Detective reported journalist’s lawyers to regulator in ‘unlawful’ PSNI surveillance case

Criminal activity

Durham police and the PSNI arrested Birney and McCaffrey and raided their homes and the offices of their film company in August 2018, seizing phones and computer equipment and copying the company’s server.

Ellis confirmed that he had put in a directed surveillance application to monitor a “third-party” official at the Police Ombudsman of Northern Ireland (PONI), who he suspected may have leaked documents to the journalists.

The court heard that the police intended to establish whether McCaffrey and Birney met with the suspected official after they were released.

According to the direct surveillance application, police investigators intended to record any conversation between the two journalists and the PONI suspect if they met, and to intervene if any documents were handed over.

Ellis denied that his objective was to arrest Birney and McCaffrey and to see whether that led them to contact their source.

“You use the word source, I would use the terminology ‘someone who was suspected of committing a criminal activity’,” he said.

He told the court: “This was a significant event, let’s not underestimate that. If that third party was going to do something different to something they would normally do, that was the day they were going to do it.”

Misleading and sensationalist

The court heard that Ellis had recorded in his policy book that the film No stone unturned contained misleading and sensationalist reporting and described it as a pseudo-journalistic murder investigation.

Ellis repeatedly told the court that his sole concern was that secret information had ended up in a film. “Investigative journalism has a place in society… all I asked people to do was to stick to the law,” he said.

Under cross-examination, he said he did not know whether there was anything misleading about the film. “My work was about identifying and recovering secret documents. I am sorry if I come across as defensive,” he said.

Ellis told the court: “I don’t want the tribunal to think, with all due respect, that this was a top-heavy PSNI investigation. It was not,” he said.

He denied that the police investigation was about embarrassment to the authorities. “My role is to search ethically … proportionally for the truth. I have not even set foot in Northern Ireland before this. I didn’t even want to do it,” he said.

Detective ‘let down’ by Durham police

Ellis said the failure of Durham Constabulary to provide him with legal advice had left him feeling “let down” by law enforcement. He went on, “I felt alone, bewildered”, and “didn’t have anyone to turn to”.

“I’m a passionate guy, I try and search for the truth,” said Ellis.

Birney and McCaffrey are bringing the case against the PSNI, Durham Constabulary, GCHQ and MI5.

Following their arrest in 2018, the journalists were exonerated by the former lord chief justice of Northern Ireland, Declan Morgan, in a judicial review in 2019, when he ruled that Durham Constabulary and the PSNI unlawfully used search warrants in an attempt to identify Birney and McCaffrey’s sources.

The case raises wider questions about the extent to which police and intelligence agencies continue to monitor journalists’ phone and email communications, despite the introduction of greater legal protections for journalists and their sources in 2016.

Speaking outside court, McCaffrey said he had been waiting five years for the hearing. “We hope that what has happened to us and happened to other journalists – hundreds of other journalists – is finally going to be made public. Because this case isn’t about Trevor and myself, it’s about those hundreds of journalists that were spied on in an industrial way by the PSNI, Metropolitan Police, Durham police and MI5,” he said.

The case continues.