A court has ordered the Security Service and the Police Service of Northern Ireland (PSNI) to pay damages to a former BBC journalist for unlawfully accessing his phone data.
The PSNI and MI5 have been ordered to pay Vincent Kearney damages of £10,000 each for accessing his communications data in an attempt to identify his confidential journalistic sources.
The case represents the first time that the Security Service, MI5, has been ordered to pay damages for conducting unlawful surveillance.
The Investigatory Powers Tribunal today identified seven occasions between 2006 and 2017 where authorisations were issued to access Kearney’s phone data that were disproportionate and not in accordance with the law.
Kearney and the BBC brought the case in 2024 after learning that his phone data had been accessed from evidence that emerged from a separate case brought by journalists Barry McCaffrey and Trevor Birney against the PSNI.
Victory for journalists
Vincent Kearney, currently northern editor at RTÉ’ was home affairs correspondent for BBC Northern Ireland at the time of the surveillance.
“This is a tremendous victory for journalism and an affirmation of the duty and legal rights of journalists to protect sources,” said Kearney after today’s judgment.
“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,” he said.
“The court has ruled that the PSNI and MI5 broke the law when they interfered with my communications data over a period of many years in efforts to identify confidential sources,” he said.
According to the IPT judgment any measures taken which interfere with the confidentiality of journalist’s sources must be “justified by an overriding requirement in the public interest” and any authorisation to do so must be first reviewed by a judge or another independent body.
MI5 unlawfully accessed phone data
The court found that MI5 first applied for billing data, and details of phone numbers that had been in contact with Kearney in 2006. MI5’s applications failed to identify Kearney as a journalist and failed to state their purpose was to identify his journalistic sources, the court found.
MI5 said it had acted in “good faith” by following the codes of practice at the time but admitted that it had breached Kearney’s rights to privacy and freedom of expression, which protects confidential journalistic sources, under European Convention on Human Rights.
In 2009 Kearney was again subject to surveillance after he received a call from an individual claiming to be from the Continuity IRA claiming responsibility for the murder of PC Stephen Carroll, which he notified to the PSNI.
The PSNI made applications for the BBC and Kearney’s phone data but failed to ask whether there was an “overriding requirement in the public” interest to interfere with the confidentiality of Kearney’s journalistic sources.
MPS obtained geographic data about Kearney
In 2011, the PSNI commissioned the Metropolitan Police Service (MPS) to investigate Kearney following his work on a BBC Spotlight programme which reported that the Office of the Police Ombudsman for Northern Ireland had been compromised.
Under Operation Erewhon the MPS obtained Kearney’s communications data for over three months, which included incoming and outgoing calls, cell site data, and data about Kearney’s geographic movements.
“We have seen nothing to suggest that there was any overriding public interest remotely sufficient to justify either this intrusion or the wide interference, for such an extended period, with the confidentiality of his journalistic sources,” the court found.
No justification give for phone data
In 2013, the PSNI applied for Kearney’s phone data as part of Operation Samarium, an investigation into allegations that a senior PSNI manager had received corrupt payments.
The PSNI made two applications which identified Kearney as a journalist, but failed to establish any justification, let alone an “overriding requirement” for obtaining such a large quantity of Kearney’s phone data. One of the applications falsely identified Kearney as a suspect in the investigation.
A PSNI investigation in 2014, dubbed Operation Basanti, made four applications to obtain phone data relating to an individual suspected of being a journalistic source for Kearney.
Although the applications made it clear that Kearney was a journalist, they did not address the legal significance of that and failed to apply the correct legal tests before authorising the operation.
No Stone Unturned
In 2017, the PSNI commissioned Durham Constabulary to investigate alleged leaks following the broadcast of the documentary No Stone Unturned, which revealed allegations of police collusion into the murders of six innocent Catholics at Loughinisland in 1984.
Under Operation Yurta, Durham obtained a spreadsheet of communications data relating to Kearney originally obtained by the MPS in 2012 during Operation Erewhon.
The MPS accepted that it breached Kearney’s rights by obtaining and storing Kearney’s communications data and providing parts of the data to Durham Constabulary.
The IPT found that the retention and use of Kearney’s and the BBC’s data was also unlawful because it was not proportionate nor in accordance with the law.
In 2024, the IPT found that Belfast journalists, Barry McCaffrey and Trevor Birney, were unlawfully placed under surveillance by two UK police forces, which spied on their phone communications and on their suspected confidential sources.
The journalists were targeted after they produced a documentary exposing police collusion in the murders of six innocent Catholics watching a football match in Loughinisland in 1994.
Information disclosed in their case suggested other journalists, including Kearney had been subject to surveillance.
Agencies not above the law
Kearney said that the fact that the court decided to award damages reflects the seriousness of the case, including the impact of Kearney personally and the trust that sources can place in the confidentiality of their communications with him.
“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.
A BBC spokesperson said that the issues raised by this case were a matter of grave concern, not just to the BBC but to wider society.
“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,” the spokesperson added.
Commenting on the judgment, the chief constable of the PSNI Jon Boutcher said: “I accept the Investigatory Powers Tribunal’s judgment that the PSNI authorisations were not in accordance with the law and were disproportionate”.
He said that significant changes to practice and policy had been made since these incidents occurred. These included the role Investigatory Powers Commissioner’s Office in independently authorising communications data requests and scrutiny of Judicial Commissioners of requests to access communications relating to journalists.
