Northern Ireland’s police chief has apologised after the force failed to delete sensitive data from the phones and computers of two investigative journalists, despite a court ruling that the PSNI had seized it unlawfully.
Chief constable Jon Boutcher apologised after investigations by an independent reviewer, Angus McCullough KC, revealed that the Police Service of Northern Ireland (PSNI) retained copies of the data on its computer system more than six years after it should have been deleted under a court agreement.
Boutcher commissioned McCullough to carry out an independent review – which is due to report this week – into allegations that the PSNI had placed journalists, lawyers and non-governmental organisations under unlawful surveillance.
In a letter to journalist Trevor Birney in August, Boutcher disclosed that McCullough had found that data from Birney and Barry McCaffrey’s devices had been found on a PSNI computer system, in a discovery that revealed “organisational failures”.
“I want to apologise for the retention of data that should have been permanently deleted by the PSNI,” Boutcher wrote. “I fully recognise the seriousness of this error and the potential impact it may cause,” he added.
Boutcher had directed that all the data be “immediately and permanently” deleted and referred the matter to the Information Commissioner’s Office (ICO).
Birney told Computer Weekly that Boutcher’s disclosure that the PSNI continued to keep copies of data seized from the journalists on a computer system, despite an agreement to destroy the information, was deeply concerning.
“It now seems that the PSNI walked out of the court, threw the agreement over their shoulder and forgot all about it,” he said.
PSNI apologised to surveillance tribunal
Separately, the PSNI has apologised to the Investigatory Powers Tribunal for failing to disclose information during legal proceedings.
The PSNI disclosed to the court that it had applied for subscriber and outgoing call data from McCaffrey’s phone in 2012 as part of an investigation to identify a PSNI employee who may have passed information to McCaffrey.
The police force said that following investigations by McCullough, it had become aware of an authorisation to obtain incoming call data from McCaffrey’s phone that had not been fully disclosed to the tribunal during the court hearing.
“The PSNI sincerely apologises to the tribunal … for this error in disclosure. It clearly should not have occurred,” according to a letter from the Crown solicitor sent to the Investigatory Powers Tribunal on behalf of the PSNI on 18 September.
“It appears that the authorisation was mistakenly considered to have been disclosed … when this was not the case,” the letter, first reported by the Irish News, stated. “The PSNI would stress that there was no deliberate attempt to conceal the authorisation.”
The Investigatory Powers Tribunal found in April that the PSNI and the Metropolitan Police had unlawfully spied on Birney and McCaffrey, and ordered the PSNI to pay damages.
A separate IPT hearing last week revealed that the PSNI and MI5 had unlawfully spied on the phone of former BBC investigative journalist Vincent Kearney in 2006 and 2009.
Former BBC journalist Chris Moore, known for his work on the Kincora boys home, is bringing a separate case against the PSNI and MI5 in the Investigatory Powers Tribunal over allegations of unlawful surveillance.
Chief constable Boutcher reported last year that the PSNI had placed more than 500 lawyers and 300 journalists under surveillance.
The PSNI also made 10 applications to use covert powers to identify journalists’ confidential sources between 2021 and March 2024.
The PSNI recently apologised to the Investigatory Powers Commissioner’s Office (IPCO) for failing to disclose two covert operations against journalists McCaffrey and Dónal MacIntyre during the statutory inspections.
PSNI agreed to delete data
The PSNI agreed in November 2020 to pay damages to journalists Birney and McCaffrey following a ruling by the High Court that found they had been unlawfully arrested.
They were detained by the PSNI in an attempt to identify their confidential journalist sources after they had produced a documentary exposing police collusion in the paramilitary murder of six innocent Catholics in Loughinisland in 1994.
Barry McCaffrey (left) and Trevor Birney (right)
Under the settlement, the PSNI, which had arrested the journalists in a failed attempt to identify a confidential journalist source, agreed to delete data seized during the raid, which was transferred to a range of police computer systems.
Despite the ruling, Computer Weekly reported that the PSNI was unable to delete all the seized data from its backup tapes.
The latest findings from McCullough show that the PSNI also held copies of the seized data on one of its computer systems.
Birney said it was difficult to take the PSNI at its word after it had told a court six years ago that it would delete the data.
“I think that the PSNI is going out of its way to show that in terms of data handling, its processes are not fit for purpose, that’s if you take a benign view … or that somebody, somewhere within the PSNI, believes that they’re above the law,” he added.
“If you breach a court order, to my mind, you’re in contempt of court … it’s inevitable that we’re going to end up back in the High Court.”
Birney told Computer Weekly that the data seized by the PSNI included confidential sources from multiple countries, and gigabytes of data from the film production company’s server, of which only 3% had anything to do with the documentary film.
