PSNI admits unlawfully monitoring phones

The Police Service of Northern Ireland also conceded it acted unlawfully by issuing authorisations to obtain Kearney’s communications data on multiple occasions.

This included four authorisations relating to an investigation into the murder of PC Stephen Caroll in 2009, and multiple operations linked to Operation Erewhon – an investigation into alleged leaks from the Office of the Police Ombudsman in Northern Ireland – in 2012.

The PSNI also admitted to unlawfully obtaining Kearney’s phone data when the Metropolitan Police provided copies of data from Operation Erewhon to Durham Police.

It did so as part of an investigation, Operation Yurta, into alleged leaks from the Police Ombudsman in 2018 to journalists Barry McCaffrey and Trevor Birney, who exposed police collusion with a paramilitary group.

The PSNI made two further authorisations for Kearney’s phone data as part of Operation Samarium, an anti-corruption investigation, and four further authorisations relating to Operation Basanti, which investigated alleged leaks to Kearney.

Consistent failures by police

Bunting told the IPT that the admissions demonstrated there had been a “consistent failure by police to have a proper regard for the fundamental rights of freedom of expression and the essential role which journalists play in a democratic society” when seeking access to journalists’ communications data.

The court heard that MI5’s belated concession that it had unlawfully monitored Kearney’s phone communications, which was disclosed in a letter from the government legal department, would disrupt court hearings already scheduled.

“They must have known they would torpedo any chance of a hearing being heard in November,” Bunting told the court.

MI5 said it had obtained data from Kearney under the Regulation of Investigatory Powers Act – which preceded the Investigatory Powers Act – and that at that stage, the code of practice did not require a stricter test to access journalistic material.

MI5 said Kearney’s communications data was obtained in connection with material that related to national security information, the court heard.

Bunting said there had been serious and sustained illegality by the PSNI and other police forces in accessing journalists’ communications. “Now we see serious and sustained illegality on behalf of MI5,” he said.

The court heard that there was a “thematic overlap” between the PSNI and MI5, showing the same kind of behaviour and the same failure to have regard to Kearney’s journalistic status.

Bunting said the tribunal should consider additional ways that MI5 has interfered with journalists’ data it provided to the PSNI, which had not been disclosed in open court. “There may be disclosure concerns,” he said.

MI5 NCND policy may be challenged

He said that MI5 and other “non-core” participants had litigated the proceedings on the familiar principles of “neither confirm nor deny” (NCND).

“Here, we see MI5 publicly confirm it obtained data from Kearney and publicly confirm it obtained the data unlawfully,” Bunting told the court.

He said that had implications for other material from MI5 presented in closed hearings. The court was told in written submissions that there may be challenges to MI5’s NCND stance.

The Metropolitan Police Service (MPS) also conceded that it breached Kearney’s legal rights, by obtaining his communications data twice in 2012 and by storing it and providing the data to the PSNI in 2018.

Durham Police conceded that its officers sought, obtained, reviewed and used material supplied by the MPS as part of Operation Yurta, but argued that it did so on behalf of the PSNI. The PSNI has accepted liability for the MPS’s actions.

A barrister for MI5 said the security service did not accept that the timing of MI5’s concession that Kearney’s phone had been unlawfully monitored “is inappropriate or unreasonable”, but said it was not able to say more in open court.

Former BBC journalist Chris Moore is bringing a separate case against the PSNI and MI5. The IPT will make a decision whether the case should be joined to the case brought by Kearney and the BBC at a later date.

MI5 trampled right to protect sources

A BBC Spokesperson said: “MI5’s admission that it illegally obtained communications data of a BBC journalist is a matter of grave concern. It raises serious and important questions that we will continue to pursue.”

Vincent Kearney said that the admission by the security service MI5 that it unlawfully obtained data about his mobile phone communications was deeply concerning.

“I am keen to establish as much detail as possible about the nature of these two instances of unlawful intrusion, and whether MI5 illegally gathered information about my mobile phone communications on other occasions,” he said.

“These issues will be the subject of further legal enquiries by the BBC’s legal team,” he added.    

Speaking after the hearing, Patrick Corrigan, Amnesty International’s Northern Ireland director, said the case was important for media freedom and the right of journalists to protect their sources.

“The disclosure that MI5 has twice trampled human rights law by unlawfully prying into the phone records of a journalist in Northern Ireland is profoundly alarming,” he said.

“A journalist’s right to protect their sources is not a luxury, it is the bedrock of a free and fearless press. This is not just about one journalist, it is about the public’s right to know the truth,” Corrigan added.