The British Security Service MI5 and the Police Service of Northern Ireland have been ordered to pay damages to journalist Vincent Kearney for illegally accessing his phone data.
The Investigatory Powers Tribunal (IPT) made seven findings that authorisations to access, retain and use Mr Kearney’s phone data were not in accordance with the law and disproportionate.
M15 and the PSNI have each been ordered to pay £10,000 in damages.
It is understood that this is the first time M15 has been ordered to pay damages to a journalist.
Speaking today, Vincent Kearney welcomed the judgment.
“This is a tremendous victory for journalism and an affirmation of the duty and legal rights of journalists to protect sources.”
He said the court had ruled that the PSNI and MI5 had broken the law when they interfered with his communications data over a period of many years in efforts to identify his confidential sources.
Vincent Kearney, who is currently RTÉ’s Northern Editor, was the Home Affairs Correspondent for BBC Northern Ireland at the time these incidents occurred between 2006 and 2017.
Mr Kearney and his former employer brought the case to the IPT, alleging that UK state agencies accessed his phone data in an attempt to uncover the sources of some of his stories.
The IPT hears cases where it is alleged that the State overstepped the rules around covert intelligence gathering.
This case was triggered following another IPT claim in relation to two other journalists, Trevor Birney and Barry McCaffrey, which revealed interferences with Mr Kearney’s journalistic data.
The Tribunal heard evidence over three days in February this year; two of these were closed sessions.
In its judgment published today, the IPT found that M15’s authorisations to access Vincent Kearney’s phone data in 2006 and 2009 were not in accordance with the law and were disproportionate.
M15 had conceded that their authorisations in 2006 did not expressly reference the fact that he was a journalist, and therefore, there was not heightened scrutiny of the justification for accessing journalistic material.
It accepted that “while acting in good faith”, it had breached Mr Kearney’s human rights under ECHR Article 8 and Article 10, which protects your private life and the protection of journalists’ sources.
In relation to the 2009 authorisations, M15 had applied to access all call related data from Mr Kearney’s mobile phone number on the grounds of national security.
The request made clear that the intention was to identify his journalistic sources.
The IPT said that the request did not recognise that a measure to identify sources had to be justified by an overriding requirement in the public interest and also failed to recognise the significance of the intrusion into Mr Kearney’s own rights as a journalist.
Several findings were also made against the PSNI for illegally accessing Vincent Kearney’s phone records.
This includes during their investigation into the murder of PSNI officer PC Stephen Carroll on 10 March 2009.
Vincent Kearney had received a call on the same day, from an individual claiming to represent the Continuity IRA, and who claimed responsibility for the murder.
He notified the PSNI about the call but did not give a witness statement.
The PSNI made applications to access Mr Kearney’s and the BBC’s data between the 10 and 14 March and again in October 2009.
It accepts that the applications were unlawful because it did not ask if there was an “overriding requirement in the public interest” for the interference with the confidentiality of his journalistic sources.
The Tribunal found that while it might be possible that these authorisations could have been justified if the correct legal test was applied, there is no material available from the PSNI to establish that, and it therefore found the authorisations to be illegal and disproportionate.
Mr Kearney said that seeking damages was not the purpose of the case, but rather to “bring into the public domain the extent of the law breaking over a period of many years”, and the impact it had on his ability to do his “lawful duties as a journalist”.
He said the fact the court decided to award damages, which it does not normally do, reflects the seriousness of the case.
“The judges make clear that the impact of the illegal activities on me, and on the trust that potential sources can place in the confidentiality of their communications with me, was an important factor in their decision to award damages.
“The award of damages against MI5 is particularly significant as it is the first time the IPT has taken such action, and the first time the security service has been ordered to pay damages to a journalist.
“It is important that agencies charged with upholding the law know that they are not above the law and will be held to account,” he said.
Mr Kearney thanked the BBC legal team for their work on the case.
Kearney receives ‘sincere apology’ from PSNI after ruling
PSNI Chief Constable Jon Boutcher offered a “sincere apology” to Mr Kearney following the ruling.
