NI police unable to delete data seized unlawfully from journalists for 10 years

Data seized from homes and offices

Police raided the homes of both journalists and the offices of Fine Point Films in August 2018, a year after the release of their documentary No stone unturned, which exposed police failures to investigate the paramilitary murder of six innocent people watching a football match in a pub in Loughinisland, County Down.

They seized laptops, mobile phones and memory sticks, and copied the contents of the company server which contained the research files of multiple journalists and producers.

The material included sensitive notes and interviews on investigations into child abuse in the Catholic Church, gang members in Honduras and victims of atrocities in Columbia. According to Birney, less than 5% of the material seized related to No stone unturned.

“They knew what they were doing. They were sending a chill factor into not only our company and our relationships, but into Northern Ireland journalism and journalism in Belfast,” said Birney.

After a two-year legal battle, the High Court in Northern Ireland found in July this year that Durham Constabulary had obtained the search warrants unlawfully. The police had failed to share key information with the judge who granted the warrants and there was no justification for police to “interfere with the protection of journalistic sources”.

The chief constable of the PSNI Simon Byrne apologised for the unlawful raids of Birney and McCaffrey and the stress caused to their families.

“This is a data protection issue. It goes right to the heart of people’s personal data, and what police are lawfully allowed to hold on to and retrieve”

Following the judgment, the journalists learned that the PSNI had copied seized data to its computer systems and backup disks. Computer Weekly has learned that the PSNI also had copies of the data on backup tapes, which it said it could not delete for 10 years.

The need to protect that data, which holds highly sensitive journalistic material, has occupied the journalists for months. Barry McCaffrey said the issue goes much further than his own case and raises questions wider than the practice of journalism.

“This is a data protection issue,” he said. “It goes right to the heart of people’s personal data, and what police are lawfully allowed to hold on to and retrieve.”

Take, for example, the police’s routine downloading of mobile phone data from victims of rape. “Are they allowed to hold on to all the other data, all the text messages, all the emails that have absolutely no relevance to the investigation?” he said.

“When the law says information was taken unlawfully, it’s not acceptable to say, ‘We don’t know how to get rid of it’," he argued. “It’s not about journalists, it’s not about individuals – it’s about data protection, it’s about privacy.”

Journalistic principles

Birney and McCaffrey have paid a heavy price for upholding journalistic principles during their production of No stone unturned.

Their investigation began in early 2012 when the families of the six men murdered by the Ulster Volunteer Force approached Birney about making a documentary about their experience.

By the end of the year, Birney had brought US film producer Alex Gibney on board to work on the proposed film and had set up Fine Point Films.

Birney and his colleagues met with Stephen Martin, the assistant chief constable of the PSNI, to check whether there might be any risk in naming four suspects, including a police informant, in the film. Their identities had been in the public domain since 1995.

McCaffrey told Computer Weekly: “We want to make sure we are not putting people’s lives at risk. We are just journalists. If you have any concerns, will you tell us now. The police did not name any concerns. The one thing they asked us to do was not to name the informer and we did not,” he said.

The film production team arranged for the Police Ombudsman, Michael Maguire, to see a private screening of the film in October 2017.

Maguire realised that the team had access to extracts from his own secret investigation into PSNI’s investigation into the Loughinisland murders. The Ombudsman’s office shared its discovery with the PSNI.

No stone unturned received its UK premiere at the London Film Festival later that month to critical acclaim. As one newspaper reported, the investigation went a long way to bring the victims’ families a sense of closure.

Operation Yurta

Behind the scenes, the PSNI brought in Durham Constabulary to begin a leak investigation to find out how Fine Point Films had obtained material from a Police Ombudsman report marked “secret”.

The Operation Yurta investigation was led by Peter Darren Ellis, a recently retired detective superintendent. Its mission was to identify the source of the leaks and to recover what the police argued were stolen documents.

Ellis took exception to the film and pressed the PSNI to consider taking out an injunction to stop it being shown.

“The process appears unfair with a pseudo-type journalistic murder investigation intent on embarrassing the authorities.” he wrote in a policy book.

 “It is sensational documentary making which often leads the uneducated view to reach inaccurate conclusions.”

Lives at risk

In August 2018, Ellis submitted an application before a judge for a warrant to seize all the research material, including un-broadcast footage from No stone unturned.

