Lawyers and journalists seeking ‘payback’ over police phone surveillance, claims former detective

Dangerous language

Ben Jaffey KC, representing McCaffrey and Birney, told the tribunal that the language used by Ellis in the email was dangerous in the context of the history of Northern Ireland, and accused “journalists and lawyers of payback”. “Those words do create pause because this case is about journalists and lawyers doing their jobs. But Ellis says that no one is holding them to account,” he told the court. “That sort of language is dangerous.”

He said Ellis regarded himself as a victim, not the arresting officer in the case. He had a deep sense of “grievance and animus” against investigative journalism and lawyers.

Jaffey said that Ellis had failed to answer the difficult questions and that he should now be ordered, if necessary, to attend the tribunal to give evidence and be cross-examined.

He told the court that the PSNI maintains it used surveillance powers in good faith. “We do not accept that,” he said.

In a further development, written submissions filed in court revealed that a third police force, which was not named in open court, carried out extensive analysis of communications between journalists, at “large scale” over “substantial periods”.

The information gathered included cell-site data giving the location of journalist’s mobile phones.

Police also analysed the contents of emails and other police records relating to journalists. “There is no evidence that any consideration was ever given to whether statutory procedures should have been adopted to obtain such material, given that the purpose of these arrangements was to identify journalistic sources,” wrote Jaffey.

Sources’ lives at risk

Brenda Campbell KC, representing the NUJ, said the case raises wider issues of public importance.

She said state surveillance impacts the ability of all journalists to do their job, particularly when it involves investigating or criticising the state.

If journalists’ sources can be identified, it impacts on the safety of sources, up to and including threats to life when journalists are reporting on paramilitary activities or organised crime, she told the court, adding that the PSNI exerting pressure on journalists to reveal their confidential sources was nothing new, but the ability to access journalists’ sources by monitoring their phone calls surreptitiously was a new development.

The PSNI’s position was that there was an application for communications data that was made erroneously through developing case law, but the NUJ was “concerned there was something more substantial at stake”.

Campbell said that even if the NUJ’s concerns were misplaced and the PSNI was acting in good faith, that was not a complete answer. “We are in an arena where errors should not take place, because journalists’ lives are at stake,” she told the tribunal.

Application declined

The court declined an application to join a complaint over police surveillance brought by BBC journalist Vincent Kearney, who is represented by lawyers instructed by the BBC, to Birney and McCaffrey’s IPT hearing scheduled in October.

The court heard that although the cases were related, a number of “non-core” respondents in the case – MI5, GCHQ, the Home Office, and the Foreign and Commonwealth Development office – would need until December to complete searches of their records against the names of 16 BBC journalists who were allegedly placed under surveillance.

Justice Singh, president of the IPT, said that while the cases of the BBC and Vincent Kearney must be dealt with as quickly as possible, “we are not, however, ready to proceed against non-core respondents”.

His decision followed a more than two hour hearing in which security-cleared lawyers for MI5, GCHQ and others presented legal arguments to the tribunal. Lawyers for the BBC and Birney and McCaffrey were excluded from the hearing.

The tribunal also agreed to ask Ellis to attend the court to give evidence, but Jaffey confirmed he could seek a court order to compel Ellis to give evidence if he did not agree voluntarily.

A BBC spokesperson said: “The President of the Investigatory Powers Tribunal has said that claims by the BBC and Vincent Kearney will be heard separately and at a later date."

"We welcome these comments – reflecting our view that serious issues of public interest are engaged, including in relation to the adverse effects that surveillance may have on BBC journalism and its freedoms and journalistic activity more generally.”

The case continues in October.