Northern Ireland Affairs Committee
Oral evidence: The surveillance of journalists and press freedoms in NI, HC 650
Wednesday 5 February 2025
Ordered by the House of Commons to be published on 5 February 2025.
Members present: Tonia Antoniazzi (Chair); Sorcha Eastwood; Claire Hanna; Leigh Ingham; Adam Jogee; Katrina Murray; Gavin Robinson.
Questions 1-44
Witnesses
I: Barry McCaffrey, Journalist; Trevor Birney, Producer and Journalist; and Séamus Dooley, Assistant General Secretary, National Union of Journalists.
II: Malachi O’Doherty, Journalist and Author; Paul Tweed, Senior Partner, WP Tweed & Co; and Allison Morris, Crime Correspondent, Belfast Telegraph.
Witnesses: Barry McCaffrey, Trevor Birney and Séamus Dooley.
Q1 Chair: Welcome to the Northern Ireland Affairs Committee. The subject is the surveillance of journalists and press freedoms in Northern Ireland session. I welcome our first panel: Séamus Dooley, Trevor Birney and Barry McCaffrey. Could you please say who you are and why you are here?
Séamus Dooley: I am Séamus Dooley, assistant general secretary of the National Union of Journalists based in Dublin. It is the voice of professional journalism in Northern Ireland and, indeed, the UK and Ireland.
Trevor Birney: I am Trevor Birney. I was the producer of a film at the centre of our case called “No Stone Unturned”. I am a journalist, producer and director of documentaries and film.
Barry McCaffrey: I am Barry McCaffrey. I am a member of the NUJ, a journalist from Northern Ireland, and I worked with Trevor on “No Stone Unturned”.
Q2 Chair: Trevor and Barry, will you briefly outline to us the background of your case with the Investigatory Powers Tribunal?
Trevor Birney: The story goes back to about 2011, when Barry McCaffrey came to work at an online investigative journalism website that we had set up called The Detail. We began to investigate the murders of six men in Loughinisland in 1994. They had gathered in a small rural bar to watch a soccer match on 18 June 1994—Ireland was playing Italy at the world cup. There was a very famous victory that night, but unfortunately, in the village of Loughinisland, which is about 30 miles south of Belfast and the main route to Newcastle, one of our tourist towns in Northern Ireland, two UVF gunmen appeared shortly after half-time in the match and shot dead six men and injured five others.
Barry, whose family comes from that area, had an inherent interest in the issue and brought it to me. We began to work on stories for The Detail. I was also very interested in making a feature-length documentary about the case. I was working with an American Oscar-winning director, Alex Gibney, at the time, who lived not far from where the game had taken place in New Jersey. Alex and I began to work on a documentary that would become “No Stone Unturned”. It premiered at the New York film festival in October 2017, and then it came back to the UK and Northern Ireland, where it premiered at the London film festival.
On the day of the premiere, in Belfast, Assistant Chief Constable Stephen Martin released a statement that there would be a new investigation related to Loughinisland. It would, however, not be into the killers or the massacre, but into some of the documents that we disclosed in the film. From that moment on, we were under criminal investigation. Obviously for the families it was disturbing, to say the least, that the police were going to pour resources not into investigating and bringing those who committed that massacre to court—and indeed to justice—but into the journalists who worked on the film. There were documents in the film that had been sent to Barry McCaffrey in the post, detailing the failings in the original RUC investigation and confirming that there had been collusion between the RUC and the UVF killers.
Six months before the film premiered, I went to police headquarters in Belfast and met with Assistant Chief Constable Stephen Martin. I was there to advise him that our intention was to name the chief suspects in the massacre. Stephen Martin and I, along with some colleagues, had an hour-long discussion. What we were doing, as responsible journalists, was saying, “Our intention is to name these suspects. We do not know the impact it might have on their security or their safety, and we appreciate that is your role as the police force, so we wanted to give you forenotice of that intention.” We told them the names of the suspects we intended to name in the film and, indeed, we did name them in the film. We had also written to each of the suspects on two separate occasions to advise them of the film and to give them a chance of right of reply but we received nothing back. So we went ahead and named them in the film and, as I say, the same Stephen Martin then announced on the day of the premiere that he was going to investigate the documents in the film.
Barry McCaffrey: As Trevor says, we were arrested on 31 August 2018 at 7 am. Dozens of police officers appeared at our homes. They arrested Trevor in front of his eight-year-old child, Freya. We were taken away and brought to the terrorist suite in Musgrave Street in the centre of Belfast. We were questioned about the first accusation or allegation against us, which was theft, the possession of stolen documents, and breach of the Official Secrets Act. We were stripped naked, we had our DNA taken and our fingerprints, we were photographed and placed in a police cell.
It was during that time that our lawyers went to court and launched a judicial review. That really was our saving grace, because the then Lord Chief Justice of Northern Ireland, Sir Declan Morgan, ordered the police not to examine the computers, the notebooks and what they had downloaded from our central server until the judicial review had been heard. When it was heard, a year later, we won on all points. The most senior judges in Northern Ireland made it quite clear in their judgment that we had done nothing wrong. The PSNI were ordered to hand back the materials seized, and the Chief Constable announced that he was no longer continuing the investigation into us. We subsequently received a public apology from the then Chief Constable and we were awarded significant damages.
Following the judicial review, we made a complaint to the IPT. This arose out of us coming across evidence of a covert operation in place against us prior to our arrest. We wanted to establish whether that operation was lawful. We launched the complaint in 2019. Not until four years later, in March 2023, did the IPT finally came back to us. The IPT said they had been looking at our case, or investigating our case, for a number of years in secret court with the PSNI. They informed us that there were issues that they had identified of unlawful activity that the police were carrying out.
We initially thought that our complaint was really to do with Loughinisland, so if the IPT was going to tell anything, it would be to do with Loughinisland, but what they actually told us in March 2023 was that there had been a previous unlawful interception. The police had gone after my phone data in 2013; we subsequently found out through the IPT that the PSNI had also harvested my communications data in 2008, 2009, 2011, 2013 and then 2018.
It is important to point out that the 2013 surveillance of myself was nothing to do with national security. It was nothing to do with legacy issues in Northern Ireland. It was connected to an allegation that a senior PSNI employee had received unlawful payments from a recruitment agency in exchange for the awarding of a multimillion-pound employment contract, which saw hundreds of PSNI officers benefiting from lucrative pensions only to be re-employed to the same jobs within days. As I say, my contact with the police press office was not to do with terrorism. It was not to do with the controversial legacy issues. It was to do with an issue that a journalist in Manchester, Glasgow or Wales could have been speaking to their own local police force about.
Through the disclosure that we received at the IPT, we now know that the PSNI spied on myself and other journalists solely to identify our journalistic sources. When you look at the disclosure and the police notes that the IPT shared with us, it is quite clear that on each and every occasion, it is nothing to do with national security; it is all to do with trying to identify journalistic sources. Indeed, the documents show that the PSNI branded myself and other journalists as criminals. It is down in black and white. They said, “Barry McCaffrey is a criminal,” and “Vincent Kearney is a criminal.” For what? For phoning the police press office?
We now know that the PSNI spied on me five times to identify journalistic sources. That included spying on my contact with trade union officials and civil servants. They even used a loyalist death threat against me to go after my phone records. That was just an excuse to trawl through the phone records of a working journalist. That’s all it was.
Trevor Birney: We pulled a thread in making a complaint to the Investigatory Powers Tribunal, which sits in the High Court here in London. That thread ultimately revealed a very ugly picture of widespread, dragnet surveillance by police in Belfast. Ultimately the case was heard over five days in October last year, and the PSNI admitted it—the PSNI put its hand up and retrospectively said that it was acting unlawfully in spying against Barry and lifting his communications data.
In its ruling, which was delivered just before Christmas, the IPT saved its greatest criticism for Sir George Hamilton, who was the PSNI Chief Constable on the day of our arrest. On the day of arrest in August in 2018, he had signed off on what is called a directed surveillance authority, not against us, but against a senior press officer in the Police Ombudsman’s office in Belfast. The police investigation had reached the conclusion that the officer was a suspect who had handed over secret documents to Barry McCaffrey. We do not believe that to be true—let’s just say that on the record. Sir George signed off on a directed surveillance authority against that press officer, so for three months police could follow him, watch his actions, monitor his phone calls and basically put him under 24-hour surveillance.
The IPT found that Sir George had not informed himself properly in signing that directed surveillance authority, and in fact had acted unlawfully. Really, what he had done is decide that he could not put the directed surveillance against myself and Barry, so instead, he would try to set a trap by putting the surveillance on the press officer in the hope that we would meet in some café; police officers would then jump out from behind hedges, catch us all passing over secret documents and arrest us all. The IPT found that Sir George had acted unlawfully and we were again awarded damages for that particular finding.
This is like a storyline from “Line of Duty” or some Kafkaesque novel. What we discovered in the thousands of pages of disclosure was that the PSNI was seeking the support of the Metropolitan police going back as far as 2011 to surveil the communications data of journalists in Northern Ireland. Over one four-month period in 2011, over 4,000 phone calls and text messages were monitored by the Met at the behest of the PSNI. Many of those phone calls and messages were between BBC journalists—we will come on to that. Basically, a UK police force was spying on the state broadcaster, the BBC and its journalists and sharing that unlawful surveillance data with at least two other UK police forces, the PSNI and Durham constabulary, which was also involved in our arrest.
The Met has admitted that its actions were unlawful, but now, as we sit here today, we have what is called the McCullough review. Angus McCullough, who is a very eminent KC based in London, has been brought in by Jon Boutcher, the PSNI Chief Constable, to conduct a review of everything that came out of the IPT. We do not believe that that review goes far enough. We think that the remit is far too narrow and that Angus McCullough, despite being a very experienced and knowledgeable KC, basically does not have the tools to get to the bottom of what has gone on here.
We think that this is not just an issue that relates to Northern Ireland; it relates to all areas of the UK. Indeed, David Davis MP, who is here today and has supported us throughout the case, was so concerned by what he had learned in the IPT that he wrote to all police forces in the UK to say, “Can you be clear whether you have been doing the same thing as the PSNI?” As David put it, he got a “dead-bat response” that basically said nothing from all the police forces. That is very concerning, and it obviously raises suspicions about exactly what is going on right across the UK, not only in Belfast.
Chair: Thank you, Trevor. We will be awaiting the review. I will go to Gavin Robinson.
Q3 Gavin Robinson: Good morning, gentlemen. Séamus, do you mind if I come to you first? I want to ask a question drawing on the comments of your general secretary immediately after, when she indicated that the IPT process could not be the end and that there remained questions that were unanswered. Could you give us a sense of, from her perspective or your union’s perspective, what those questions that remained unanswered are?