The request was sweeping and included the seizure of all interviews and communications, computer equipment and mobile phones that could contain evidence about the leaked Police Ombudsman’s documents.

He told the judge that the naming of the suspects mentioned in the leaked report could directly threaten people’s lives and safety. And that the leaking of the Ombudsman’s report could lead to a loss of confidence in the wider justice system.

Ellis could have asked the judge to follow the normal procedure of serving a production order under the Police and Criminal Evidence Act (PACE). That would have legally obliged the journalists and their employer to hand over all relevant information. Instead, he asked for an ex-parte search order to make sure the journalists did not attempt to hide any information from the police.

His reasoning was that seven years earlier, Barry McCaffrey had published an article containing a leaked report that raised concerns about the lack of independence between the Police Ombudsman of Northern Ireland and the PSNI.

When the Metropolitan Police had written to McCaffrey asking how he came by the document, McCaffrey refused to disclose the identity of a source and declined to cooperate. The police argued his refusal to cooperate justified an unannounced search.

Police raids

Birney woke up to a commotion outside his home on 31 August 2018. There were cars and police everywhere. His wife ran downstairs and opened the door, to be met with officers “armed to the teeth” in forensic boiler-suits.

“I instinctively realised this had something to do with Loughinisland,” he said recounting the events of the day.

A plainclothes detective told Birney that he was about to be arrested and to hand over his phone. “I was led away, put in the back of a police car and driven several miles into the centre of Belfast, to the terrorist suite of the police station,” said Birney.

In the car, he questioned the police officers about why they were arresting a journalist when the six men who had committed the murders 24 years earlier were still free: “Are you going to arrest the chief suspect of the Loughinisland massacre today? Is that what you’re doing? Or is it just me?”

Back at his home, 11 police officers and two support officers were on the scene, including six searchers from the PSNI’s Tactical Support Group (TSG), a cyber-crime expert, two serious crime officers and an independent counsel tasked with reviewing material that might be subject to legal privilege.

They seized Birney’s phone and laptop, his wife’s phone, a small pink iPhone belonging to his 16-year-old daughter and a memory stick in the shape of a lollipop containing her homework. Officers found a Nikon camera and took out the battery – perhaps thinking it was a memory card.

Meanwhile, 11 police officers turned up at McCaffrey’s house, including four TSG officers, and took him in for questioning.

While Birney and McCaffrey were being held in the cells, more police descended on the company offices in the centre of Belfast. The officers appeared surprised at the size of the operation: 4,000ft², some 40 desks, two meeting rooms, two film editing suites, a kitchen and an IT room where the server, cameras and other expensive equipment were stored.

According to Durham Police, search teams were briefed in the "clearest of terms that they were simply not to examine any materials not of relevance" to the investigation into No stone unturned

The police trawled the office for documents, notebooks and computer equipment. “They were clearly lifting random computers from desks,” says Birney, who later learned what had happened.

The police did not limit their evidence gathering to No stone unturned, he said. They took material relating to other investigations, including sensitive material related to a high-profile child abuse case in Northern Ireland.

An officer who did not speak Irish went through the desks of the Irish language team which employed 10 journalists and producers, gathering evidence “in a language they did not understand”.

The officers initially asked a senior manager if they could remove the company’s server from the building, but when the answer came back no, they opted to copy its contents.

By late afternoon, Birney said his lawyers had managed to obtain an interim injunction to put a halt to further searches and to require the police to put the evidence gathered so far in sealed bags under the custody of a single officer.

Cyber-crime officers continued downloading the contents of the server, which according to Birney had 10TB of memory. By the time they left the building, it was 9pm. The whole operation had taken 14 hours.

By taking the server, the police did not limit their evidence gathering to No Stone Unturned, said Birney. They took material relating to other investigations, including sensitive material related to a high-profile child abuse case in Northern Ireland.

Less than 5% of the data on the server related to No stone unturned, said Birney. The rest was made up of films in production in South America, all the journalists, producers and researchers’ files, and years’ worth of financial records.

Highly sensitive information held on computer server

For Birney, it was devastating. The police seized information from sources and contacts he had built up over a career of 30 years.

“I can tell you the documentation that I had on there was some of the most sensitive documentation I had in my possession,” he said. “We believed the server was a very safe place. We had sensitive documents in other locations but our server was the beating heart of the operation. You never know when a lawyer or a co-producer is going to ask for access to a document and it needs to be readily available.”

