The issuing of warrants used to arrest two Belfast journalists last year was “inappropriate,” the most senior judge in Northern Ireland has found.
Lord chief justice Sir Declan Morgan, along with two other high court judges, on Wednesday concluded a judicial review into the arrest of Trevor Birney and Barry McCaffrey by the police last August, stating, "we are minded to quash the warrants on the basis that they were inappropriate, whatever the other arguments". He ordered a further hearing on Friday to determine outstanding issues including costs.
The chief justice said the work of journalists was necessary in holding the state to account, “particularly in a society like ours where confidence in the institutions is so important”.
Durham Constabulary, brought in by the PSNI, has yet to indicate whether or not it will proceed with its attempt to prosecute the journalists, who remain on police bail.
Birney said after the hearing that police should now drop the case. “George Hamilton [the outgoing Chief Constable] should do the right thing and end his career by ending this scandalous investigation now.”
During the hearing it emerged that Darren Ellis, the retired officer from Durham who led the investigation, did not appear to have a high opinion of journalism.
On Wednesday, Barry MacDonald, QC, who represented McCaffrey, said the motivation for the arrests could be found in Ellis’s attitude. He said that earlier this year after McCaffrey and Birney held a meeting with Grahame Morris, a Labour MP in Durham, to discuss their case, Morris received a call from someone “purporting to be Darren Ellis”. The caller was “foul and abusive” to his staff and had “ranted” about the MP having met “terrorists” and “criminals”, MacDonald said.
Peter Coll QC, acting for the police, asked the court to allow Ellis to respond but that point in proceedings the chief justice called an adjournment - and the judges returned shortly afterwards with their decision.
The court also heard that Ellis had noted he “had concerns that the obvious networks between the suspects, politicians, the legal community and the journalistic/media representatives may be complex, challenging and obstructive and thus threaten justice”.
Coll on Wednesday accepted there was no evidence that the journalists were “of bad character.” They were, he conceded, “serious journalists conducting serious work”.
The journalists were the producer and reporter respectively on Alex Gibney’s award winning documentary film, No Stone Unturned, about the 1994 Loughinisland massacre by loyalist paramilitaries of six men in a Co Down pub. No one has been prosecuted for the murders.
A report by the police ombudsman for Northern Ireland, Michael Maguire, found “catastrophic failings” and evidence of collusion with the killers in the police investigation. The documentary made use of this report and of a document which appeared to have emanated from ombudsman’s office but was supplied anonymously to McCaffrey by a whistleblower.
The judicial review hinged on the decision by the police to seek permission to raid the homes and offices of the journalists in pursuit of the document, which was shown in the film, and information on its source.
Coll denied that the police wished to “stymie and stifle freedom of expression”. The purpose of the investigation was, he said, “to deal with criminality.” He said police had, since the arrests and raids, found evidence which was “something to do with a mindset”.
The chief justice intervened, saying: “The mindset of protecting sources is a correct one.” He also said that journalists who were not subject to a production order “are entitled to destroy material to protect sources”.
The judge made repeated reference to the legal protections which the UK affords to investigative journalists in relation to anonymous whistleblowers acting in the public interest, and to the obligation of journalists to abide by the National Union of Journalists (NUJ) code of conduct which instructs them to protect the confidentiality of sources.
Gavin Millar QC, who represented Birney, said the journalists had behaved responsibly. They had received over 60 pages of information and they had considered whether they should put it in the public domain.
“They did not do what Julian Assange did and put all online. They curated it,” he said.
Outside the court, McCaffrey said he was relieved, albeit disturbed by what had been revealed about the attitudes of the police.
“Why did they go to suspects and ask them about journalists, instead of asking them about the killings of Barney Green, Dan McCreanor, Adrian Rogan, Eamon Byrne, Malcolm Jenkinson and Patsy O’Hare?” he asked.
Members of the families of the men who died at Loughinisland were in court for the two day hearing to support the journalists. “We are delighted and just relieved. They are the only ones who have supported us,” said Emma Rogan, whose father was one of those killed. “We are just glad that the judges have shown sense.”
Seamus Dooley of the NUJ said, "Two independent and brave minded journalists have been vindicated. This was a waste of police time and public resources. The focus must now be on the revelations in No Stone Unturned and not on those who shone a light into the darkest corners."
Patrick Corrigan, director of Amnesty in the North said it was "a good news day for press freedom in Northern Ireland and across the UK".