Séamus Dooley: I think Trevor and Barry, in many respects, have answered that. First, I want to acknowledge that no journalist seeks to make headlines or be the story. Trevor and Barry never set out to be the story, nor should they have had to spend so much time of their career exposing this. From our perspective, Northern Ireland, to use the words of David Trimble, has always been a “cold place” for journalists. The shadow of Martin O’Hagan lingers over journalism every day in Northern Ireland. What we have seen here is a systematic of treatment of journalists as the enemy, and the view that journalists are criminal and any activity that seeks to shine a light, which is the function of journalists, is automatically viewed as a crime.
It is that mindset, Mr Robinson, that is the problem here. The question is, “How many more people have been under surveillance?” It is not just journalists. The fundamental issue is that the concept of the right to be represented by lawyers is undermined by surveillance of lawyers. The word that kept coming back to me as sat in the IPT was contempt. It is contempt for journalists, contempt for lawyers and contempt for due process.
I declare an interest here in that the Chief Constable established a review group—the McCullough review—and an advisory panel, which includes the NUJ, represented by myself, Baroness O'Loan, Amnesty and the Committee on the Administration of Justice. We are an expert group, and stakeholders who advise McCullough, but are not part of the investigation. I agree that that is a limited investigation. I think it will be useful and I think it deserves a fair wind, but it does not address all of the issues.
The key issue is that—and this is the important bit—it is about the broader treatment of journalists, and it is not just Northern Ireland-based. Although this is the Northern Ireland Affairs Committee, it is of concern to every Member of Parliament.
Q4 Gavin Robinson: We agreed to publish a letter this morning from the Chief Constable on this issue, and he talks about the number of applications for data that were made during the period between 2011 and 2024. Of that, he indicates that 0.5% were toward journalists. That is 0.5%. Mr Birney, can I ask you what your view is on the response of PSNI, following the judgment of IPT.
Trevor Birney: As we have said, Gavin, we welcome the McCullough review. We believe it is a first step. We met with Angus McCullough last week, and we were very impressed by his determination to excavate as much information as possible. However, we think that only a wide-ranging and judicial-led public inquiry will really get to the bottom of all of this. One of the fundamental issues we have with the review that Angus is conducting is that, for arbitrary reasons, it starts in 2011. It only covers the period from 2011 to 2024, but what we learnt at the IPT, in Barry’s case, is that there was at least one issue in 2008 where Barry’s phone data was lifted.
Let’s just be clear: when police harvest communications data—all of you will know that you have communications with journalists and speak to journalists on a daily basis—that information is now in the hands of PSNI. The PSNI know which journalists are speaking to what politicians, and we feel that that is an attack on democracy. We feel that is an attack on the protection of journalists and their sources. So we think this is not just an issue that pertains to the journalistic community; we feel that, whether its politicians, lawyers, activists and journalists, it is a much broader societal issue. That is why it needs a public inquiry,
Q5 Gavin Robinson: Just to be clear on that, there are principles around the surveillance of MPs and so on, but what you are highlighting is the incidental contact. There have been other examples—
Trevor Birney: I would not say it is incidental, but—
Gavin Robinson: The direct application is not relating to the individual who is then contacted by the person being surveilled, but there have been discussions around, for example, within another media outlet in Belfast, 16 of their journalists being subject to surveillance, when, in actual fact, they were probably incidental to the one person who was being surveilled, who was in contact with each of them. Is the point you are making around the picture that that paints and the data that is then gleaned from that?
Trevor Birney: Yes, but I know from your own party—
Gavin Robinson: I am not saying, by the way, that incidental surveillance is not consequential, but it is not the subject under investigation.
Trevor Birney: Yes, exactly. The McCullough review starts in 2011, but we think it should go back much further. The first Chief Constable of the PSNI, Sir Ronald Flanagan, was succeeded by a gentleman called Hugh Orde. Hugh Orde joined the PSNI in 2002, when there were plenty of difficult times in Northern Ireland. He had a difficulty because he was concerned that officers were speaking to the press outside of press office control, and that there was informal and formal contact, particularly between members of the Special Branch and journalists.
Hugh Orde introduced a policy that made it a sackable offence to talk to a journalist without an agreement from himself or senior officers. That was there to try to stop leaks from within the PSNI at the time to journalists. There was one senior Special Branch officer who had to leave the force after he spoke to a BBC journalist in a very notable case. We think that what happened is that Hugh Orde put in place what he thought was a defensive operation at that time, which was basically to say to all police officers, “If you speak to journalists without authority, you can get sacked.” Sir Hugh had come from the Metropolitan police, he brought that playbook with him, and he introduced it to the PSNI. We feel that what happened since then is that “defensive operation”—as it has been described by the PSNI—has become an offensive operation. It has been used against journalists.
In 2013, on a Monday morning, Barry McCaffrey called the PSNI press office and said, “Are you investigating an allegation of corruption?” It was a simple question. Within 48 hours Barry McCaffrey was turned into a criminal suspect. There is documentation that we have seen saying, “Barry McCaffrey is a criminal suspect, and he is mixing with other criminal suspects. We now need to lift three weeks of his incoming and outgoing calls to find out who the source is.” Indeed, it was a DUP member of the Policing Board that raised concerns about that corruption. We discovered that he was concerned that the PSNI had not been clear with him. So that is involving an elected Member of the Assembly in Northern Ireland, who was raising concerns.
The PSNI turned Barry McCaffrey into a suspect. We feel that that defensive operation was an offensive operation. If when any journalist calls the press office, they are turned into a criminal suspect to find out who their sources are, you have got to ask yourself why and how that has happened. That is why we think that with a public inquiry we can really get under the bonnet and to grips with the culture that led to that suspicious activity.
Q6 Gavin Robinson: I do not mind whether Mr Birney or Mr McCaffrey answers my next question, and we will unpack some of the other issues in the rest of this session. You have referred to correspondence from our colleague Mr Davis to forces throughout the United Kingdom that have been operating. Some of this relates to legislation from 25 years ago—the Regulation of Investigatory Powers Act and the subsequent legislation since. From your experience, in the absence of a conclusion to the McCullough review and to whether there will be further inquiries, what legislative steps or changes do you think need to be made by this Parliament to ensure that the type of surveillance you have experienced is not repeated?
Barry McCaffrey: I think what is in place, but what has been abused, is the judicial oversight. There are guidelines as to what the police should and should not do—what is lawful and unlawful. The judiciary is the proper process to ensure that the police are acting lawfully if they are conducting surveillance on journalists or whoever else it is. What the police have done time and again is try to bypass the judiciary—they have abused the system. In answer to your question, the police need to be held to account and to follow the rules. Because it was not us who broke the law. Confidence in policing has been seriously undermined and damaged. Trevor didn’t do it. Séamus didn’t do it. I didn’t do it. It was the PSNI.
Q7 Gavin Robinson: I do not want to put words in your mouth, but that suggests that the law as it stands is right, but it was not followed, as opposed to suggesting that there are changes required within the law.
Barry McCaffrey: I believe that the current legislation needs to be strengthened. It needs to be further strengthened because as it stands the PSNI is ignoring it.
Séamus Dooley: I think the law is there. I think it is quite interesting that journalists are treated as criminals. Criminals are people who break the law. This practice of breaking the law and sort of looking for forgiveness afterwards is not acceptable. The culture will only change when there are consequences for those who break the law, and that includes members of police forces who do not adhere to the rule of law. It is completely contradictory that those who are entrusted with protecting citizens abuse and break the law without consequence.
The NUJ has always opposed the IPT. It was a very useful exercise. To borrow Trevor’s metaphor, it is the classic thing of, “What a tangled web we weave,” and there was a practice to deceive. The reality is that the IPT process itself is a secretive process. It is a mysterious body. It has been useful, but, even with the title, it was established to deal with terrorist offences. The only way we can get the truth about the treatment of journalists is through going to the IPT, and there is something really rotten about that.
Trevor Birney: The constant in this is that there have been various legislative changes over the period of time; we are talking about a 20-year period here. There have been various changes to RIPA, GRIPA and the IPA, but the one constant we have seen, right up to 2018, is an attempt to get around that legislation. That is what the IPT found when Sir George Hamilton signed off on the DSA—that he either did not inform himself properly or indeed ignored the legislative framework in which he should be working when he did that.
Q8 Gavin Robinson: While this session is rightly focused on PSNI, we had to mount a rebellion a number of years ago around the extension of these powers to groups as far-ranging as the Food Standards Agency. To be clear, it is not just the police.
Barry McCaffrey: Just to come back in, we found out that in 2011, the Met intercepted 4,000 text messages and phone calls from journalists in Northern Ireland. There is no police investigation into that. The Met was found to have acted unlawfully by the IPT in that case, but there is no police investigation into what the Met did. The Met was spying on the national broadcaster, and nobody is investigating it. Nobody is questioning how and why this was allowed to happen.
The courts can look only at individual cases. In our case, it was very restricted in what it could find. It is only Parliament, yourselves and a public inquiry that can deal with policing policy, its operations and the attacks on press freedom.
Adam Jogee: Thank you for being here. Thank you for bringing the sun with you, which is a very apt reflection.
Claire Hanna: It is the best disinfectant.
Q9 Adam Jogee: Indeed. We are shining a light on these very important issues, so that is an important bit of symbolism that will no doubt feature in one of your films before too long, Trevor. I also want to thank you for your opening remarks and for the thorough setting out of the experiences you have been through personally and the impact on your family and, more generally, on your profession for simply doing your job.
I have a simple question in relation to the Policing Board and the PSNI report that was issued in June 2024 alongside the McCullough review. The Chief Constable published this report to the Policing Board on the use of covert powers by the force. Can you give us a flavour of your observations and thoughts on that report?
Trevor Birney: We welcome the transparency in Jon Boutcher’s report and what he said, but obviously it leaves a lot of questions unanswered. There were significant figures around journalists. There were 300 incidents involving journalists and more than 500 involving lawyers, and that is what Angus McCullough is obviously hoping right now to bring further light to in terms of what lies behind those figures and what those incidents were about.
Jon Boutcher has tried to respond to the public concern of the disclosures from the IPT. The document was incredibly detailed and an important contribution, but again, I do not think that it answers all the questions. Jon Boutcher has to wait until Angus McCullough delivers his report. He has a responsibility in ensuring that Angus McCullough gets access to every file and every record within the PSNI and that there is no obfuscation or delay and no attempt to prevent Angus McCullough from getting information that he requests.
We understand that Jon Boutcher has ensured that he will and assured Angus McCullough that he will, but we feel that without the ability to compel witnesses and documents, we have got to trust the PSNI. But if you had been a witness to our cases up for judicial review at the High Court in Belfast in front of the then Lord Chief Justice or at the IPT over the course of the last couple of years, you would have seen an incredible amount of delay, obfuscation and denial by the PSNI in those cases. Really they had to be brought to the courts kicking and screaming, and they did not hand over the disclosure. In fact, it was Durham police force, who they had brought in to investigate me and Barry, that delivered the most important disclosure in that case. Much of it was PSNI files, but the PSNI had not delivered or disclosed them. It was Durham that did that in the IPT.