The material seized included unedited footage of self-confessed killers in Honduras, whose identities film producers had promised to protect. And interviews with families of the victims of atrocities in Columbia.

Separately, Durham Police trawled through material from the Police Ombudsman’s computers and interviewed six members of staff in a failed attempt to find the source of the leak.

Legal battle

Birney’s company, Fine Point Films, and McCaffery instructed their lawyers to seek the return of the seized material. They argued that the police had obtained search warrants unlawfully.

Durham Police had launched the investigation into the theft of documents from the Police Ombudsman of Northern Ireland.

But during the judicial review at the High Court of Justice in Belfast, in July 2020, the court heard that the Ombudsman had made no formal complaint to the police nor had suggested that any damage had occurred though the leaked information - a fact that became public two years earlier.

Ellis had relied on a statement from a detective superintendent with the PSNI that the naming of the suspects could directly threaten an individual’s life or safety and that the loss of the information could undermine confidence in the wider justice system.

Durham Police neglected to tell the judge during their application for search warrants that the journalists had already met with the PSNI in April 2017 and had raised the question of whether there was any possible risk to the suspects.

“We told the police, listen we are doing this documentary,” said McCaffrey. “And we are going to name these three suspects who we believe are the killers, but we want to tell you because we want to make sure we are not putting people’s lives at risk. We are just journalists. If you have any concerns, will you let tell us know?”

The PSNI did not ask them to withhold the names, which had been in the public domain since 1995.

The High Court judges found other shortcomings in the application for search warrants.

For example, the judge had not been told that the search involved journalistic material that was protected by Article 10 of the European Convention of Human Rights, and that a search warrant could only be justified by an overwhelming public interest.

And police lawyers had not informed the judge that if they applied for a production order, rather than a search warrant, under PACE the journalists would have been legally prevented from destroying or disposing of any relevant material.

The judges found that police lawyers had failed to make it clear that any warrant issued should only relate to the paper documents that police believed had been stolen.

“It could not possibly include the taking of electronic and other digital material. That should have been made absolutely clear to the trial judge and the failure to do so is inexplicable,” the court found.

Fine Point Films obtained an injunction against the police accessing any of the material on the server. Yet Durham Police had reviewed multiple emails and WhatsApp messages from computers and phones seized during the raids.

Birney says there never were, contrary to police allegations, stolen documents. The documentary itself reports that the material was sent to McCaffrey in the post.

Journalists vindicated by court

In July 2020, the court ruled in the journalists’ favour. Three judges ruled that the conduct during the police’s warrant application fell “woefully short” of the standard needed for a fair hearing.

The judgment reported: “We see no overriding requirement in the public interest which could have justified interference with the protection of journalistic sources in this case.”

The chief constable of the PSNI Simon Byrne gave an unreserved apology for the upset and distress caused to Birney and McCaffrey by the execution of the search warrants.

“I fully accept the ruling of the Lord Chief Justice that the search warrants were unlawful,” he said.

Damaging effects of police raid

Nevertheless, the raid was damaging for both McCaffery and Birney professionally, but on a bigger scale for journalism in Northern Ireland, says Birney.

“The police knew what they were doing. They came into the company with a wrecking ball. They knew the consequences of that for our journalism and our company was going to be catastrophic. And it was, on all sorts of levels,” said Birney.

Birney and his colleagues had been working with contacts with the “highest level of security clearance” who were willing to offer guidance and information.

After the raid, Birney and McCaffrey found that people who had been willing to share information in the past were more reticent.

“You trade on your trust. You trade on your integrity, and if for any reason that has been called into question, that is irreparable,” said Birney.

The raids have also had a serious financial impact on Fine Point Films, which has lost commissions in the wake of the police investigation.

The legal costs, had the judgment gone the other way, could have put the company in jeopardy. “I was looking at potential financial ruin,” said Birney.

The damage to journalism in Northern Ireland may be longer lasting.

“The chill factor is going to be there for many years to come because editors and journalists in positions of responsibility are going to have to warn journalists that these are the potential consequences for investigating collusion in Northern Ireland,” he says. “You can’t avoid that.”

Update 27 November 2020: This article has been updated to include further details of the settlement between PSNI and Durham Police, journalists Barry McCaffrey and Trevor Birney and Fine Point Films.