The PSNI has commissioned a senior lawyer to review whether there was any misconduct by police officers following an independent review that found police unlawfully monitored journalists’ phone data, but found no ‘widespread and systemic’ surveillance.
Jon Boutcher, chief constable of the Police Service of Northern Ireland, told the Northern Ireland Policing Board that he had appointed an “eminent” legal counsel, John Beggs KC, to review a 200 page report on PSNI surveillance and report back to confirm there was no misconduct or wrong-doing by police officers.
Beggs, a specialist in police misconduct cases, represented the police commanders at the 2016 Hillsborough inquests, and is the co-author of Police Misconduct, Complaints, and Public Regulation
Separately, the police force has referred itself to the Information Commissioner’s Office (ICO), to investigate whether a “defensive operation” by the PSNI to gather journalist’s phone numbers to and compare them to internal phone records to identify PSNI staff who may have passed information to journalists was lawful.
Boutcher was speaking following the publication of a 200 page review by Angus McCullough KC, which found that the PSNI had made 21 phone data applications to identify journalist’s confidential sources, collated a secret register of over 1000 journalists phone numbers, and identified four cases where the PSNI had used “directed surveillance” for investigations involving journalists and one involving a lawyer.
Sinn Féin representative Gerry Kelly, pressed the chief constable on whether he stood by his public statement that there were no issues of misconduct, criminality or unlawfulness revealed by the McCullough report.
Kellly said there were “unlawful retentions” of two journalists data, despite clear court orders that the data should be destroyed, that there were 21 cases of the unlawful use of covert powers to identify journalists sources, and a “washing through” operation to identify PSNI employees who had phone contact with journalists that was likely in breach of human rights laws.
“I just think for you to come in and to say that there’s no issue here, I just find hard,” he told Boutcher.
Code of practice had no public interest test
Boutcher said that the Investigatory Powers Tribunal, found that the PSNI had acted unlawfully in 2013 by obtaining the phone data of journalist Barry McCaffrey, but had found that PSNI officers had acted in good faith.
This was because the 2007 codes of practices followed by the police “were not fit for purpose” and were changed in 2015, to introduce a public interest test, said Boutcher.
“Proper consideration wasn’t given in the application process around things that weren’t required by the code, but should have been,” he said.
Boutcher said that he had asked the Information Commissioner to assess the legality of the “washing through” operation.
The PSNI’s professional standards department, had stopped the practice in March 2023, and Boutcher had issued a formal notice to discontinue the practice in May 2024, the policing board heard.
Boutcher said that police should be able to investigate whether staff breached the PSNI’s code of ethics by releasing information to journalists, but investigations should be based on a “specific and precise concern”.
“In all the time that I’ve been a senior investigating officer and dealt with some really complex organised crime operations, I don’t think I’ve ever required comms data for a solicitor or a journalist,” he said. “So I don’t understand why the washing through was done, and it’s not going to happen anymore. It stopped,” he added.
He told the policing board that the lists of journalists used in the “washing through” operation were inaccessible and would be destroyed when they were no longer needed by cases currently being investigated by the Investigatory Powers Tribunal.
Police did not act with malice
Boutcher said that McCullough had found no malice or that anyone was deliberately trying to inappropriately use the system, he said.
“There were mistakes, there are process issues. There was a lack of legal advice. Special status issues weren’t properly thought through,” he said.
Human rights groups, Amnesty International and the Committee on Administration of Justice last week called for an independent inquiry into spying on journalist by MI5, following disclosures that MI5 unlawfully monitored the phone data of BBC journalist Vincent Courney.
Boutcher said that he could not answer for colleagues in the intelligence services, but that there were frameworks in place, such as the Investigatory Powers Tribunal to provide accountability.
The policing board heard that the relationship between the PSNI and the Security Service, MI5, was governed by an Annex in the St Andrews Agreement, the peace deal which led to the restoration of the Northern Ireland Assembly in 2006.
Under the agreement PSNI officers are co-located with Security Service personal to ensure that “intelligence is shared and properly directed within the PSNI” . The PSNI runs the “great majority” of national security agents in Northern Ireland, under the direction of MI5.
The Investigatory Powers Tribunal is investigating ten complaints brought against the PSNI by journalists, lawyers and NGOs over alleged unlawful surveillance.
They include cases brought by the BBC and former BBC journalist Vincent Kearney and former BBC Spotlight reporter, Chris Moore, who exposed MI5’s involvement in the Kincora boys home.
Boutcher has written to seven people in the wake of the McCullough report, which found that the PSNI had unlawfully accessed their phone data. Another journalist impacted is no longer alive.
UTV journalist Sharon O’Neill is taking legal action after police covertly attempted to identify a confidential source in 2011. Hugh Jordan, journalist at the Sunday World, has also been informed that his phone data was accessed.
Boutcher has also apologised to human rights lawyers, Peter Corrigan and Darragh Mackin of Phoenix Law after they were subject to unlawful surveillance.
McCullough is due to produce a second report, expected next year, reviewing the progress of the PSNI at implementing 16 recommendations, and complaints against the PSNI currently being considered by the Investigatory Powers Tribunal.