What we are saying is that we are coming from an experience in which the PSNI has not been open and transparent. We welcome what Jon Boutcher did in that report. We welcome bringing in Angus McCullough. We simply feel that you cannot have somebody marking their own homework. You need an outside body, whether that is the Northern Ireland Affairs Committee or a public inquiry, to hold the PSNI to account.
In terms of some of the information we found in the disclosure, Séamus used the word “contempt”, and there was an attitude of contempt towards the Police Ombudsman. When the people of Northern Ireland voted for the Good Friday agreement in 1998, subsequent to that there was a review of policing, and that led to the establishment of the PSNI, but it also led to the establishment of institutions of accountability. You had a Police Ombudsman that you could take a complaint to, and you had the Policing Board, where you had elected representatives and members of the public holding the PSNI to account. In the disclosure documents we saw a police officer write, “We will only give the Ombudsman the documentation that we feel is relevant.” That to me is contempt for the Police Ombudsman and something that would concern anyone in Northern Ireland about the checks and balances within policing.
The Policing Board, having sat throughout the period we are talking about, clearly knew nothing about this spying operation on journalists. You have to ask yourself, what is the point of a Policing Board if it is not getting information from the very organisation it is there to hold to account and that we are putting our trust into? There is an issue of contempt shown towards elected representatives and the Police Ombudsman’s office, and that plays a critical role in Northern Ireland. That is why we have gone to the space of a public inquiry, because we feel it is about the culture and the contempt shown towards journalists, lawyers, activists and our institutions of state by the PSNI.
Q10 Adam Jogee: Do either of you want to comment on this?
Séamus Dooley: I would just wholeheartedly agree with Trevor on the unacceptable manner in which information was released to the IPT. The PSNI engaged in what I would describe as a form of judicial striptease. Every day you walked in there was a new little piece presented. I am an experienced journalist, editor and court reporter, and I have never seen evidence presented in that absurd manner.
I believe that the McCullough review is a worthwhile exercise. I think it will be useful and will form the basis for further investigation. I would not underestimate the difficult task of restoring confidence in a system that has been shattered by the behaviour revealed at the IPT.
Adam Jogee: I can tell that you are a man of the spoken and written word, and now “judicial striptease” has been written into the books—twice over.
Barry McCaffrey: The only thing I can add is that what probably angers us the most is the whispering campaign that some within the PSNI are continuing to this very day against Trevor and I, and against journalists in particular. When we were first arrested, someone within the PSNI leadership gave a briefing that anybody who supported us, whether it was the Irish Government or political parties or trade unions, would be left with egg on their face.
The phrase that we kept on hearing again and again when meeting different parties and organisations was, “The PSNI have told us that if we support you or support press freedom, we’ll be left with egg on our face”, because there is some other motive going on here. We are hearing the same thing again eight years later.
The PSNI have a whispering campaign going on; they are only telling half-truths. To me, that is sad. We have confidence in Jon Boutcher—we believe that he is a decent and honourable man—but the PSNI have to take a decision about whether they keep on digging this hole that they are getting themselves into, with, as Trevor says, this mire of obfuscation and withholding and a total disrespect for democracy. Jon Boutcher has to decide today that this has to stop. Journalists are not criminals.
Q11 Adam Jogee: Trevor, you said that the initial report from June ’24 left more questions unanswered than answered. Can you give us a flavour of what those key questions would be? You have touched on it, but could you give us a clearer idea, because that would help influence how we respond?
Trevor Birney: Ultimately, I think Angus McCullough would agree that it was an arbitrary decision to set 2011 as the start date for his review. We feel that that is not going to get to the bottom of where the spying operation emanated from, who ordered it and why, and indeed the culture that led to the incidents that we have seen at the IPT involving Barry and myself. Where did all that start from? I think that the 2011 date will not give us the answers to those questions. We want to know what happened prior to 2011.
The other key question is about the role of other institutions of the state outside the PSNI, because the McCullough review can look only at the actions of the PSNI. There was a morning at the IPT hearing in October when we discovered during a disclosure that a then BBC journalist called Vincent Kearney had also been subject to surveillance at the same time as Barry McCaffrey back in 2011.
The BBC had applied to join with us and for that case to be heard at the same time. There was then an intervention on behalf of the security services—MI5, GCHQ—by a barrister, and he told the court that MI5 would need a number of months to unearth the documentation it had relating to BBC journalists in Belfast and that they would need to hire a team of barristers, who would need to be security vetted, just to examine the documentation.
The indication to the court, obviously, was that there was an enormous amount of information that MI5 held on the BBC and its journalists. MI5 asked the court to remove the BBC from our case while it continued its research and the IPT agreed to that request.
The questions raised from that particular part of our case are: what is the relationship between MI5 and the BBC? What do BBC journalists know about that relationship? How much data and information are MI5 getting access to with BBC journalists, who are obviously working in very sensitive areas, dealing with very sensitive issues and talking to individuals from right across the spectrum, not only in Northern Ireland but right around the UK and indeed the world? That is another question. Unfortunately, the McCullough review cannot give us the answers to that.
What is the role of the Met? What is the role of MI5 and GCHQ? What are they doing in terms of journalism, lawyers, activists and others? Those questions are fundamental. The other question, which Barry can probably address, is the issue of intercepts. That is not going to be dealt with by the McCullough review.
Barry McCaffrey: As we understand it—I think we are correct—intercepts are when police surveillance is live and ongoing, so police can read your emails, read your phone messages and listen in on your calls. Angus McCullough cannot investigate intercepts. He cannot make any public statement on intercepts. It is an important part of his review—are journalists being spied on or are their phone calls being listened to on a daily basis? The McCullough review cannot tell us that. Even if it was to say, “No, it is not happening,” he cannot say that. We believe that that is a major black hole in the review, through no fault of Mr McCullough himself. Again, it is the terms of reference.
Trevor Birney: As Gavin was touching on, a lot of what we found at the IPT was simply that the police were able to see who journalists were speaking to—that there was a phone call between myself and Barry, or between Barry and a BBC journalist. They were able to see that or all of Barry’s phone records. What they were not doing—what we did not see any evidence of at the IPT—was listening to what was being said in those calls, and indeed they were not looking at emails, text messages or WhatsApp messages.
Even if they were doing that and it was lawful, we would not have been told about it. If it was under the legislative framework of the PSNI, and they were following the letter of the law and listening to phone calls, we would not be told about that. I think we should be told if those types of intercepts are happening. The McCullough review will not go into that territory, and we think we need to go into that territory. We need to know whether phone calls between journalists and their sources are being intercepted and listened to for whatever reason, because it is about the protection of sources.
The protection of sources is a very important foundation pillar in our society. It is in the NUJ code, and we have all benefited from it in the UK. Today, many of my phone calls start with, “Is it safe to speak with you? Can I talk to you privately without having any concern that somebody is listening to this?” I really cannot give any source the guarantee that the police are not listening, having come through the experience of the last few years, and journalists throughout the UK have to remove that burden. They cannot have the burden on them that, when they speak to a source, they are being listened to or their data is being intercepted.
Q12 Adam Jogee: Particularly when we call out that behaviour overseas.
Trevor Birney: Indeed.
Séamus Dooley: The right to protect sources is fundamental to the practice of journalism, but the right of so many professions to practise is based on trust. If a lawyer cannot speak to a client because they may be under surveillance, or if a politician may be placed under surveillance, that presents a fundamental problem for democracy. The very possibility of a thread being compromised inhibits the practice of journalism and is bad for democracy.
Trevor Birney: Journalism has enough problems today.
Chair: Trevor, you referred to a case that is before the tribunal but is not sub judice. I just want to tell you that as Members, we are exercising discretion during this session.
Q13 Katrina Murray: Gentlemen, thanks very much for coming in. You have addressed some of what I will be asking. In my life before coming here, I spent a lot of time training new trade union stewards, and one of the things we always taught them about was data—how do you make sure you use the data? Particularly when using an employer’s system, you had to be careful, because even though there were data-sharing agreements in place, there could be a route for employers to access that.
One of the justifications used by the PSNI in the 2014 report for accessing communications data relating to journalists was the suspicion that it was police officers and police staff who were the sources. Therefore they were potentially looking for that. I very much accept the position in relation to the NUJ code. What would your response be to that justification from the PSNI?
Barry McCaffrey: As Trevor said, this defensive operation was in place, and, on face value, that is great. If a police officer is acting unlawfully or doing something that is wrong, such as leaking information to a journalist, then yes, that is wrong.
In our experience, what we have found from the IPT is that, as Trevor said, in 2011, on behalf of the PSNI, the Met intercepted 4,000 phone calls and text messages belonging to 16 journalists. When we looked at that data, they were not cases of calls from a police officer to a journalist; it was calls from a journalist to a journalist. Those 4,000 text messages or phone calls were journalist-to-journalist. That is not a defensive operation; that is an offensive operation. That is spying on journalists to identify their sources.
Maybe, when the defensive operation was initially set up, they did play by the rules, but by 2011, they were breaking the rules on an industrial scale. That 4,000 was not just an accident; accidents do not happen 4,000 times. So, no, we do not believe that the defensive operation was to identify rogue police officers; it was to identify journalists and their sources.
Séamus Dooley: Could I just say that, if the problem is so great that you must have that many rogue police officers, the issue may be one of training and discipline within the force, rather than a problem with journalism? The reality is that this issue of what is sometimes called incidental surveillance—almost collateral surveillance—is a problem that organisations such as the NUJ and Liberty have identified in not just Northern Ireland; this is a problem throughout the UK.
It beggars belief that we could take this seriously. I mean, if we look at what we are talking about here, you already know that a press officer is going to talk to journalists—you know, it happens! Therefore, if you put a press officer under surveillance, well, if they are not getting calls from journalists, they probably shouldn’t be press officers.
Q14 Claire Hanna: Thank you all for your evidence. I know that people will find a lot of this alarming, but it is important to resolve it for the culture of lawfulness and trust that we are trying to create. A lot of what this Committee will be doing within this mandate is looking at issues relating to the suppression of information about the legacy of the conflict. Do you think that there was a culture within the PSNI about suppressing information about failings during the conflict, and that that is something that has bled into operations relating to everyday and current-day policing?
Trevor Birney: If we take “No Stone Unturned” as evidence, or a case in point, the families of those who died in June 1994 obviously wanted to see justice for the deaths of their loved ones. They put their full faith in the RUC that it was indeed going to leave no stone unturned in bringing the perpetrators to justice. But, year after year, those promises and commitments fell short—obviously—and the families grew more and more frustrated at not seeing somebody being held to account for the murders of their loved ones.
The families ultimately turned to the Police Ombudsman and made a complaint in 2006. They simply said, “Could you tell us why the killers are not in prison?” and an Ombudsman investigation began. One report was delivered in 2011, and it was not found to stand up, so it was withdrawn.
