Historic victory for all journalists, says NUJ
The judgment on No Stone Unturned case endorsed the protection of sources and NUJ code
Today the full written judgment has been announced and published relating to the decision made at the High Court in Belfast on 31 May 2019 to quash the warrants for the arrest of investigative journalists and NUJ members Trevor Birney and Barry McCaffrey. Last year the court quashed the warrants and reserved their reasons, today they have explained their decision in full.
The judgment released today is concerned with the circumstances in which the police can use the ex parte procedure contained in the Police and Criminal Evidence (PACE) Act 1989 to obtain a search warrant in respect of journalistic material. Under the PACE legislation, it is usual practice that journalists are issued with a production order and journalists can then challenge this request in an open court.
In the case of Trevor Birney and Barry McCaffrey, the ex parte procedure was used instead of a production order. On 10 August 2018, Judge Rafferty authorised the warrants to search the homes of Trevor and Barry and the business premises Fine Point Films.
The search warrants were in connection with the investigation led by Durham Constabulary focused on the offences of theft, handling stolen goods, unlawful disclosure of information and unlawfully obtaining personal data.
The investigation was given the name Operation Yurta and the senior investigation officer was Peter Darren Ellis. Ellis took issue with the content of the film as he wrote in the police policy book that "the misreporting and sensational hypotheses reached in the film were being broadcast with impunity and continued unchecked".
The judgment today stated: "He [Ellis] was so exercised by this that he had asked the PSNI to reflect on the decision not to seek an injunction to prevent further broadcasting." The judgment refers to a note made by Ellis that said: "The process appears unfair with a pseudo-type journalistic murder investigation intent on embarrassing the authorities."
The rationale used by the authorities to justify an ex parte search warrant (rather than issuing a production order) relied upon reference to an earlier investigation carried out by the Metropolitan Police Service at the request of the PSNI. In June 2012, the Met wrote to Barry McCaffrey and asked him to reveal his source for another story. Barry declined and maintained the principle of source protection set out in the NUJ's ethics code.
The judgment today states there was "no confidence that the trial judge applied the right test" when granting the ex parte search warrants. The judgment also refers to both journalists attempting to "take all steps to try to protect the identity of the source". Furthermore it states: "There is nothing suspicious or inappropriate about this. It is exactly what one would expect a careful, professional investigative journalist to do in anticipation of any attempt to identify a source."
The judgment concludes: "We see no overriding requirement in the public interest which could have justified an interference with the protection of journalistic sources in this case".
The NUJ believes this is a vindication of the union's ethical code of conduct and a victory for all journalists who abide by the principle of source protection. Journalists must be free to investigate and reveal the truth without the fear of arrest. The ordeal faced by Trevor and Barry was a clear example of the police protecting their own and punishing the messenger.
Michelle Stanistreet, NUJ general secretary, said:
"This case is an important and historic victory for all journalists working in the public interest. We very much welcome the decision of the judges to quash the warrants and the bold emphasis they have placed on the right of journalists to protect their sources. Today they have clearly stated that the most appropriate procedures to use in law in any attempt to access journalistic material is not ex parte search warrants.
"Journalists must not be treated as criminals, they must not have their homes and offices raided, simply for doing their jobs. This judgment comes at a time when journalism is in crisis and our society is in turmoil. This judgment is good news for democracy and it sends a clear signal to the authorities and to all those working to serve the public interest with quality, investigative journalism.
"The union would like to thank everyone who offered their support for this campaign and offered vital solidarity to Barry and Trevor who have put through an unnecessary and traumatic ordeal."
Gerry Carson, chair of the NUJ's Belfast and District Branch, said:
"We are delighted that this long-overdrawn saga carried out by the police against our two award winning colleagues has finally ended. Trevor and Barry were in effect victimised for merely doing their job as good journalists. They stuck firmly to the ethics and rules of the National Union of Journalists, facts borne out by the Lord Chief Justice, and so doing have strengthened the values and benefits of being active members of our union. We, in the Belfast and District Branch, together with our fellow journalists in the Derry/North West branch, are proud to have accompanied Trevor and Barry every step of the way, in their resolve to see justice and fair play brought into reality.
"We are grateful also to other unions throughout the UK, Ireland and beyond for their support and that also of Amnesty International and the many organisations worldwide who backed the makers of 'No stone Unturned', a film which raised vital questions about senseless killings which have yet to be tackled."
Background information about the case
On 31 August 2018, two Belfast-based investigative journalists and NUJ members, Trevor Birney and Barry McCaffrey, were arrested in connection with the alleged theft of a confidential report from the office of the Police Ombudsman for Northern Ireland.
The leaked unredacted report was sent to the journalists by an anonymous source - McCaffrey received a plain envelope in the post with no return address. The document related to the first police investigation into the killing of six men in Loughinisland, Northern Ireland in 1994 and the document features in the film No Stone Unturned.
The documentary, No Stone Unturned, tells the story of the victims and their families. It also examines the police investigation into the murders – for which no one has yet been charged. Furthermore, the film names the murder suspects and highlights allegations of collusion between the police and the gunmen.
When Trevor Birney and Barry McCaffrey were arrested, they were questioned for 14 hours and their homes and office were raided by the police.
The criminal investigation linked to the judgment today included the following legal threats to both journalists:
- Suspected theft of documents
- Handling of stolen goods
- Section 5 Official Secrets Act 1989
- Data protection breaches
On 8 November 2018 the Police Ombudsman for Northern Ireland, Michael Maguire, denied that his office had made a complaint of theft over the confidential documents. Michael Maguire told the Irish Times: "We did not make a complaint of theft."
The allegation of a data protection breach relates to revealing the whereabouts of Detective Albert Carroll in the film however his personal contact details were found in the French telephone book.
On 7 September 2018 the journalists’ legal representatives challenged the legality of search warrants at the High Court in Belfast. According to the Belfast Telegraph, Barry Macdonald QC said that police officers who searched the Belfast office on 31 August 2018 had retained material that was not within the scope of their investigation. "Police seized a vast quantity of journalistic material that has absolutely nothing to do with the investigation," Macdonald said, according to the Irish News. "This application gives rise to serious issues concerning freedom of the press and abuse of police powers which have been used to intimidate journalists and prohibit not only journalists but whistleblowers," – the retention of information by the police remains an unresolved and ongoing issue.
On 4 February 2019, Trevor Birney and Barry McCaffrey won permission to challenge the legality of the search warrants. The judicial review took place in May 2019.
Today's judgment is the full written version of the decision from the judicial review.
The NUJ ethic code's first obligation is "a journalist at all times upholds and defends the principle of media freedom, the right of freedom of expression and the right of the public to be informed". NUJ members, Trevor Birney and Barry McCaffrey, upheld this principle.