He said: “Significant changes to practice and policy have already been made since these issues occurred, with the role of the Investigatory Powers Commissioner’s Office in independently authorising communications data requests, and the enhanced safeguards of the judicial commissioners in scrutinising requests involving those who may handle confidential information.”
Mr Boutcher highlighted the report published by Angus McCullough KC last year on the PSNI’s use of surveillance, which identified more than 20 attempts by the force to identify journalists’ sources but determined the surveillance was not “widespread or systemic”.
He added that the McCullough Report and the Investigatory Power Commissioner’s oversight “ensure that the recognised independence of journalism and the freedom of the press is proportionality balanced against any lawful and overriding law enforcement requirement”.
Mr Boutcher added: “As a police service we are committed to ensuring that we learn from mistakes when they are made. We are committed to transparency and using the powers available to us in a way that is lawful and in the public interest.”
A BBC spokesperson said the issues raised in the case were a “matter of grave concern, not just for the BBC but to wider society”.
“Journalistic freedoms are a basic part of how democracies work. Their importance is recognised in law and matters to all of us.
“What happened in this instance was wrong and must never be repeated. It caused harm to a journalist, jeopardised trust and threatened the safeguards on which public interest journalism depends and has a right to expect.
“Today’s findings are welcome, necessary and significant. And we hope that their effect will be to protect journalists and their freedom to report and investigate stories into the future.”
The IPT said it was making an order for £10,000 damages to Mr Kearney in respect of PSNI interferences with his communications on four occasions in 2009, twice in 2012, twice in 2013 and four times in 2014.
It said it saw “no reason to distinguish between the conduct of the PSNI and that of MI5” and made an award of £10,000 in Mr Kearney’s favour against MI5 also.
The National Union of Journalists (NUJ) welcomed the Tribunal’s judgment.
Séamus Dooley, NUJ assistant general secretary, said: “The revelations at the IPT hearings have given a deeply worrying insight into the actions of the police and security forces against journalists. The criminalisation of journalists is an affront to democracy and a fundamental breach of trust.”
Mr Dooely said the judgment “reinforces the need for a judge-led inquiry into the unlawful surveillance of journalists, lawyers and human rights defenders by police and security forces”.
“We have witnessed the impact of illegal surveillance on our members and it is time to call a halt. There is an opportunity for the new Northern Ireland Secretary and the Chief Constable to act to restore public trust. However, it is vital MI5 is subject to scrutiny in any review. For far too long, national security has been used as a shield by police and intelligence services – but the IPT findings have revealed an abuse of that cover that can no longer be tolerated,” he said.
Managing Director at RTÉ News & Current Affairs Deirdre McCarthy said “the scale of the covert surveillance and accessing of journalist Vincent Kearney’s communications data by British security and policing agencies has been deeply concerning”.
Mc McCarthy said: “What has emerged, and what was heard in evidence at the Investigatory Powers Tribunal is of deep concern for us as journalists and media working in the public interest. RTÉ will protect public interest journalism, enabling journalists to report stories without fear and undermining of their work.”
She added that “any deliberate circumventing of long established legal protections of journalists and their sources damages trust in media and ultimately our democracy”.
Protect journalism, as society needs to hold power accountable – Amnesty
Northern Ireland Deputy Director for Amnesty International UK Grainne Teggart welcomed the judgment, saying covert and unlawful surveillance of reporters is a “direct attack on the free and fearless reporting society needs to hold power accountable”.
“Police forces and the security service are not above the law and must be held accountable for wrongdoing,” she said.
Ms Teggart said It is critical that we now see “full transparency, accountability and a decisive end” to the “unlawful surveillance of journalists and dangerous disregards of press freedom”.
She said the chilling effect of these unlawful actions by police and the security service remains deeply concerning and demands nothing less than cast-iron safeguards to protect journalism.
“Trust must be restored and the rights of journalists respected, protected and upheld,” she added.