Dr Michael Maguire, who had been with the criminal justice inspectorate previously, was appointed the Police Ombudsman for Northern Ireland, and he began a new investigation into the Loughinisland massacre. In June 2016, he delivered his findings, which found that collusion was a feature of the Loughinisland massacre. That meant that the RUC had colluded with the UVF basically to ensure nobody went to prison after that incident.
Dr Maguire delivered that report. Some retired police officers in Northern Ireland took great umbrage at his findings and went to court to overturn his report or have it thrown out. That failed. We were then working on a documentary in parallel to the legal cases that were being heard. It is quite clear that when the retired police officers failed to have the Maguire report thrown out, that happened in parallel with the decision to arrest myself and Barry.
In April 2018, we can see the genesis of the operation to arrest us. We can see in the disclosure of documents that documents were being exchanged that said, “We want to arrest them,” and they began to put the structures in place. It was not that it was, as Jon Boutcher has said, a fast-moving situation on the day of our arrest in which decisions were being made; it was very meticulously planned.
We feel that what was going on there was a further attempt by the PSNI to undermine the Ombudsman and his report by getting into our offices and homes and attempting to find information or evidence that could link us to the Ombudsman. We feel that our arrest was a direct assault on an office that has been an institution of accountability in Northern Ireland. We feel that the PSNI were really trying to prevent Michael Maguire and the Ombudsman from bringing forward further reports on allegations of collusion in Northern Ireland. We feel that there was an attempt to try to stymie or frustrate the Ombudsman, whose office was, as we now know, a focus of the investigation.
Here you have an institution of the state that is set up to hold the police force to account, and the police force is putting that institution under investigation and putting directed surveillance on to a press officer who works for that institution. Can you understand the significance of that, if it were to happen in any other part of the UK? That is really all to do with the legacy in Northern Ireland, and all to do with those who are trying to deny the history in Northern Ireland and protect the dominant narrative in Northern Ireland, which we feel “No Stone Unturned” challenged.
Q15 Claire Hanna: I note from your comments that you have some confidence in Jon Boutcher’s fresh approach and some of the processes that have still to run. Obviously, the Policing Board was a big part of the new beginning to policing and the change that needed to be created. How would you assess that? Have they been robust enough in their accountability role on these issues?
Barry McCaffrey: It is difficult to say, unfortunately. Who is to blame? Is it because the PSNI is showing utter disrespect and contempt for the Policing Board? Is it that the members of the Policing Board are not holding them to account? The Policing Board’s raison d’être is to hold the PSNI to account, but that is not happening. Now, who is to blame?
Can Jon Boutcher change that culture and turn this big juggernaut round so that the PSNI sees that the Policing Board, the Police Ombudsman, lawyers and journalists are not the enemy? As Trevor says, as part of the disclosure, we saw that a policeman wrote in his notes, “We only tell the Police Ombudsman what we want them to know.”
We believe the same thing is happening with the Policing Board: key information is being withheld from the Policing Board and—to be honest—the PSNI isn’t being truthful. As Trevor says, for eight years we have had to drag them kicking and screaming into court. We have had to drag out every morsel of truth. They have fought against it, and we believe the Policing Board is victim to that same obfuscation.
Q16 Claire Hanna: You have touched on this, but do you feel there is enough accountability and oversight for other police? We have the Policing Board, imperfect though it may be; is there enough of an accountability mechanism for some of the other forces involved in this?
Trevor Birney: If they are properly operational and the PSNI is being transparent, is being held to account and allows itself to be held to account, we have very strong structures in the Policing Board and the Ombudsman’s office, but both of them need to be allowed to get on with their job. The PSNI has to understand the relationship that it has with those institutions and the importance of the public having faith that those institutions are getting questions answered.
Our experience is that this operation has been going on for many years, and it seems that the Policing Board is only now waking up to what actually has went on. We saw, after the judicial review, the appearance of Sir George Hamilton and his counterpart from Durham constabulary, and we saw in open session the Policing Board asking questions of the two Chief Constables. If that was accountability, it really was quite shocking. It was, in our mind, a real failure to appreciate just the severity and the significance of what had happened at the judicial review. It is worth watching back that appearance by those two officers, because it felt as if for them it was a day out and nothing to be too worried about.
Séamus Dooley: On that, the distinct lack of humility and the failure to understand what had happened at the IPT were stunning. In that sense, it is new beginnings but it is the same old story. The phrase “Culture eats strategy for breakfast” comes to mind. The danger is in believing in one person—one person, even a Chief Constable who clearly, in my view, is on the right things, cannot change a culture. At the heart of this is the priority that has been consistently given to dealing with journalists and people who are asking awkward questions, and giving that a priority, rather than the core function of policing, which is actually to solve crime. The priority was given to an investigation into the work of journalists, rather than into the very scandal that led to the work of the journalists in the first place.
Q17 Claire Hanna: Finally from me, because I am aware of the time pressure, you obviously won your judicial review against the seizing and raiding of your data. What is the status of that data at the moment? Has it been vindicated, or does it still exist within the PSNI?
Trevor Birney: An agreement was reached with the PSNI after it advised the court that it would cost a significant amount of money to the public purse to remove the data that it had backed up on its systems in Belfast. It was agreed by our legal teams that there would be a series of checks and balances to ensure that the data was not accessed.
Again, at the IPT it is a bit of an issue now, where they are dealing with the same thing. The data that was taken from Barry’s phone on numerous occasions is still backed up on the PSNI systems, so the court is trying to resolve that. That is a very live issue.
So yes, it is clear that the PSNI has something of a historical system. It has not updated its systems in Belfast. It was going to cost a significant amount of money to allow it to have a more flexible system so that, in cases like ours, it could simply go in and remove the data and dump it, or go up into the cloud and delete it. It cannot do that because, we understand, it is backed up on microfiche and it is mixed up with—that is a very rudimentary explanation of exactly what is going on, but in my mind, they simply cannot come in, cut a piece of tape and take it out, because it could ultimately undermine the whole back-up.
So there is a question, which I am sure Jon Boutcher will answer in the future, about the need to update those systems and ensure that information it should not have is expunged from the record. We feel it is very important for public confidence that that is addressed at some point in the future.
Claire Hanna: There are a lot of issues we will want to come back to.
Barry McCaffrey: To reiterate what Trevor says, the courts have ruled that the PSNI unlawfully obtained this data. The courts have ordered them to delete the data, and the PSNI are saying, “It’s going to cost us £5 million. We can’t do it.” How many other police forces in the UK are in the same position? We do not know: maybe there’s none, but maybe there’s lots. This is data that would have been unlawfully obtained if it was happening in a private company, the Health Department or whatever. It is not acceptable that we are being told, “Oh, you have to wait 10 years until we decide that we can get rid of this stuff.”
This is a major breach of GDPR and data protection, and it is being allowed to continue. It is frustrating for Trevor and myself, but our legal advice was, “There’s nothing you can do. The courts aren’t going to order them because it’s going to cost so much money.” So the most that we could do, or our lawyers could argue, was that there had to be protections and safeguards that the PSNI were not going to be able to access this without the court’s authorisation. But it is not a practice that should be allowed to go on.
Trevor Birney: Just to clarify something and to give the context around that. On the day of our arrest, the PSNI seized our phones and our laptops, they took my daughters’ phones and my wife’s phone, and took a USB key that had my daughter’s homework on it. They then went to our offices and they plugged their computers into our server to, according to the warrants, remove all the data relating to “No Stone Unturned”. The data relating to “No Stone Unturned” made up less than 6% of that server; the PSNI downloaded 100% of the server, so they had access to every investigation the journalists were doing, all our documentaries, all our accounts—everything.
They knew they were taking everything: they were walking past desks and taking notebooks—journalistic notebooks—that related to stories such as clerical abuse within the Catholic Church. It was pointed out to them that this has nothing to do with “No Stone Unturned”, but they said, “Well, it may be of interest, so we’re taking it, thank you very much.” It is quite clear that they had extended this way beyond the warrants they had been granted—those warrants were granted unlawfully, obviously.
That information all made its way into the PSNI’s hands. It was all held by the PSNI for several months. After Sir George Hamilton and the judicial review decision, they handed back all the physical hardware—all the computers and laptops—and everything came back, but everything that was backed up stayed.
Q18 Sorcha Eastwood: Back in the day, whenever people’s houses were raided by HMSU and others, they went through the kids’ pants drawers, they went through everyone’s drawers, they went through the kids’ clothes, they went through the wife’s clothes. Are you telling me that whenever they went in and took that data, they took your daughter’s information about her schoolwork and her wee life?
Trevor Birney: Yes, she had a little pink phone—my 14-year-old daughter had a pink iPhone—and, yes, they took that phone and they removed all the data from it.
Sorcha Eastwood: I don’t even know what to say to that.
Q19 Leigh Ingham: Thank you so much for your evidence, which has been really candid and really illuminating. I will keep this question brief, and it is specifically to you, Séamus, if that is all right.
In 2023, the National Action Plan for the Safety of Journalists said that the PSNI had “made transformative progress in addressing journalist safety in Northern Ireland.” Yet last year Amnesty International published a report stating: “Journalists in Northern Ireland—particularly those investigating illegal paramilitary and criminal activity—have been operating in a climate of fear for years, facing all-too-regular threats”.
First, how common are threats towards journalists in Northern Ireland, and how much of it is a worry for you? I will give you my follow-up now, so that you can wrap up. What would you like to see the UK Government do to ensure the safety of journalists in Northern Ireland?
Séamus Dooley: I know time is short, but just to say that threats against journalists—you will hear this in the next session as well—are a reality in Northern Ireland. I would think that the scale of it is underestimated, and one of the problems we have as a union of journalists is to convince people to report threats, because there is a generation of journalists in Northern Ireland, following the death of Martin O’Hagan, who almost think that threats are part of their professional life.
Although there was an attempt, as part of the national strategy, which was a good campaign, and there has been improved liaison with the PSNI on occasions, I would describe it as hit and miss. The reality is that a number of journalists have received death threats. With one member we had a threat against not just her but her baby. We have had situations where people’s lives have been threatened. Lesser threats are sometimes seen by journalists as routine. The National Union of Journalists are very clear: we always advise people that they need to report threats in all cases.
In terms of what you can do, there are a number of things. One area that is a real concern, apart from the physical threat, is the failure of tech companies to deal with online abuse and threats. That threat is real and there is a huge level of misogyny. Female journalists in particular have been the victims of it, as well as female politicians, as you will be aware. One of the big challenges is the issue of online abuse.
Chair: Thank you very much Séamus, Trevor and Barry. It has been an excellent session. We will now change witnesses. Thank you very much for your time.
Witnesses: Malachi O’Doherty, Paul Tweed and Allison Morris.
