PSNI appoints legal counsel to report on police conduct after McCullough surveillance review
The Police Service of Northern Ireland has commissioned a senior lawyer to report back on whether there was any misconduct by police officers following the McCullough Review into the surveillance of journalists, lawyers and NGOs
The Police Service of Northern Ireland (PSNI) has commissioned a senior lawyer to review whether there was any misconduct by police officers following an independent review that found police unlawfully monitored journalists’ phone data, but found no “widespread and systemic” surveillance.
Jon Boutcher, chief constable of the PSNI, told the Northern Ireland Policing Board that he had appointed an “eminent” legal counsel, John Beggs KC, to review a 200-page report on PSNI surveillance and report back to confirm there was no misconduct or wrongdoing by police officers.
Beggs, a specialist in police misconduct cases, represented the police commanders at the 2016 Hillsborough inquests, and is the co-author of Police misconduct, complaints, and public regulation.
Separately, the police force has referred itself to the Information Commissioner’s Office (ICO) to investigate whether a “defensive operation” by the PSNI to gather journalists’ phone numbers and compare them with internal phone records to identify PSNI staff who may have passed information to journalists was lawful.
Boutcher was speaking following the publication of a 200-page review by Angus McCullough KC, which found that the PSNI had made data applications to identify journalists’ confidential sources, collated a secret register of more than 1,000 journalists’ phone numbers, and identified four cases where the PSNI had used “directed surveillance” for investigations involving journalists and one involving a lawyer.
Sinn Féin representative Gerry Kelly pressed the chief constable on whether he stood by his public statement that the McCullough Review had revealed no issues of misconduct, criminality, or unlawfulness.
Kelly said there were “unlawful retentions” of two journalists’ data, despite clear court orders that the data should be destroyed, 21 cases of the unlawful use of covert powers to identify journalists’ sources, and a “washing through” operation to identify PSNI employees who had phone contact with journalists that was likely in breach of human rights laws.
“I just think for you to come in and to say that there’s no issue here, I just find it hard,” he told Boutcher.
Code of practice had no public interest test
Boutcher said the Investigatory Powers Tribunal found that the PSNI had acted unlawfully in 2013 by obtaining the phone data of journalist Barry McCaffrey, but had found that PSNI officers had acted in good faith.
This was because the 2007 codes of practice followed by the police “were not fit for purpose” and were changed in 2015 to introduce a public interest test, said Boutcher.
“Proper consideration wasn’t given in the application process around things that weren’t required by the code, but should have been,” he said.
Boutcher said he had asked the ICO to assess the legality of the “washing through” operation.
The PSNI’s professional standards department had stopped the practice in March 2023, and Boutcher had issued a formal notice to discontinue the practice in May 2024, the Policing Board heard.
Boutcher said police should be able to investigate whether staff breached the PSNI’s code of ethics by releasing information to journalists, but investigations should be based on a “specific and precise concern”.
“In all the time that I’ve been a senior investigating officer and dealt with some really complex organised crime operations, I don’t think I’ve ever required comms data for a solicitor or a journalist,” he said. “I don’t understand why the washing through was done, and it’s not going to happen anymore. It stopped,” he added.
He told the Policing Board that the lists of journalists used in the “washing through” operation were inaccessible and would be destroyed when they were no longer needed by cases currently being investigated by the Investigatory Powers Tribunal.
Police did not act with malice
Boutcher said McCullough had found no malice or that anyone was deliberately trying to inappropriately use the system.
“There were mistakes. There are process issues. There was a lack of legal advice. Special status issues weren’t properly thought through,” he said.
Human rights groups Amnesty International and the Committee on Administration of Justice last week called for an independent inquiry into spying on a journalist by MI5, following disclosures that the service unlawfully monitored the phone data of BBC journalist Vincent Kearney.
Boutcher said he could not answer for colleagues in the intelligence services, but that there were frameworks in place, such as the Investigatory Powers Tribunal, to provide accountability.
The Northern Ireland Policing Board heard that the relationship between the PSNI and the Security Service, MI5, was governed by an Annex in the St Andrews Agreement, the peace deal which led to the restoration of the Northern Ireland Assembly in 2006.
Under the agreement, PSNI officers are colocated with Security Service personnel to ensure that “intelligence is shared and properly directed within the PSNI”. The PSNI runs the “great majority” of national security agents in Northern Ireland, under the direction of MI5.
The Investigatory Powers Tribunal is investigating 10 complaints brought against the PSNI by journalists, lawyers and non-governmental organisations (NGOs) over alleged unlawful surveillance.
They include cases brought by the BBC, along with former BBC journalist Kearney and former BBC Spotlight reporter Chris Moore, who exposed MI5’s involvement in the Kincora boys’ home.
Boutcher has written to seven journalists in the wake of the McCullough Review, which found that the PSNI had unlawfully accessed their phone data. Another journalist impacted is no longer alive.
UTV journalist Sharon O’Neill is taking legal action after police covertly attempted to identify a confidential source in 2011. Hugh Jordan, journalist at Sunday World, has also been informed that his phone data was accessed.
Boutcher has also apologised to human rights lawyers Peter Corrigan and Darragh Mackin of Phoenix Law after they were subject to unlawful surveillance.
McCullough is due to produce a second report, expected next year, reviewing the progress of the PSNI in implementing 16 recommendations and complaints against the PSNI currently being considered by the Investigatory Powers Tribunal.
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