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PSNI Policy: Journalists’ Data Obtained under Warrant

Volume 666: debated on Wednesday 23 October 2019

Motion made, and Question proposed, That this House do now adjourn.—(Maggie Throup.)

Before I call the right hon. Member for Haltemprice and Howden (Mr Davis), I should inform the House that I have been advised that the matter of deletion, or otherwise, of data obtained by the Police Service of Northern Ireland from the so-called Loughinisland journalists is before the courts, with a hearing date set for next month. Therefore, those specific legal proceedings are sub judice under the terms of the House’s resolution, and therefore references should not be made to the merits or otherwise of that matter. I thank the right hon. Gentleman for his courtesy in consulting the Speaker’s Office in advance of his debate, and I remind any other Member participating in this debate to be equally mindful of the sub judice resolution on matters still before the courts.

Thank you, Mr Deputy Speaker. You are right: I have provided a copy of what I have to say, and I will stick to it religiously throughout the debate. I commiserate with my right hon. Friend the Minister of State, Northern Ireland Office, who has to answer me. He seems to be the Minister for receiving hospital passes from me in the past few months, one way or another.

The issue today is very serious. Twenty-five years ago, on 18 June 1994, a crowd of locals gathered at O’Toole’s pub in Loughinisland in County Down, Northern Ireland, to watch the Republic of Ireland play Italy in the World Cup. Shortly after Ireland scored the winning goal, two members of the Ulster Volunteer Force burst into the pub with automatic assault rifles and sprayed bullets across the bar. Six people were murdered and five more were badly injured in a brutal sectarian attack by loyalist paramilitaries. The people were targeted because they were Catholic. It is known as the Loughinisland massacre and has gone down as one the darkest moments in the Northern Irish troubles. It was an atrocity that shocked even those who lived among sectarian violence day in and day out. At the time, it was described by the media as brutal, inhuman, barbaric, callous slaughter, and it was worldwide news. The families of the victims received condolence letters from the Queen and from the Pope.

The Royal Ulster Constabulary’s investigation, however, was marked by a litany of missed opportunities to gather and examine evidence. The morning after the shooting, the police found the getaway car abandoned in a field in the nearby town of Ballynahinch, but they failed to examine the field properly. They left the car wide open to the elements before it could be fully examined, and they destroyed the car only 10 months later. The murder weapons were found in another field only 10 miles from O’Toole’s bar. The police recovered ample DNA evidence from the rifles, but they failed to follow that up on investigation. The police also had informants embedded in the UVF who were involved in the procurement and distribution of arms, but, again, the police failed to follow up.

The investigation was such a failure that it prompted the victims’ families to call for the Police Ombudsman for Northern Ireland to look into it in 2006. In his damning report, the ombudsman concluded that

“corrupt relationships existed between members of the Security Forces in South Down and the UVF Unit, to whom police attributed the murders at Loughinisland. The failure by police to investigate the veracity of intelligence that those responsible had been ‘warned’ by a police officer of their imminent arrest is inexcusable.”

It is clear that the investigation was a case of both incompetence and collusion, and those responsible for this heinous crime have never been arrested, charged or prosecuted.

I appreciate that the right hon. Gentleman takes a special interest in journalistic freedom and civil liberties, and I have already shown him a copy of this intervention. May I respectfully direct him to the work of another journalist, Mark Rainey, who writes in the Belfast News Letter? Mr Rainey ran a most illuminating series of articles about the officers involved in the investigation of the wicked and heinous murders at Loughinisland, writing that

“almost all of the original concerns about the actions of police—which helped spark the fresh ombudsman investigation in 2012—have now been dismissed as bogus or unjustified, including the erroneous identification of the alleged getaway driver claimed to be a police agent.”

As well as my interest in press freedom, I share with the hon. Gentleman a long-standing interest in the affairs of Northern Ireland throughout the whole course of the troubles, as he well knows. I take this opportunity to pay tribute to his gallant service in the Ulster Defence Regiment right at the height of the troubles and the difficult times, so we are in the same place on this. I have the greatest respect for the original RUC and now the Police Service of Northern Ireland. All the officers serving in those forces are brave, and the vast majority are absolutely determined to see justice delivered, but on this occasion, there is a different view put by the ombudsman, and I think I have to treat that as the overriding judgment. This is not the main point that I want to make today, but I urge the Government and the PSNI to reopen the original investigation into Loughinisland to ensure that it is done to everybody’s satisfaction this time.

Thirteen years on from the brutal assault, two Northern Irish journalists, Barry McCaffrey and Trevor Birney, exposed the truth. In a remarkably hard-hitting documentary called “No Stone Unturned” released in September 2017, they told a story of the victims of the massacre and their families, shining a light on the collusion and incompetence at the heart of the investigation and naming those suspected of being responsible. Like countless journalists have done over the years, they got their information from an anonymous leak. In a plain unmarked envelope, Barry McCaffrey was sent an unredacted Police Ombudsman’s report naming the suspects and detailing the evidence behind the allegation of police cover-up. It found collusion between the RUC and the UVF, incompetence and a cover-up of the true events, and for the first time, it named those whom the police believed to be responsible for the brutal murders. What started as a hard-hitting documentary on a huge event in Irish history would now become a dramatic exposé of the failure of policing.

