A former detective regarded as a key witness in an investigation into allegations that police unlawfully monitored the phones of journalists has accused lawyers of seeking “payback,” a court heard today.
Former Durham police detective Darren Ellis claimed in an email to the Investigatory Powers Tribunal that lawyers and journalists were “riding rough-shod over people who’ dare’ challenge them.”
The tribunal is investigating claims that Northern Ireland journalists Trevor Birney and Barry McCaffrey, and former BBC journalist, Vincent Kearney, were unlawfully placed under police surveillance in an attempt to identify their confidential sources.
Ellis, a key witness in the case, informed the IPT in an email on Tuesday evening that he was no longer willing to give evidence or face cross examination.
The former detective led an investigation for Durham Police and the Police Service of Northern Ireland (PNSI) into journalists Birney and McCaffrey in 2018, after they produced a documentary exposing PSNI collusion in a sectarian murder.
The journalists were unlawfully arrested, and had their property seized, as part of an operation to identify their confidential sources.
Ellis claimed in an email to the court this week that he was unwilling to give evidence as the journalist’s lawyers were unwilling to accept clear explanations and were attempting to “re-write history”.
“The applicants and their legal teams operate in a community when no-one ever holds them to account. In a system that simply allows them to ride rough-shod over people who ‘dare’ challenge them,” he wrote
“For too long they shout and they brawl and intimate others. I consider it to be a strategy to frighten and softly intimidate and hence place a ring of steel around corrupt activity,” he said.
“Their growing legal teams, simply seem to look to rewrite history and have an innate ability to be unable to accept clear explanation and correction of their superstition and innuendo. This isn’t ‘sport’ for them. This isn’t ‘pay-back’ time. This is serious stuff which has serious implications,” the email continued.
Ben Jaffey KC, representing McCaffrey and Birney told the tribunal that the language used by Ellis in the email was dangerous in the context of the history of Northern Ireland. It was language accusing “journalists and lawyers of payback.”
“Those words do create pause because this case is about journalists and lawyers doing their jobs. But Ellis says that no one is holding them to account. That sort of language is dangerous,” he told the court.
He said Ellis regarded himself as a victim not the arresting officer in the case. He had a deep sense of “grievance and animus” against investigative journalism and lawyers.
Jaffey said that Ellis had failed to answer the difficult questions and that he should now be ordered, if necessary, to attend the tribunal to give evidence and to be cross examined.
He told that court that the PSNI maintains that it used surveillance powers in good faith. “We do not accept that,” he said.
In a further development, written submissions filed in court revealed that a third police force, which was not named in open court, carried out extensive analysis of communications between journalists, at “large scale” over “substantial periods”.
The information gathered included cell-site data giving the location of journalist’s mobile phones.
Police also analysed the contents of emails and other police records relating to journalists.
“There is no evidence that any consideration was ever given to whether statutory procedures should have been adopted to obtain such material, given that the purpose of these arrangements was to identify journalistic sources,” Jaffey wrote.
Sources lives at risk
Brenda Campbell KC, representing the NUJ said that the case raises wider issues of public importance.
She said that state surveillance impacted the ability of all journalists to do their job particularly when it involves investigating or criticising the state.
If journalists’ sources can be identified, it impacts on the safety of sources, up to and including threats to life when journalists are reporting on paramilitary activities or organised crime, she told the court.
She told the court that the PSNI exerting pressure on journalists to reveal their confidential sources was nothing new, but the ability to access journalists’ sources by monitoring their phone calls surreptitiously was a new development.
The PSNI’s position was that there was an application for communications data that was made erroneously through developing case law, but the NUJ was “concerned there was something more substantial at stake.”
Campbell told the court that even if the NUJ’s concerns were misplaced and the PSNI was acting in good faith, that was not a complete answer.
“We are in an arena where errors should not take place because journalists lives are at stake,” she told the tribunal.
The court declined an application to join a complaint over police surveillance brought by BBC journalist Vincent Kearney, who is represented by lawyers instructed by the BBC, to Birney and McCaffrey’s IPT hearing scheduled in October.
The court heard although the cases were related. a number of ‘non-core’ respondents in the case – MI5, GCHQ, the Home Office and the Foreign and Commonwealth Development office – would need until December to complete searches of their records against the names of 16 individuals who may have been subject to surveillance.
Justice Singh, president of the IPT, said that while the cases of BBC and Vincent Kearney must be dealt with as quickly as possible, “we are not however ready to proceed against non-core respondents.”
The tribunal agreed to ask Ellis to attend the court to give evidence, but Jaffey confirmed he could seek a court order to compel Ellis to give evidence if he did not agree voluntarily.
The case continues in October
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