Q20 Chair: I would like to welcome the second panel. We have Allison Morris, Malachi O’Doherty and Paul Tweed online. To open, please say who you are and what your role is.
Allison Morris: I’m Allison Morris, a crime and security journalist. I currently work for the Belfast Telegraph.
Malachi O’Doherty: My name is Malachi O’Doherty. I’m a writer, author, freelance journalist, occasional broadcaster and commentator. I am largely retired, since I am in my mid-seventies practically now. I write books about Northern Ireland and about myself. I write two weekly columns, one for The Irish Post and one for the Belfast Telegraph. I appear frequently on radio and television programmes in Northern Ireland.
Paul Tweed: Good morning. My name is Paul Tweed. I am media lawyer, acting for claimants and defendants in the jurisdictions of the UK and Ireland. I act for numerous MPs, MLAs and TDs across the political and religious divide. I am based primarily in Belfast, although most of my work is in Dublin, which is where the social media platforms have their European, Middle Eastern and African headquarters.
Q21 Chair: Thank you. Allison, how common are threats made by paramilitaries or others towards journalists in Northern Ireland?
Allison Morris: In my case, very common. Not very many journalists do what I do, as a crime and security journalist. There would not be a great deal of people who do that, or who would want to do that, for very good reasons. People would be smarter than to want to do what I do.
If I go back through the last 12 months, when the police deliver a threat to you and tell you—I am taking away online threats, because that’s a daily occurrence; I have gone beyond even concerning myself about that. When we talk about TM1s, which are threats from either paramilitary groups or organised crime gangs, in the last 12 months I think have had either eight or nine. That has included, on occasions, police at my door at half 2 in the morning, searching for bombs under my car. A device actually exploded in my street.
I have been told I was going to be shot by dissident republicans on my way into work, and given very specific details as to where I was going to be targeted. I have had threats from loyalist paramilitary groups and from a well-armed organised crime gang that has been responsible for three murders. Sometimes they will happen in quick succession—I will maybe get two or three in a month—and sometimes you are working on an investigation or story, and you can almost sense that when you get to the end of it, you will get a death threat, because of the nature of what it is you are working on.
For me, it has become something that you have to find a way to live with. It is a job, and it is something that I have chosen to do. I suppose I try to rationalise it: I get to go home to my very heavily fortified house at night, whereas the people I speak to, who are often speaking out against paramilitaries, do not. They are the people I take my hat off to. They show real bravery, compared with what I do as a choice. It is something I have chosen to do.
During the lockdown period, it was very difficult. I got two very serious threats from a violent, armed dissident republican group, and then quite quickly after that my name was painted on a wall with a threat.
I will just quickly go back to what the previous panel were speaking about. I also have lodged an IPT complaint in relation to surveillance on journalists and the surveillance that I believe was on me. I do not mean to keep going back to George Hamilton, the previous Chief Constable, but I believe quite intensely that, around that time, that would have gone beyond checking phone records. The people I deal with as sources, as you can imagine, are not that keen on speaking on phones. I am meeting these people in certain locations.
Trevor and Barry raised this issue, and several of us, including other journalists, have lodged these complaints. I have also made a submission to Angus McCullough. I made my own, obviously; I dealt with my own sources and tried to get to the bottom of how deep it went before I made the complaint, so that I would know what I was complaining about. I have been told by a very senior former policing source that the intrusion on me went beyond that, to intrusive surveillance, as well as the use of covert human intelligence sources to spy on me. To get a RIPA warrant to spy on a journalist is a very high bar—you can imagine that not everyone is going to sign off on that—but to get a warrant to put that kind of intrusive surveillance on someone who might be around me or someone I might be dealing with is much easier. I believe that the surveillance on me went beyond that.
How does that put me at risk? Through solicitors and other people, I know that when some of the people I might be writing about are arrested, stories that I have done, sources I have met, where I have met these sources and what may have appeared in the paper has been put to them during interview. Now, these are very dangerous people. Would they think that that was a result of police surveillance, or does that put me under question, and put me, my children and my life under threat? In Northern Ireland, if it was considered that I was dealing with the police and passing on information that I knew, that could put me at really serious risk, and that is being said to people in interview. These are things I know as fact.
The problem with the IPT is that, as Trevor and Barry pointed out so ably, it takes such a long time. They do not have to give you a timeframe. It could take from now to forever for me to find out the extent of this. I also think that it does not go far enough, and that we do not know the role of MI5 in monitoring journalists in Northern Ireland. All this adds to the threat on me. I am getting threatened by paramilitary groups, but many of those paramilitary groups also have informers who are working for the police at the same time, so where is the crossover in terms of the surveillance on journalists, the handling of informants and what that does for the safety of people, like myself, who work in very specialist area of journalism?
In the month of December last year, I got three TM1s. As I said, police have been at my house at all hours of the day and night. I am lucky that I have very understanding employers in Mediahuis. But the windows in my house are bulletproof. The door of my house is bulletproof. I have cameras. I have alarm systems. I have GoPros on my car, in case anyone interferes with it when I am sleeping. These are not the kind of precautions you imagine someone working as a journalist in 2025 should have to take.
Q22 Chair: Allison, you did say that you chose to do this job.
Allison Morris: I do choose to do it, and you would probably say, “Why?” but it is actually a very fulfilling and worthwhile job. It does not sound like it after what I have just said to you, but there is a good part to it as well.
Q23 Chair: As politicians, we understand the impact that your job has on your family, your friends and your ability to do your job. What has that impact been for you?
Allison Morris: My children are grown up. I actually had a conversation with one of them last night, who said they have a really unhealthy relationship with fear. Police would come to the house, and the kids would say, “What’s wrong?” and I went, “It’s fine. It’s all right. It’s a threat, but it’s not real; it’s just people trying to scare you.” She says, “Does that mean we think that all threats aren’t actually real?” They have grown up with it. They are now adults, and they take it with a pinch of salt. In fact, they call my house Castle Grayskull because there is that much security around it.
In terms of the impact, I have elderly parents, and I just do not tell them any of this. You keep a lot of it from people. I like to think that I am quite a tough and resilient person, but the other week I was sitting in my car, plugging my phone in, and I saw a person coming up on the inside wearing a high-vis vest and a snood. I started screaming, and it was the Amazon guy trying to deliver something to me. He said, “Why are you screaming?” I said, “I thought you were going to shoot me.” He said, “Why would I want to shoot you? I’m the Amazon guy.” Even though I say these things do not bother me, clearly at the back of my head there is the thought that at one point this is how I am going to go—that I am not going to die of natural causes.
Journalism in Northern Ireland is a really unique place to work. It is a privilege to be able to do what I do. It is not just because we are dealing with the legacy of the conflict, but many of those paramilitaries have now turned into organised crime gangs and are involved in all sorts of other criminality. There are not that many of us left who came up through that period, so I have an area of expertise that cannot really be replicated. I would like to use that to the best of my ability until I, like Malachi, am semi-retired or retired—maybe I can get normal windows in my house at that point.
I do think that the PSNI under Jon Boutcher has made a real effort. Prior to that, Barbara Gray, who is now with the Met, had made a real effort in terms of threats to journalists and had reached out to us. Previously, if you received a threat, two uniformed police officers called at your door with a TM1. They either gave it to you or just read it out to you. It would say, “We believe you are going to be shot some time in the next three days, either at your home or your work.” You could ask those police officers questions, but they would not be able to answer them, because they are literally just handed something and told, “Go and deliver it to that person.” Finding out where that threat came from was really difficult. In the past, the police were not willing to explain to us where the threat came from, because it would have been intelligence-led, and they would not have wanted to give you that information.
Now, the PSNI has a special department set up that deals specifically with threats to journalists and public figures. They will contact you. You will get a detective, and you will be able to find out whether the threat came through intelligence or was phoned through to Crimestoppers. Clearly, I am not going to take a threat that is phoned through to Crimestoppers as seriously as one that comes through intelligence. But there is an issue where police have the intelligence that a journalist is going to be threatened, but they do not act on it, because to act on it would put their CHIS—their informant—at risk, and therefore their safety is prioritised over mine, almost. Nobody has ever been arrested or convicted in relation to any of these threats.
Q24 Leigh Ingham: Thanks very much for giving evidence today. I want to speak to the threat and intimidation faced by female journalists in particular. You have talked about some of the things you have experienced. Could you speak about the experience of female journalists in particular?
Allison Morris: A lot of the abuse that journalists get is universal—it will go across the board—but the abuse that I get compared with my male colleagues is very gendered. Séamus mentioned the social media companies and their lack of accountability. Do we really think that is going to get any better under the current regime? No. We can give up on Twitter, X or whatever you want to call it monitoring this. It is very specifically gendered. It is always sexual. Some of it can just be vulgar abuse about your looks or things like that, but a lot of times it is very sexual and very misogynistic. I have noticed that actually that element of it has got worse.
We have seen the rise of what we would call the far right in Ireland, which has put a new element on it that is very gendered. You will have groups of people who insist that I am somehow responsible for covering up hordes of people who are coming here and murdering women, and that the figures just do not add up to that. They will accuse me of that, and then it will be, “I hope that you get raped or your children get raped, and then you’ll know all about it, for covering all of this up.” That has actually made it worse. I've noticed that they would probably have been barred from most social media platforms, but now that is being allowed—it is now called “free speech” to say you deserve to be raped.
A lot of that misinformation is being directed very deliberately at journalists to undermine you. That is part of, I suppose, the Trumpification: calling it “fake news” and saying that they are all liars then it does not matter what they write as nobody will ever believe it. That has changed it. A lot of that is extremely gendered in the way that it comes to me. It is from dozens and dozens of fake accounts, and I do not even know where most of them are based. I suspect that some of it is hordes of accounts based in America or other places—they are pretending to be based in Ireland, but you can tell sometimes by the language that they are not. But it is very specific to female journalists. Because what I do would, I suppose, have been in the past considered quite a male job—there would not have been many female security journalists—you get that added misogyny of people who cannot abide the fact that there is a very mouthy woman doing a job that they do not believe I should be doing.
Q25 Gavin Robinson: I think Serbia is where some of the servers are based for the Shinnerbots, at least, who do a good job of intimidating others on Twitter.
It is good to see you both here this morning. Allison, you mentioned the team set up in the PSNI, which has given you a greater level of access to information and therefore potentially—I do not want to speak for you—more comfort around what was previously unknown. Are you reassured by the PSNI’s approach to these things or do you find it thoroughly frustrating?
Allison Morris: They are genuinely trying, and I can say that there is a real effort to try to make amends for, I suppose, the way these threats were treated in the past. They were treated like, “It’s part of your job—get on with it. We get threatened and you get threatened—deal with it.” But there has been an effort to try to address that. My journalist colleagues—I suppose it would be me and maybe the people who work on the Sunday papers would be the ones who receive the most threats—are grateful that you are receiving that.
