The Police Service of Northern Ireland (PSNI) created a detailed “intelligence profile” of a former BBC journalist containing personal information about him and his family, a court heard today.
Vincent Kearney, now Northern Ireland editor of RTE, is seeking substantial damages following a sustained unlawful surveillance campaign against him to identify his confidential journalistic sources.
The Investigatory Powers Tribunal (IPT) heard today that there had been seven police or MI5 operations to unlawfully obtain the BBC’s and Kearney’s confidential communications data between 2006 and 2014.
The BBC and Kearney are bringing a legal challenge against the PSNI, Durham Constabulary, the Metropolitan Police Service and the UK government, alleging that police and the Security Service unlawfully spied on the phones of BBC journalists working in Northern Ireland.
The court heard that Kearney, who worked for the BBC Northern Ireland Spotlight programme, was subject to a “systematic and years-long pattern” to access his journalistic sources and map his professional activity between 2006 and 2014 by monitoring his phone communications data.
PSNI created intelligence profile
The PSNI created an “intelligence profile” of Kearney, which included his date of birth, home and work addresses, phone numbers, vehicle registration, and the names of his wife and mother-in-law and people living with him, the court heard.
Jude Bunting KC, representing Bunting and Kearney, told the court that the PSNI and MI5 had made multiple applications to obtain Kearney’s phone data to identify confidential sources who had supplied him with information in his role as a journalist.
He said the applications were made without considering the public interest in journalism and the right of journalists to protect their confidential sources, and were disproportionate in law.
The court heard that MI5 made at least four applications for phone data from Kearney and the BBC under the Regulation of Investigatory Powers Act in 2006, including Kearney’s phone calls and the details of people who had phoned him, in an attempt to identify his confidential sources.
In 2009, MI5 applied for data about Kearney’s incoming and outgoing communications. There was no consideration given to the proportionality of the application, and the interference with fundamental journalistic rights and the public interest in the role of the press. The clear focus was the expected “intelligence dividend”.
PSNI collected ‘geographic data’
Bunting told the court that the PSNI made four applications for Kearney’s and the BBC’s phone data following the murder of PC Stephen Carroll in March 2009.
Kearney received a phone call from a person claiming responsibility for the murder by the Continuity IRA, which he reported to the PSNI and the assistant chief constable, but declined to give a witness statement.
Bunting told the court that the PSNI obtained Kearney’s communication data, but the application falsely claimed that Kearney had not reported the phone call directly to the PSNI. “Not only is this information being sought for journalist material, but it is also being sought on a false basis,” he said.
In 2012 the PSNI commissioned the Metropolitan Police Service (MPS) to investigate Kearney, following a BBC Spotlight programme. The programme examined allegations that the Police Ombudsman of Northern Ireland had failed to properly investigate collusion between the police and paramilitary groups.
“It was so important it led to the Ombudsman bringing forward his own intended resignation,” Bunting told the court.
The MPS collected nearly 200 pages of communications data, representing over 3,000 calls Kearney had made over three and a half months, in an attempt to identify his confidential sources. It also obtained “substantial geographic data” about Kearney.
Kearney labeled as ‘criminal suspect’
Bunting said that the PSNI had wrongly labelled Kearney as a “suspect in a criminal investigation” after the journalist asked questions about allegations that corrupt payments were made to a senior member of PSNI’s management.
The court heard that the PSNI responded to Kearney’s enquiries by making two unlawful applications for Kearney’s incoming and outgoing call data.
“Kearney was a journalist, he was not a suspect,” Bunting told the tribunal. “His contacts were not criminals. This is a clear steer how PSNI treats journalists,” he said.
In 2014, the PSNI obtained communications data from an individual suspected of leaking “sensitive police information” to Kearney.
The PSNI had made no attempt to question police staff to see whether they were the source of a leak before applying for Kearney’s phone records.
PSNI claims ‘hyperbolic’
Bunting said that the PSNI had argued that the disclosures could pose a risk to lives in the worst case scenario, but that was “hyperbolic”. He said it was more about public relations and embarrassment.
In Operation Yurta, the PSNI commissioned Durham Police to investigate allegations of leaks to journalists Barry McCaffrey and Trevor Birney after a 1984 documentary which exposed police collusion in paramilitary murders in Loughinisland.
Durham Police obtained the BBC and Kearney’s communications data originally obtained unlawfully by the MPS. There was no lawful basis for Durham to retain copies of the data, the tribunal was told.
In Operation Settat in 2011 the PSNI compared calls made by PSNI staff and records of police mobile data against a database which included the names of more than 20 BBC journalists from Northern Ireland and Great Britain.
Phone data applications ‘not proportionate’
Bunting told the court there were seven different occasions where multiple applications for phone data were made. In each case the application was not in accordance with the law or proportional.
There must be significant amounts of other material that had not been disclosed in open court, he added.
Richard O’Brien KC, representing MI5, said that it was not the case that MI5 and police had subjected Kearney to a long and sustained campaign of surveillance.
He said that the codes of practice in 2006 and 2009 did not set out requirements for safeguarding confidential journalistic data and that MI5 had made applications for phone data in good faith.
The applications were made to investigate individuals suspected of making unauthorised disclosures where they had the potential to impact national security.
Cathryn McGahey KC, representing the PSNI said that the PSNI had accepted the unlawfulness of what had occurred.
“These applications do not give any indication of a campaign against a journalist,” she said. “They are reasoned applications”.
She agreed that the description of Kearney as a criminal suspect was “an incorrect term”.
PSNI and MI5 have made no apology
Bunting said that MI5’s defence was not that the leaks had impacted national security, but that they had the potential to do so.
“This is not actually a case in which there has been an apology,” he added. “This is a case where there has been a limited admission from PSNI and an even more limited admission from MI5.”
He said that Kearney only found out about the use of his phone data by accident following the efforts of journalists Barry McCaffrey and Trevor Birney.
“This was covert activity hidden from Kearney for many years It has come to light only grudgingly,” he said.
“There is no evidence to suggest that lessons have been learned by PSNI to very significant interference with Kearney’s data,” he added.
Kearney received death threats
He told the court that Kearney had said his experience would have been career ending for less experienced journalists.
Senior sources had told him they would no longer speak to him and that he had been called an “MI5 tout” which in Northern Ireland can pose a serious risk of harm. “He has received threats related to his public interest reporting.”
Kearny has been repeatedly treated as a suspect, that is why they created a profile of him. That is why MI5 created a file on him,” he said.
Speaking before today’s hearing, Kearney said that unlawful state surveillance revealed by the IPT amounted to not just an attack on him, but an attack on public interest journalism.
“This process has confirmed that I was the target of a long and consistent campaign of unlawful interference with my confidential journalistic material by the PSNI, MI5 and other public authorities while working for BBC Northern Ireland,” he said.
“The extent of the admitted illegal monitoring of my communications data over a period of many years in an attempt to identify sources was shocking and stark, and it’s likely there was more than has been publicly conceded. This conceded illegality has had a real and significant impact and has had a chilling effect on my ability to carry out public interest journalism. Former colleagues in the BBC have also suffered damage to source relationships.”
Kearney is seeking damages of over £10,000.
The case continues