A former detective brought in to investigate the confidential sources of two journalists who exposed collusion between police in Northern Ireland and paramilitary groups reported solicitors acting on their behalf to the Law Society of Northern Ireland.
Former Durham Constabulary detective Darren Ellis, told a tribunal investigating allegations that police unlawfully placed the two journalists under electronic surveillance, that the conduct of solicitors acting for the journalists was “aggressive”.
The landmark case will test whether existing legal safeguards to protect confidential journalistic sources are sufficient and effective in practice.
Ellis was giving evidence to the Investigatory Powers Tribunal which has been asked to rule on allegations that the PSNI and other police forces unlawfully spied on journalist Barry McCaffrey and Trevor Birney after they produced a film exposing police collusion in paramilitary murders in Loughinisland, County Down.
Under questioning from Ben Jaffey KC, Ellis denied that he had attempted to persuade the Northern Ireland Law Society to take action against solicitors KRW, acting for Trevor Birney.
Ellis said he was not asking the law society to do anything. He said, “I highlighted concerns. I [was] not asking anyone to take action.”
The former detective told the court he was unhappy with the law society’s response that it would only investigate if a member of the regulatory body had been found guilty of a criminal offence.
“Was I disappointed? I was disappointed by the response. Did I ask them to intervene? Absolutely not,” he said.
Questioned by tribunal member Stephen Shaw KC, Ellis confirmed he had described the law society representatives as “unsympathetic” and “defensive”.
Asked whether he was investigating lawyers, Ellis said he was investigating leaked documents, but could not “investigate with his eyes closed”.
“I thought I had done the right thing by informing the right people what my concerns were,” he said.
Criminal activity
Durham police and the PSNI arrested Birney and McCaffrey and raided their homes and the offices of their film company in August 2018, seized phones and computer equipment and copied the film company’s server.
Ellis confirmed that he had put in a directed surveillance application to monitor a “third party” official at the Police Ombudsman of Northern Ireland (PONI), who he suspected may have leaked documents to the journalists.
The court heard that the police intended to establish whether McCaffrey and Birney met with the suspected official after they were released.
According to the direct surveillance application, police investigators intended to record any conversation between the two journalists and the PONI suspect, if they met, and to intervene if any documents were handed over.
Ellis denied that his objective was to arrest Birney and McCaffrey and to see whether that led them to contact their source.
“You use the word source, I would use the terminology, someone who was suspected of committing a criminal activity,” he said
He told the court, “This was a significant event, let’s not underestimate that. If that third party was going to do something different to something they would normally do, that was the day they were going to do it.”
Misleading and sensationalist
The court heard that Ellis had recorded in his policy book that the film No Stone Unturned contained misleading and sensationalist reporting and described it as a pseudo-journalistic murder investigation.
Ellis repeatedly told the court that his sole concern was that secret information had ended up in a film.
“Investigative journalism has a place in society…all I asked people to do, was to stick to the law,” he said.
Under cross examination he said that he did not know whether there was anything misleading about the film.
“My work was about identifying and recovering secret documents. I am sorry if I come across as defensive,” he said.
Ellis told the court, “I don’t want the tribunal to think, with all due respect, that this was a top heavy PSNI investigation. It was not,” he said.
He denied that the police investigation was about embarrassment to the authorities.
“My role is to search ethically…proportionally for the truth. I have not even set foot in Northern Ireland before this. I didn’t even want to do it,” he said.
Detective “let down” by Durham police
Ellis said that Durham police’s failure to provide him with legal advice had left him feeling “let down” by law enforcement. He went on, “I felt alone, bewildered”, and “didn’t have anyone to turn to”.
“I’m a passionate guy” and “I try and search for the truth” Ellis said.
Trevor Birney and Barry McCaffrey are bringing the case against the Police Service of Northern Ireland (PSNI), Durham Constabulary, GCHQ and MI5.
Following their arrest in 2018, the journalists were exonerated by the former Lord Chief Justice of Northern Ireland Declan Morgan in a judicial review in 2019, when he ruled that Durham Constabulary and the PSNI unlawfully used search warrants in an attempt to identify Birney and McCaffrey’s sources.
The case raises wider questions about the extent that police and intelligence agencies continue to monitor journalists’ phone and email communications despite the introduction of greater legal protections for journalists and their sources since 2016.
Speaking outside of court, McCaffrey said that he had been waiting five years for the hearing.
“We hope that what has happened to us and happened to other journalists – hundreds of other journalists – is finally going to be made public. Because this case isn’t about Trevor and myself, its about those hundreds of journalists that were spied on in an industrial way by the PSNI Metropolitan Police, Durham police and MI5.”
The case continues