The one thing I will say, though, is I have never received any assistance from either the NIO or anyone else in terms of the amount of money it costs to protect yourself from this. The amount of security in my house has cost tens of thousands of pounds and my employer has footed that bill. I imagine that had I been a politician or a police officer, that would have been paid for by the Northern Ireland Office. But that is not accessible to journalists, even though the threat level would be quite similar.
Q26 Gavin Robinson: That is extraordinary—I had not realised that that was all provided by your employer. Malachi, I know that the focus has been around female journalists particularly, but you have been a journalist, a writer and a commentator for many years. You have similarly experienced physical abuse and intimidation; I have heard you speak of it in the past.
Malachi O’Doherty: Not recently. I mean, I am not a workaday journalist or at least a workaday reporter, so I do not have an experience that compares at all with Allison's. I have never received notification from the police that I was under threat. When the question arose, my immediate thought was, “Well, this does not really happen to me,” and then I cast my mind back and all kinds of incidents come up in memory.
I suppose the most dramatic—this is going back some years—was when I was at the Felons Club in Belfast to cover a speech by Gerry Kelly, whose name I am sure will come up again. I was taken aside by Bobby Storey, who was a senior member of the IRA, and basically pushed up against a wall and told that I was a slug and a member of MI5, and that I was not to be appearing in the club again. Some friends of mine went to Storey and others and said, “What’s the big deal with Malachi?” He said, “Well, he just shouldn't think that he can walk in and out of west Belfast at his leisure.”
Q27 Gavin Robinson: Just to put that into context, you are talking about somebody for whom there was probably no one more senior in the IRA at the time.
Malachi O'Doherty: I don’t know what his specific role was. Occasionally journalists would get intelligence briefings on who was a member of the Army Council, and his name would not have come up as a member. Bobbie Storey was described as an intelligence officer. I had written a radio talk that had gone out that morning, or that week anyway, about the role that Storey was playing in monitoring the republican movement itself to check that people were on side with the ceasefire—that’s how far back it was. I was referring to his record and asking whether he was really the kind of person we wanted defending the peace process. That was the question. The funny part of it was that he had asked for the script through somebody and I had sent it to him, yet he was coming on as the big intelligence officer saying, “Oh, I have sources—I’ve got your script.”
There have been occasions. One of the most awful times was during the Harryville protests in Ballymena where I was jostled and threatened by loyalists. I was threatened by loyalists at the Billy Wright funeral—he was a major loyalist. Like Allison, though not on the same scale, I get quite a lot of abuse on social media. I suppose that is more likely to come because of the commentary rather than the day-to-day reportage, but any time I do anything on social media I will get abuse for it. I think you have to shrug it off. You can’t go to bed every night worrying about some anonymous person who is saying nasty things about you.
Q28 Gavin Robinson: I will close this section off so that we can move on to the legal aspects—some of the legal curtailment or at least the legal protections for us all. Can I ask whether either of you have recommendations or suggestions for measures that the Northern Ireland Executive or this Government in Westminster need to take to protect press freedoms, or, in spite of all that has been mentioned, do you feel free to do your jobs?
Malachi O'Doherty: The greatest inhibition I have felt in my work has been the legal threats to take me to court for defamation. I think we certainly need to look at X/Twitter in particular and the toxic stuff there. I would love it if there were a rule that you could not post on social media anonymously, and that would be the end of the matter. Every day, you get these snide, vindictive and toxic messages from people with pseudonyms and you have no idea who they are.
Allison Morris: If I were to libel you, I would receive a letter—probably from Paul Tweed—saying that I had libelled you and there would be repercussions for that, whereas on social media, people can say anything.
We also have a threat that we have not even begun to touch on yet, which is AI and the difference that will make. We have had two people—a politician from your own party and one from the SDLP—who have been subjected to deepfake porn, which was used to try to discredit them in the run-up to an election. Now that we have an unknown quantity in X, a huge amount of damage can be done to a person’s reputation before they even have a chance to defend themselves and say, “Look, this is fake; it isn’t real.” The damage is already done at that stage. I think that there is scope to treat them like publishers, and if they do not monitor their activity, they should be able to be subject to libel proceedings.
I understand why people want to be anonymous online. There are people who live in countries with regimes that do not allow free speech, and people who may have very strict employment regulations around social media use and just want to have a bit of a laugh. I can understand why they would like to be anonymous, but there is perhaps scope for them to have to register with an ID. You can then call yourself whatever you want, but it means that if you cross that line into criminality, your details are much easier to get. In cases where there has been criminal activity and threats against me, I know it has been very difficult to get the IP addresses from the social media companies. Also, if people are so inclined, they know how to hide the IP address or they use open-source wi-fi.
Gavin Robinson: Just to assure you that if you defame me, I will phone you before I get somebody to write to you.
Allison Morris: Before you contact Paul Tweed? Yeah, he costs too much.
Q29 Claire Hanna: Thank you very much. That was all very disturbing, and now we will move on to the legal intimidation and coercion tactics that you might have been subject to. Malachi, could you outline the legal action brought against you by Gerry Kelly MLA? You might touch on the impact that it had on you personally and financially.
Malachi O'Doherty: Gerry Kelly is a member of the Policing Board and a former member of the IRA. He is proud of his past in the IRA; he is not ashamed of it. He led a mass breakout from the Maze prison in September 1983. During that breakout, a prison officer called John Adams, who was in the control room, was threatened by Kelly that if he did not behave, he would be shot dead. Kelly was armed. Adams did something—he moved or tried to close the door—and there are two different accounts of what happened next. One is John Adams’s account, which is that Gerry Kelly stepped into the control room, pointed a pistol at him, fired twice, missed once and hit him above the eye. It didn’t kill him.
The other version is Gerry Kelly’s own account in his book “The Escape”, in which he says that he and Bobby Storey—whom we have heard about already—were outside the control room and noticed that Adams was trying to close the door. They rushed the door and one of them, unnamed, got a shot round the partially opened door, and that hit John Adams in the eye.
There was confusion of identification in the trial, and Justice Lowry concluded that Kelly may well have been the one who fired the shot, but he was not sufficiently sure to convict him. Kelly was named as the shooter in the Hennessy report into the escape, and was named in two television documentaries that Kelly himself participated in. He has also been named as such in several books.
I was on two radio programmes on the same morning in August 2019, and it occurred to me in both separate interviews to use Kelly as an example. One of the points that I was making is that somebody can have a past, but their present may be different. I was actually saying something almost complimentary about him—I wouldn’t go that far, but I was saying that we know that he shot a prison officer in the past, but we do not expect him to do it again. Things move on and the context changes.
In October 2019, I got a letter from Kelly’s solicitors, Ó Muirigh in Belfast, alleging that I had defamed their client, Mr Kelly, and requiring compensation for my defamation of his character. I was bewildered. I thought, “Is this a joke?” Gerry Kelly had been doing a roadshow with Bobby Storey telling tales about their heroic breakout from the Maze prison, so I was perplexed by it. I was also inevitably flummoxed, disturbed and worried. I didn’t immediately laugh it off; I had dealings with my solicitor and a brief—a barrister.
The initial thought was that we might be able to make an offer—a form of words, without prejudice, that would wrap this up and get rid of it—but there was no reply to that from Kelly for a year. What he did throughout the whole process, which lasted four and a half years from that original letter, was to procrastinate at every stage to drag it out. So no reply came at all for a whole year. In that time I thought, first, that it had all gone away and that he had wised up and, secondly, “Hang on a minute. What possible form of words can there be to say that Gerry Kelly, who participated in the bombing of the Old Bailey in London in 1973, had been in prison for that and had led an armed escape—what possible words could I come up with to endorse the fine, upstanding reputation of this decent citizen who happens to be a member of the Policing Board?” There simply wasn’t a form of words that I could come up with, so I let it drag.
At the end of a year, I was notified that a writ had been lodged against me in the High Court for the defamation of Gerry Kelly. No one came near me. Again, a whole year went past, and I thought, “Well, that’s it. He’s let it go. Very sensible of him.” Then at the end of that year, a writ was delivered to me at my home. A nice young man with a brown envelope said, “There you are, Mr O’Doherty.” That meant that I had to reply to it. I replied to it within 14 days, making out a case with my lawyers.
Then nothing—for eight months, nothing. And then comes the statement of claim. The statement of claim was ludicrous. You would not believe it. I was thinking to myself, “This man thinks I have damaged his reputation. What is he doing to his own reputation? What is he doing to his reputation among people in the republican movement, who respect him as a former republican?” He was saying, in effect, “I am not like the guy who fired that shot. I am better than him. I have a reputation, and he doesn’t have a reputation.” That was the implication of the position he was taking. He was making a complete ass of himself, and yet here was this statement of claim with these points that had to be defended. One was a suggestion that Mr Kelly had been in illegal possession of a weapon—it is in his own book—and that Mr Kelly had used an illegal weapon in a threatening manner against a prison officer, and this was in his own book.
Again, I sat down with lawyers and I said, “Look, this is very, very stressful.” They knew how stressful it was, and it was getting more stressful because of the way in which it was being handled. You were being lulled into this sense that it was all gone away, and then you were being hit with it again. I regarded that as malicious.
We had a discussion and came up with the idea that we should just apply to have this writ struck out, and that is what we did. The genius behind that was a retiring lawyer called Brett Lockhart—a wonderful man. He and his son worked on the application to have the writ struck out. A date was set for the hearing in the High Court in Belfast to have the writ struck out, and in the days before we were to have this, we get a message that the timing doesn’t suit. Well, it did not really suit my team, either, so we were happy enough to agree with that. It is put back six months.
Six months comes and he says, “Look, there’s another case very similar to this against Ruth Dudley Edwards. Why don’t we combine the two and then set a date for further on?” So a third date was set for 7 December 2023, four and a half years after the thing had started. We turned up at the High Court. It was the Master’s Court—the master was Evan Bell—and it was a little like an academic seminar. My wife was there and she really enjoyed it, in that sense. She is more of an academic than I am.
The two briefs put their case before the master, who makes a decision on whether or not to allow the defamation to proceed. I have his words here. He struck the thing out as “scandalous, frivolous and vexatious” and “an abuse of process”. That was interesting—an abuse of process. What he is saying is that Gerry Kelly is not doing this at all to preserve a reputation, which has no tenability; what he is doing is messing with a “bothersome” journalist. That was the judge’s term. I do not regard myself as bothersome, but adjudication has been made that I am bothersome, so I live with it.
An abuse of process—so a member of the Policing Board was using the courts to intimidate a journalist or to extract money from a journalist. As a member of the Policing Board, he is supposed to have some kind of regard for the justice system and the legal system and policing, and here he is using the courts in this abusive way, and it is affirmed by the judge that he is using them in an abusive way. That was very interesting.
The judge said that this was a SLAPP case. That term had not been used in the courts in Northern Ireland, a SLAPP case being a strategic lawsuit against public participation—the ability of people to use the law, or an interpretation of the law, to restrict public discussion of an issue of concern to them.
