McCaffrey and Birney makes that task easier but the mindset of those who hold that power must change.
Film screening in Edinburgh
We in the NUJ are proud of the stand taken by Barry McCaffrey and Trevor Birney.
We can be proud too of the support given by the NUJ at every level.
This was not just an NUJ battle and we acknowledge the support of local, national and international organisations including Amnesty NI, the Irish Congress of Trade Unions, the International Federation of Journalists, the European Federations of Journalists and all those who helped highlight this grave injustice. Belfast and District branch, under Gerry Carson’s direction, have been exemplary, as has the support of branches across the union.
The fine work of the legal teams combined with political lobbying and strategic campaigning has yielded results. The work of our campaigns department, our legal department and the direct engagement of the General Secretary has been of vital importance.
We were well served by John Finucane, solicitor, Gavin Millar QC and Peter Girvan BL.
Without Barry and Trevor’s determination in the face of adversity none of this would have been possible.
The High Court case is a significant vindication of the NUJ and a reminder of the value of union membership.
It serves as a reminder of the unique value of the cornerstone of our union, the Code of Conduct.