The Weekly Constitutional is an exploration of a law and policy issues with reference to legal and other formal texts. This week’s texts are this 2020 judgment of the Northern Irish High Court and this 2024 judgment of the Investigatory Powers Tribunal.
On 18th June 1994 six men were killed, shot in the back at the Heights Bar in Loughinisland in County Down while they watched a World Cup football match on the television. Five other people were injured. It was a sectarian attack: the murdered were Catholics, and the murderers were from the loyalist Ulster Volunteer Force. None of the dead had any connection with republican terrorism or the security services: they were just in a pub watching a game of football.
After the families of the murdered men complained about the lack of police action, and because they suspected collusion between the police and the gunmen, there was a desultory report in 2009 by the Northern Irish Police Ombudsman, which was quashed by the court in 2012 because of its inadequacy. There were still no charges, let alone convictions.
A second Ombudsman report was published in 2016, which expressly stated that there had been collusion. But still there were no prosecutions.
Then, in 2017, there was a well-received documentary film, No Stone Unturned, about the murders and the failures of the police investigations. As one judge has said, the film was “a serious investigative documentary addressing a matter of obvious public interest and concern”. It named the alleged gunmen and detailed the collusion between the police and the terrorists. Neither the Ombudsman nor any other public entity sought to block the film’s release.
And then, on 31st August 2018, there were sudden and dramatic arrests. But the arrests were not of the alleged gunmen, but of the two key journalists who had worked on the documentary. Barry McCaffrey and Trevor Birney were arrested on “suspicion of theft” and “a breach of the Official Secrets Act”.
A search warrant had been granted by a single judge following an application made by the police in a one-sided “ex parte” hearing. The police said that the journalists were in wrongful possession of material leaked from the Ombudsman’s office.
The nature of the hearing can be seen in this description from a later judgment:
“The judge intervened to describe this as a serious, serious breach of either theft or dissemination of material that was secret within an investigation which effectively outweighed in terms of proportionality the freedom to investigate. The judge suggested that Article 2 [Right to Life] weighed heavily and Mr Robinson [the police barrister] agreed. The judge suggested that without access to the material the applicant’s case could go no further and Mr Robinson again agreed. The judge indicated that he did not believe that he was required to give a reasoned ruling. Mr Robinson agreed. The judge expressed himself satisfied that it was proper and proportionate and necessary for him to grant the warrant sought in the application.”
McCaffrey and Birney were released without charge and made a successful emergency application to the court to stop the state from using the journalistic material it had seized from them.
The high court in Northern Ireland was to quash the warrant in 2020, saying “that the conduct of this hearing fell woefully short of the standard required to ensure that the hearing was fair”. This is a strong criticism of a serving judge by a reviewing court: not just falling short of the relevant standard but “woefully short”.
The high court also said that although “there was some acknowledgement of the importance of journalists in a democratic society in the course of the hearing the judge was not advised that Article 10 Convention rights were engaged, nor was he provided with any of the relevant jurisprudence nor was it made clear to him that a warrant such as this sought could only be justified by an overriding requirement in the public interest. This issue was absolutely fundamental to whether or not a warrant should be issued and the failure to address it means that we can have no confidence that the trial judge applied the right test.”
And the high court observed in its conclusion, “We wish to make it clear, however, that on the basis of the material that has been provided to us we see no overriding requirement in the public interest which could have justified an interference with the protection of journalistic sources in this case.”
Following this judgment, McCaffrey and Birney brought new proceedings before the Investigatory Powers Tribunal because they believed—correctly—that the 2018 warrant was not the only attempt made to identify their sources.
And indeed, it turned out that both the Metropolitan Police and the Police Service of Northern Ireland had granted authorisations to obtain the communications data of McCaffrey. The Northern Irish authorisation was made after he contacted the police press office in 2013 for comment on a forthcoming piece.
At the tribunal, the Metropolitan Police and Police Service of Northern Ireland did not even attempt to justify the authorisations. They both readily conceded the authorisations were unlawful and should be quashed and the data returned. Both entities accepted fully that they had acted unlawfully in obtaining the data of McCaffery. In December 2024 the tribunal quashed the authorisation, and the journalists were awarded £4,000 each in damages.
One way of looking at the above is to say this is an example of a system working, in that the errors of the judge in granting the warrant and the relevant police officers in providing the authorisations were quashed by independent judges who emphasised the importance of freedom of expression and the importance of investigatory journalism.
But that would be complacent. There was no inevitability that the journalists would have been able to make the application to halt the original seizures. And there was certainly no inevitability in them pursuing the matter before the investigatory tribunal.
This is instead an example of a system not working. Despite the statutory safeguards for journalists in the relevant legislation, the police and the judge just shrugged. And when the earlier unlawful authorisations were uncovered, the police just shrugged again and conceded their unlawfulness immediately. It almost seems to be a casual cost of doing business for them.
Stepping back, the focused zeal with which the UK state has pursued the journalists who exposed and detailed the collusion contrasts with the failure to pursue those who murdered six people at the Heights Bar in 1994. The impression is that for the UK state certain matters are far more important than others.
Barry McCaffrey and Trevor Birney are interviewed by Alan Rusbridger and Lionel Barber for the Media Confidential podcast here.