As the Kelly case was under way, another one came through. It was from the Kevin Winters firm. This was a claim that I had caused emotional distress to a woman that I referred to in a television documentary that I reviewed on Facebook. I spoke to my lawyers about this: “Is there any way in which I can be sued for causing emotional distress, much as I might regret having caused emotional distress?” And they said, “No, there’s no legal basis for that at all.” So I have got another SLAPP case. My decision on the basis of that advice was simply to ignore it. I ignored it and a couple of months later came the follow-up: “Since you have not responded to our claim for damages for Mrs”—I will not name her—“we will now initiate proceedings against you.” I ignored that as well and nothing happened.
The first person to recognise a case as a SLAPP case is the lawyer who is taking it. That is my experience from this. That is the point that I think is most important to make. I think that if we are going to do anything, we need to have a closer monitoring of lawyers and say to them, “Look, cut it out.”
Q30 Claire Hanna: You have painted a picture of not one but at least two cases—
Malachi O'Doherty: From human rights lawyers, as they call themselves.
Claire Hanna: —that were, in the words of a judge, “scandalous” and “vexatious”, and ones that have drawn out for many years, and explained the effect that has had on you. You touched on why you think the case might have been brought against you specifically. Do we have a culture of this creating a chill factor, and—I am asking you to speak anecdotally—is this something you think other journalists are subject to and anxious about in the course of their work?
Malachi O'Doherty: I think journalists are constantly anxious about it. The problem is we have no way of measuring the scale of it. Most defamation cases are settled before they come to court. That means they are not put to any judgment. An awful lot of those cases may have been defensible. The advice when I went to my lawyers first was, “Look, you could even win this and end up with £60,000 in costs.” On that basis, “Is there a way of buying my way out of this for £10,000?” That becomes a very attractive option, and that is the option that an awful lot of people are taking. Because of that, we do not have a record of these cases and we do not have any sense of the scale of the problem. I am sure Allison has had letters from solicitors; I am sure it is a very common experience. It is a frightening thing and it puts you in a very difficult position.
What we need is some way of registering the scale of this. We need some sense of how journalists and people threatened with SLAPP cases can get immediate advice on whether a case is a SLAPP without being put to any expense. The other thing we need is compensation for people who are harassed in this way. A taxi driver says to me, “What are you going to do with all that money you got out of Gerry Kelly?” I didn’t get a bean out of Gerry Kelly; I got tinnitus from Gerry Kelly!
Q31 Claire Hanna: As you say, we don’t have a handle on the problem. I am aware, again anecdotally, of cases where an employer—a publication—as you say, a bit like a car insurer, settled for the few quid rather than running the risk of expensive court costs. There is loads I would like to get into, but I am going to pause that for a moment.
Mr Tweed, can I ask you briefly how defamation law in Northern Ireland compares with that in England and Wales? Do you believe that the culture is different?
Paul Tweed: I don’t believe it is different as such. The difference between Northern Ireland and England and Wales at the moment is the cost of defamation proceedings. Over the years, the media in particular have been focused on damages awarded. I was recently cited by a defendant lawyer, when they were asked to estimate their costs by the court, an estimate of just under £3 million. This was a case being brought by one claimant against several defendants who had one particular firm of solicitors acting for them.
In Northern Ireland, the costs are nothing like that. I say at the outset that I have nothing but sympathy for Malachi’s dilemma, and in fact I made it clear that there would have been an extremely high cost penalty for the plaintiff who brought this totally ill-advised case, in every sense of the word. But in Northern Ireland we have managed to keep the costs down. I act, as I say, in London, Dublin and Belfast, and the costs in London are eye-watering. The costs in Dublin are catching up—I will put it that way. The worst thing that has happened to Northern Irish defamation law—for plaintiffs and defendants—has been the 2022 Act, which created all these different scenarios. It was a half-cocked affair. I made it absolutely plain whenever it was being debated, and the same way whenever I was on the Ministry of Justice panel debating the 2013 Act before it came in.
We have got to focus on the real culprits here, who are the social media—the big tech platforms. We have had opportunity after opportunity to put a simple clause into the legislation that the big tech platforms should be treated as publishers. I act for many female MPs, MLAs and journalists. The misogyny out there is absolutely appalling, but it could not be communicated unless it were facilitated by these platforms, and they just say, “Well it’s nothing to do with us.”
Q32 Claire Hanna: I do not think we are going to be in much disagreement about the role of the social media companies and the need to regulate. Malachi has just outlined the personal and financial strain he experienced, and the fact that that is unlikely to be something that has only affected him.
Do you acknowledge that that exists within the current legal framework and that it can drag out for many years, and that people are perfectly able to put a journalist making legitimate comment through that pain and stress within the current legal framework? Do you acknowledge that that is not an acceptable situation?
Paul Tweed: So far as I am concerned, the process of the law is far too slow. It cannot deal with the scenario—online actions—that we are dealing with. In Malachi’s case, I hope what he had to go through was an exception. I can understand why he is frustrated with the legal advice that was obtained there, but the bottom line is that there are two sides to every coin.
I personally have been subjected to people following me, my family—my teenagers. I have made a complaint to the UN special rapporteur on the independence of judges and lawyers. According to The Sunday Times, there have been numerous attempts to hack into my email system. I get threats. At the end of the day, nobody is going to have much sympathy for a media lawyer, and I am not looking for any—I will look after myself—but it is not one-sided. There is a problem, and you have to look at both sides of the coin.
The difficulty is trying to protect everyone here. We are talking about SLAPPs, and if I may, I will make a point about those. There should never be a situation where somebody uses their financial wealth or whatever to try to threaten journalists, lawyers or whatever, but I have been subjected to the same people who have been arranging surveillance or whatever. I have also been subjected to a situation where a book was published by a guy called Andreas Krieg, and in it he accused me of being a covert agent for the UAE, or a stooge.
I have been in this business for five decades. My firm wrote to him—seven pages—and set out my objections in detail. This book has appeared on university and parliamentary databases around the world, so I could not let it sit. I said, “Because I wrote to you on behalf of a couple of clients, you decided to have a go at me. You decided to have a gratuitous go at me in the book. Look, I just want you to retract and apologise. I’m not looking for any money from you. I’m not looking for costs.” I set it out in seven pages, so nobody could complain. He ignored it. I then sent four more letters—ignored. He decided to retweet something that was defamatory of me again. He took it down very quickly when he realised he could not stand over it. But what he did was he made a complaint to the SRA that this was a SLAPP case. I had written to him, and he doesn’t reply to me—he does nothing. Unless I got down on my hands and knees and begged him, I couldn’t think what else I could do.
He puts a complaint through. The SRA investigated very thoroughly—it took up a lot of time; my firm had to go through the whole thing. They looked through it and they agreed there was no way it was a SLAPP—it could not be a SLAPP. The letter set out the detailed basis of my claim. I had set out the steps to be taken to avoid litigation. I simply asked for the paragraph to be removed and an apology. It did not contain language that was unduly aggressive or intimidating, and there was no indication that my firm was attempting to exploit a vulnerable party.
So that is the other side of the coin. That is not for one moment to take away from Malachi’s situation, which I think is appalling, but if you are talking about legislating for SLAPPs, you have got to look at it from both sides.
Q33 Claire Hanna: I think all of us would defend people’s right to a good name. I am so sorry to hear about the experience of you and your family. Nobody should face intimidation in the course of their work. You have said that cases like Malachi’s should not happen, but they clearly do, and they happen extensively. The judge, as Malachi read out, said that those proceedings “bear the hallmarks of a SLAPP and have been initiated not for the…purpose of vindicating a reputation”—I think we all agree that is legitimate—“but rather for the purpose of stifling the voices of…troublesome critics.” Have you ever initiated proceedings that you think could be identified in that way on behalf of a client?
Paul Tweed: No, I do not believe I have—on the contrary. I act for publishers and newspapers as well, so I have to keep swapping my hat around. Sometimes I do get confused. But the bottom line on it is that that should never happen. It is appalling that it happened.
Q34 Claire Hanna: Do you think that Malachi’s case is a one off? Do you think it is the exception, or part of a culture?
Paul Tweed: The author of the book “Putin’s People” here in England was, I understand, subjected to one. I was not involved in any of these cases. I am not aware of other scenarios. Over the years, people have accused me of being a lawyer who is feared, which is absolute nonsense in my opinion. Whether I am defending a female journalist or trying to protect a newspaper, I do what I do—what I have been taught to do and have all the experience to do—but I do it as proportionately, fairly and appropriately as possible. That is the way it should be done. This was obviously not the case in Malachi’s situation, and I hope—I hope—that that is not repeated elsewhere, but I obviously cannot know that.
Q35 Claire Hanna: You think that Malachi’s case appears to be the exception; you do not think that that is part of an identifiable culture.
Paul Tweed: I don’t know. That is the only one I know about myself.
Q36 Claire Hanna: Obviously, the definition and categorisation of SLAPPs is evolving. Are you familiar with the concept of super-injunctions? Do you think that they would fall under the same categorisation?
Paul Tweed: I do not believe that there have been any super-injunctions for many years. It is the same as libel tourism. I have been accused, but I am still waiting for somebody to give me one example of libel tourism. SLAPPs fall into a similar category. People are using that as a basis to demand reform. I am at a stage in my career where it does not matter to me, but all I would say to people is that once you start codifying, or trying to codify, the common law, legal costs start going through the roof. I do not want to see a situation in Northern Ireland where the prospect of protecting your reputation in any way at all is going to become beyond the means of the ordinary person in the street.
Q37 Claire Hanna: But of course it is. In many cases, there is a complete inequality of arms, in that the costs can tick up, as they did for somebody like Malachi. In that case, imperfect though it was, there was at least a two-sided legal process, where he would have had—if he had unlimited financial means—the opportunity to go in and, ultimately, be vindicated. Are you aware of legal proceedings where that is not the case, where reporting or mention of an issue that may be in the public interest is suppressed by legal threat or legal injunction?
Paul Tweed: We like to protect our clients as best we can within the regulatory and financial constraints. I cannot go into specific cases—obviously, because of client confidentiality—but I fight for my clients. Within whatever financial means they have, I do everything I possibly can. Unfortunately, defamation was excluded from the legal aid system, so you cannot get legal aid for defamation. In Northern Ireland, we are also quite unique in that it is against the Law Society rules for a solicitor to do no win, no fee, unlike in the Republic of Ireland and in certain circumstances in England and Wales. That is something that should be looked at. I have been urging that somebody look at it. If you will not do the legal aid, at least give the lawyers as much flexibility as possible.
I am in a lucky position: I can pick and choose my cases. I am certainly not looking for work—so please do not call Paul—but I will fight to the death for my client. It does not matter whether that is a journalist, a newspaper, or somebody who might have faced public opprobrium or whatever, I will decide on the merits of the case, and then I will fight—I have the backbone to do that.