It was of course an investigative journalist’s dream leak, but, even so, during the film’s pre-publication and editing process, the journalists offered the named suspects a right of reply, which was not taken up. They also informed the ombudsman of the suspects the film would name. The ombudsman passed that information on to the PSNI. They wanted to be sure the PSNI was informed in case there was any concern for the safety of the suspects or in case the police had any other compelling reason why the film should not be released. They received no response.

When the documentary was released in 2017, it was well regarded by both communities in Northern Ireland, and in July 2019 it was nominated for an Emmy in the “outstanding investigative documentary” category. But a year after it was broadcast, Barry McCaffrey and Trevor Birney were arrested on extraordinary charges by the PSNI. For simply doing their jobs, they were arrested and charged with suspected theft, handling stolen goods, breaches of the Official Secrets Act and breaches of data protection rules. The PSNI’s action was extraordinarily heavy-handed; some 100 armed officers turned up at their homes at seven in the morning while their families were eating breakfast. The police arrested the journalists in front of their wives and children. Then the police searched their homes and offices, and seized their phones, laptops and hard drives. They even seized the phones of Barry and Trevor’s children. Now the police hold a huge amount of very personal data belonging to these journalists and their families.

Imagine if the same had happened to the journalists who published leaks from the National Security Council on Chinese involvement in the 5G network, an issue that really did have an impact on national security; or the leaked diplomatic telegrams from Sir Kim Darroch; or the leaked Yellowhammer documents last month—there rightly would have been a national uproar. All those leaks were uncomfortable for the state, but that is precisely what journalism is for: to hold those with power and authority to account, and force them to answer for their decisions.

Barry McCaffrey and Trevor Birney had the courage to challenge this outrageous intrusion into press freedom in the Northern Irish courts. In June, the High Court quashed the search warrants used to search the properties and seize the electronic equipment—I was in the Court. Sir Declan Morgan, the Lord Chief Justice of Northern Ireland, handed down a damning indictment of the police’s conduct and in defence of a free press. He struck down the search warrants as unlawful. He went on to say the journalists acted in a

“perfectly proper manner with a view to protecting their sources in a lawful way.”

The Court rightly stood up for the fundamental principle of press freedom and protected these journalists from a misguided attempt by the police to prevent their own embarrassment. If this warrant had been allowed to stand, it would have had a hugely chilling effect on investigative journalism across the whole country—the whole United Kingdom. A truly free press must be able to stand up to the state and the establishment without fear of reprisal. It must be able to expose uncomfortable truths and ask tough questions. That is what this case represents, but it is sadly now back in the courts.

Following the quashing of the warrants, the PSNI had to be hauled back before the Court again to have the journalists’ property returned. Again, the Court ruled in the journalists’ favour, and the police duly complied. But the police now insist on retaining the data taken from the phones and computers seized from the journalists. So far, everything I have said is in the public domain. However, as you said at the beginning, Mr Deputy Speaker, I am precluded by sub judice rules from discussing the particular issues currently before the Court in this case. It must be said that this is a judge-only hearing heard by the Lord Chief Justice, so there is little risk of any undue influence. Nevertheless, I will comply with the rules.

Data retention by the police throughout the UK has been a long-running issue—from DNA to fingerprints, from biometric data to personal electronic data. These issues often face tension between civil liberties, individual privacy and the demands of the police. For example, when someone is arrested, it is commonly the case that their phone data is held long after the person is released and exonerated. We all understand that a certain amount of data retention is necessary for fighting crime, but by definition this data should be about guilty people committing crimes; as far as possible, we should avoid retaining the data of innocent people. On the rare occasions when that proves necessary, it should be under the strict control of the courts and its use strictly limited.

Without very good reason, data from innocent journalists should never be kept. It surely cannot be right for police to store data obtained from a warrant that has been ruled unlawful. I therefore urge the Home Office and the Northern Ireland Office to keep a close eye on the development of the Loughinisland case and, when it is adjudicated, review the policies on data acquisition and retention for the PSNI and other police forces throughout the country. This issue is not confined to Northern Ireland, so it will impact investigative journalists and whistleblowers across the whole country. Whistleblowers will see such cases, feel intimidated and think that the information they give to journalists is subject to capture and inspection by the police or other agencies of the state. Press freedom is at the core of our democratic system, and it must be protected.

My right hon. Friend the Member for Haltemprice and Howden (Mr Davis) joked about this being the latest in a series of hospital passes, but he is of course absolutely right that he has drawn to our attention an extremely serious matter, not only because of some of the core principles that it evokes but because it reminds us of one of the darkest and most terrible moments in that most difficult of times. Listening to him, I was reminded of how many times in my years in this place I have listened to him speak with great passion and conviction about the importance of defending press freedom and civil rights. I do not think there is a more doughty champion of those issues in this place, and it was a pleasure to hear him speak again to that critical agenda. I do not suppose any Member would disagree with him about the need to protect the freedom of the press to unearth uncomfortable truths. That is at the heart of our democratic process.

