Northern Ireland

Barry McCaffrey and Trevor Birney: Court adjourned due to late disclosure of police documents

Trevor Birney and Barry McCaffrey were controversially arrested in 2018.

Journalists Barry McCaffrey (second left) and Trevor Birney (centre left) with supporters outside court
Journalists Barry McCaffrey (second left) and Trevor Birney (centre left) with supporters outside court (Jordan Pettitt/PA)

An Investigatory Powers Tribunal hearing into claims UK police subjected two journalists to unlawful surveillance has been adjourned due to late disclosure of police documents.

The tribunal heard that one of the documents relates to a directed surveillance authorisation approved by the PSNI in a bid to unmask a source who had provided information used in a documentary made by Northern Ireland-based film-makers Barry McCaffrey and Trevor Birney.

Ben Jaffey KC, representing Mr McCaffrey, said he only got sight of what he said could be the most important document in the case at 7.30am on Wednesday, hours before the hearing was due to start.

“This case is I’m afraid a shambles which is not ready for considered judicial determination at the moment,” he said.

Mr Birney’s counsel Stephen Toal KC also expressed concern at the late disclosure.

“This is not the approach that is taken in Northern Ireland to matters of discovery and disclosure,” he said.

“It is a shambles and it certainly is not indicative of how we usually do cases there.”

Tribunal chairman Lord Justice Singh told all legal parties in the case to engage with each to agree “rigorous directions” to ensure the case could resume again without undue delay.

He then allowed the counsel for the applicants to set out the outline of their cases before adjourning proceedings.

The two investigative journalists had called for answers ahead of a tribunal hearing to examine allegations that they were subject to covert surveillance by UK authorities.

In 2018, Mr McCaffrey and Mr Birney rose to public prominence after they were controversially arrested as part of a police investigation into the alleged leaking of a confidential document that appeared in a documentary the men made on a Troubles massacre.

The PSNI, citing a conflict of interest, asked Durham Police to lead the investigation into the inclusion of the Police Ombudsman for Northern Ireland document in the No Stone Unturned film on the 1994 UVF massacre in Loughinisland, Co Down.

Former PSNI chief constable Simon Byrne later unreservedly apologised for how the men had been treated and the PSNI agreed to pay £875,000 in damages to the journalists and the film company behind the documentary.

Journalists Barry McCaffrey and Trevor Birney outside the Royal Courts of Justice ahead of the specialist tribunal hearing
Journalists covert surveillance tribunal Journalists Barry McCaffrey and Trevor Birney outside the Royal Courts of Justice ahead of the specialist tribunal hearing (Jordan Pettitt/PA)

The 2020 settlement came after a court ruled that the warrants used by police to search the journalists’ homes and Fine Point Films had been “inappropriate”.

In 2019, Mr Birney and Mr McCaffrey lodged a complaint with the Investigatory Powers Tribunal asking it to establish whether there had been any unlawful surveillance of them.

The respondents in the case are the PSNI, Durham Police, MI5, the Security Service Government Communications Headquarters (GCHQ) and several Government ministers.

The hearing at the Royal Courts of Justice in London, the tribunal will also probe a separate issue, pre-dating the documentary, which involves claims that police officers unlawfully accessed Mr McCaffrey’s phone records.

Mr McCaffrey had been investigating alleged police corruption around the time his data was said to have been accessed by the PSNI in 2013.

Barry McCaffrey (centre left) and Trevor Birney (centre right) with solicitors Niall Murphy (right) and John Finucane (left) leaving Musgrave Street police station in Belfast after their arrest in 2018
Loughinisland Massacre Barry McCaffrey (centre left) and Trevor Birney (centre right) with solicitors Niall Murphy (right) and John Finucane (left) leaving Musgrave Street police station in Belfast after their arrest in 2018 (Liam McBurney/PA)

Mr Birney and Mr McCaffrey were greeted by supporters as they arrived at court on Wednesday morning accompanied by their solicitors, Niall Murphy and John Finucane.

“We’re here simply to seek the truth,” Mr Birney told reporters outside the Royal Courts of Justice.



“We’re here to find out exactly what was going on in the years leading up to our arrest in 2018. We don’t know what we’re going to hear this morning. We don’t know how this is going to go.

“We don’t know if the PSNI and Durham (Constabulary) are going to come clean and tell us what actions they were taking against journalists in Belfast over the last 10 years.”