To some degree, I am frustrated, Mr Deputy Speaker, because there are real limits, limitations and challenges in responding to this debate for the Government. The first, of course, flows from your clear strictures on the need to comply with all the guidance, policies and procedures in respect of avoiding comment on any live legal proceedings, which is the status of this case. My right hon. Friend is experienced enough from his time in government—in fact, I am sure he has stood at the Dispatch Box at some point in the same position as I am in—that I know he will not want me to do anything to prejudice the fair and impartial conduct of proceedings. I am sure that other Members will fully respect the judicial process and its independence.

My right hon. Friend’s remarks focused on the policy of the Police Service of Northern Ireland in respect of journalists’ data obtained under warrant, and he raised both general points of principle and a range of specific issues. I listened carefully to what he said, and of course the case is subject to legal processes, but I join him, the Secretary of State and others in wanting to register on this occasion our respect and support for the Police Service of Northern Ireland, particularly at this most challenging time. I could not have a better impression of the leadership and officers I have met. They have an incredibly difficult job to do and we thank them for it.

Of course—I speak as a former police Minister for England and Wales—many of the wider issues raised tonight are operational issues for the police themselves to speak and respond to, and Ministers must respect that independence. Although matters of general principle must of course be debated in the House, I suggest that we must collectively avoid saying or doing anything that could undermine that process or undermine community confidence in policing in Northern Ireland.

I want to say some things about scrutiny and accountability of the police service, given the thrust of the comments of my right hon. Friend. I have some experience of the accountability of the police. Arguably, there is no police service in the United Kingdom, or even the world, that is more heavily scrutinised than the Police Service of Northern Ireland. A wide, carefully considered framework of accountability exists to ensure that all aspects of policing practice are fully scrutinised. Central to that scrutiny is the locally appointed Northern Ireland Policing Board, which was reconstituted this year at the direction of the Secretary of State for Northern Ireland, who is in his place next to me, to ensure that full scrutiny of PSNI’s activities could take place in the continuing and regrettable absence of a Northern Ireland Executive. My right hon. Friend will be aware that the board had not, from the collapse of the devolved institutions in January 2017 to the point where the UK Government took action, been able to fully fulfil its statutory functions.

I am very pleased that the Policing Board is now once again fully operational and engaged in detailed and regular scrutiny of policing in Northern Ireland, and that is taking place at a local level, as is entirely appropriate. The Policing Board, which comprises both political and non-political members, plays a crucial role in scrutiny of the PSNI and, in doing so, helps to ensure that cross-community confidence in policing which is so critical and which I am sure that we all want to see upheld, because it is central, of course, to the wider peace process in Northern Ireland. I note, as I am sure my right hon. Friend knows, that both the former and the current Chief Constable of the PSNI have appeared on numerous occasions before the Northern Ireland Policing Board to discuss data retention, operation updates and other related issues. In responding to this debate, I do not intend to rehearse their comments, as they are a matter of public record. It is for them to comment on these matters, although I note that they, too, have been studiously careful to respect the principle of sub judice where that is appropriate.

I wish to note in this context the work of the Police Ombudsman in Northern Ireland. Having an independent, impartial Police Ombudsman is fundamental to public trust and confidence in policing and justice in Northern Ireland, which we know has been hard won and must not be undermined. The ombudsman is an important part of providing confidence in policing through an independent mechanism for investigating police complaints in Northern Ireland, and it is essential during these investigations that the ombudsman is able to follow the evidential trail unfettered. I know that it is a principle that the Police Service of Northern Ireland fully supports in line with both the letter and the spirit of the law. I also know that the Police Service of Northern Ireland will not be found wanting if areas for improvement are identified. This is a police force that places the protection of human rights at its core.

It is also important to note that oversight more generally of the Police Service of Northern Ireland is not a matter for Northern Ireland Office Ministers. UK Government Ministers maintain a close interest, of course, in the security situation in Northern Ireland, but the devolution of policing and justice in 2010 ensured that the devolved Executive and Assembly lead on this important function.

We have heard tonight that the matters under discussion are of a genuinely critical importance. In general terms, I would note, of course, that the right to freedom of expression, as reflected in article 10 of the convention and given further effect in the UK through the Human Rights Act 1998, is not an absolute right and does not prevent the authorities from taking legitimate and proportionate action to prevent and investigate crime. Having said that, the UK condemns strongly any attempts by Governments to restrict the freedom of the media to hold those in authority to account, or to intimidate or detain journalists for political purposes. We believe that there is nothing in recent cases that calls into question this position by the United Kingdom.

We can all point with pride to the efforts the UK Government are expending to build a global environment in which free and vibrant media can flourish. As part of our leadership on this international agenda, the UK will continue to maintain the highest standards of press freedom while retaining the right to take lawful and proportionate action to prevent and investigate crime in accordance with human rights treaties and the Human Rights Act.

Having said that, when we do come across instances like this one, it is entirely right that they are probed and challenged, that a spotlight is shone on them and that there are accountability mechanisms around them. I assure my right hon. Friend that we will continue to keep a close eye on the case and keep it under discussion. I thank him again for bringing this issue to the House today.

Question put and agreed to.

House adjourned.