My big concern here is that, while we are debating these issues, the big problem that is coming in now is AI. Generative AI is going to make a lot of our debate today absolutely meaningless—totally lost. To give one example—
Claire Hanna: Time is not in our favour, and other colleagues want to come in, including on the existing legal framework. We are not necessarily in disagreement on AI, but I don’t think time allows.
Paul Tweed: May I make one point on AI? I am not in the same league as Malachi or Allison—
Claire Hanna: The danger is, having—I believe—identified substantial gaps and flaws in our legislative framework for defamation and SLAPPs in Northern Ireland, we could eat up all our time on AI, which is outwith the remit of this Committee.
Paul Tweed: AI is far more important, Claire, than anything you have been discussing today, in my opinion—
Claire Hanna: In your opinion.
Paul Tweed: But it is up to you. If you are going to cut me off and silence me here, that is up to you.
Chair: I will give you the opportunity, Paul, to tell us what you wanted to tell us about AI, but will you put it in writing, please?
Paul Tweed: It is dead simple—
Chair: No—will you put it in writing? We do have an interest in AI on this Committee, so it would be really useful if you could put that in writing. We will follow it up, because it is something that we may be looking at. Is that okay? Thank you.
Paul Tweed: I will do that, but as I say, it is a question of priorities.
Q38 Gavin Robinson: Paul, I am coming back to you, but not on AI—you will respect the nature of the inquiry we are holding today, which is about SLAPPs and what potential recommendations we could make about SLAPPs.
I have a couple of simple questions. It is possible to pursue and protect your reputation in Northern Ireland without recourse to the High Court. People can do it in a much more cost-accessible way in the county court. Isn’t that correct?
Paul Tweed: That is correct, although it is rarely used, fortunately or unfortunately, for a number of reasons. Very few cases actually reach litigation. Defamation is not a problem in Northern Ireland. I would be bankrupt if I depended on defamation litigation in Northern Ireland: there are very few cases and the costs—this is a good thing—are low in comparison with the other jurisdictions that I operate in.
Q39 Gavin Robinson: We can do it more cheaply in the county court; that is accepted. This is my second question. As a professional, you will be approached by many who say, “I have this issue—can you give me advice?”, and you will say, “That’s a no-hoper” or “That’s a case worth pursuing.”
Paul Tweed: Absolutely.
Gavin Robinson: Is there sufficient action from the Law Society to go against professionals who do not give proper advice? If a lawyer is proceeding with a case that is ultimately vexatious, what sanction is there? Should there be a sanction?
Paul Tweed: There are sanctions in all three law societies that control or regulate my work. We have to make sure that we comply with all the regulations. For instance, Malachi is free to make a complaint, if he has not already done so, to the Incorporated Law Society of Northern Ireland on the basis of the conduct if he feels it appropriate. That would be an option.
We are very carefully monitored. If I step out of line in any way at all, I would expect one or all of the law societies to come down on me like a ton of bricks. There is a regulatory sanction that each of the law societies has. The SRA here in London is probably the strongest, but there are sanctions available to all three law societies.
Q40 Gavin Robinson: This is my third and final question. In small claims court, there are no costs. It is an informal process and you cannot have a cost award made against you, save for vexatious cases. Malachi has outlined a situation in which he had a case struck out and appropriately used that mechanism, but it took four and a half years. If a case that has been brought is a total no-hoper, has been used strategically to shut someone down, is going nowhere and is, in legal parlance, vexatious, should there be compensation for the person who was subject to that SLAPP?
Paul Tweed: There are two factors. First, there should be the ability to bring a case before a court much earlier and much quicker. That would have removed a lot of the stress that Malachi will have been under for several years. Unfortunately, the court system can only handle so much in all the jurisdictions that I work in. The answer is yes.
If you are asking whether the sanction should be on the person who brings the case, as a financial sanction, or on the lawyers who advise them, at the end of the day I certainly would not be averse to that. If that could be implemented, the answer is yes, provided that it is two-way. I have given you my example; as I say, do not expect any sympathy from anybody, but there has to be fairness and it has to be right across the public interest. If somebody makes a wrong accusation about a case being a SLAPP, they should be subjected to the same financial penalties. But I would be all for that—no problem.
Malachi O'Doherty: I just wanted to come back in and correct you, Gavin. You referred to the small claims court—we did not take our application to the small claims court.
Gavin Robinson: There is no need for a correction; it was a different point.
Malachi O'Doherty: Okay—fair enough.
Gavin Robinson: You were before Master Bell, the master of the High Court—I understand that entirely. I was making a point about the cost implication in the small claims court. There are no cost awards save for where a case is vexatious. I am asking: do we need a system in our courts that goes beyond cost implications to a compensatory element for somebody like you? It was a different point.
Malachi O'Doherty: Thank you very much for that. The other point is just about the case that we had. Because it was the Master’s Court, it establishes a degree of precedence, but would I be right in saying that that is not a precedent that binds the High Court? They are more senior judges. That would be one of the arguments that we would put forward for the need for a clear law on SLAPPs.
Allison Morris: In my line of work, I am obviously dealing with people who would have no reputation and would not be able to take a defamation case in the majority of cases, but what they are increasingly doing is taking privacy cases. There is legal aid for privacy, so there is a cost to the newspaper for that.
One of the people who took a privacy case had 145 previous convictions. In another case, there are people who I will not name, but they are household names from their activity during the conflict in Northern Ireland. They have ongoing privacy cases for which they will get legal aid, and they could run forever. There is no way of claiming those costs back afterwards, because it is not a defamation case, so even if they lose, the money that the newspaper has accrued to defend cannot be retrieved.
Q41 Katrina Murray: That takes us quite neatly on. I am going to be absolutely honest with you all: I am used to another jurisdiction and the Scottish law, which in this area is very, very different. The Northern Ireland Department of Finance’s review of the Defamation Act suggests introducing a mechanism whereby a defendant can have a claim held until it has been assessed as a possible SLAPP. What do you think of that proposal?
Paul Tweed: I would have no objection to that at all. I have no problem with any practical steps being taken to remove the threat of SLAPPs in the background. That sounds to me like an eminently sensible situation. The question, of course, is “What is a SLAPP? Is this a SLAPP?” If people get a letter from a lawyer now, they feel, “This is threatening me. I feel intimidated.” At the end of the day, there has to be some form of balance. The difficulty is striking that balance and assessing it.
In answer to Malachi’s earlier point, I believe that the courts are well equipped under common law to deal with SLAPPs. They always have been and, in my limited experience of having come across a SLAPP, they have dealt with it effectively, but I think your suggestion is definitely worth considering.
Katrina Murray: How do you feel about that, Malachi?
Malachi O'Doherty: I can see problems both ways. In one sense, if you are going to have another layer of activity in the courts preceding a full case, that is more work for lawyers and more expense. I suppose that is the danger in it. But I do think we need legislation on SLAPPs, and I do think that where a case is gratuitously an attack on an individual, that individual should be awarded compensation for that attack. When Gerry Kelly came at me, if he had been concerned about his reputation, the sensible thing to do would have been to sue the broadcaster, because the broadcaster had both the platform on which to broadcast a retraction and the deep pockets to pay the money that was due. One of the clear warning signs that this was a SLAPP was that he had gone for me personally: I did not have the platform to present a retraction, and I did not have the deep pockets to pay him the big money that he would have been hoping for.
Katrina Murray: Particularly within an industry that is becoming much more freelance-based, and where you do not necessarily have the protection of an employer.
Malachi O'Doherty: That’s right. On the legislation, the Council of Europe has put out a directive to member states to initiate SLAPP legislation; I think the deadline for that is 2027. Index on Censorship was very helpful to me and brought me out to Strasbourg to meet the people involved in that campaigning. An organisation called Reporters Respond was very good, and actually donated towards legal fees.
There is a widespread campaign across Europe to deal with SLAPP cases. For Northern Ireland to be outside that—I take Paul’s point that he does not know of a case of libel tourism, but if we open a gap between Northern Ireland and the legislative framework in the rest of Europe, we will make Northern Ireland a much more attractive place in which to take SLAPP cases. I think we have to be on our guard against that.
Q42 Claire Hanna: I have two quick follow-ups. You might not be able to name a case of libel tourism, Paul, but do you think the potential is there for that to exist? Is that a marketable opportunity?
Paul Tweed: Put it this way: people have been saying this to me for the last 20 years and it still has not happened. That is all I can say to that, so who knows? Also, the 2022 Act made specific provision in relation to suitability of jurisdictions, so that is all covered. As I say, I am still waiting to get an example from any of the jurisdictions that I operate in.
Again, I think we should be focusing on the problems. You will not let me discuss the AI issue, which I think is a major one that is going to absolutely take over all the legislation that you are talking about. There is no point going back to libel tourism—that is definitely history.
Claire Hanna: As the Chair said, we would be genuinely delighted to, but we are bound to stick to the topic. The Chair has invited that analysis and will be really keen to read it. I just want to pick up on the privacy issue.
Allison Morris: It is effectively a way of trying to shut the press up.
Q43 Claire Hanna: Exactly: it is a way that both shuts the press up and is publicly funded to do so. Would any of the remedies that we have discussed here help to address that? Are there other avenues that you think should be explored?
Allison Morris: The thing about privacy cases is that you have to defend them. If you lose a libel case, you have to pay the other person’s costs, but with privacy cases that does not happen. I have cases where I have had to go along to court and the privacy case has been thrown out, but it might have taken two years to get to that point, and it has cost an extreme amount of money, at a time when newspapers are running on limited resources.
The thing is that solicitors are advising people who come to them. I work very closely with some very good solicitors, but if you have someone who has that kind of criminal record, they are good for your business over a long period. If they come and say, “I want to sue that journalist,” you have to break the news to them, “You don’t have a reputation, mate. You can’t sue anyone.” But you go, “I’ve got a good idea. Let’s take a privacy case against them,” and that appeases them and they get their day in court. I do not know of any of these cases that have been paid out, but I am currently involved in two pending privacy cases. Afterwards, I will tell you who the two people are and you will be shocked that these people feel that they have any kind of legal case, but they have been going on for quite some time.
Claire Hanna: I can’t wait.
Q44 Katrina Murray: My only further question is how any anti-SLAPP legislation would sit alongside the Defamation (Northern Ireland) Act 2022.
Allison Morris: I think that there is probably scope for some adjustments to that. In Malachi’s case, or in any other cases that I have been involved in, early resolution is the answer to all these things. That is when it costs less money for everyone, as well as less time, less trauma and less stress. Our courts are just too slow. If there was a way of speeding that up, that would bring these things to a resolution much quicker.
Malachi O'Doherty: I agree with that.
Chair: I would just like to say, Malachi, that we are part of the Council of Europe, so we will have a look at the SLAPPs recommendations as well.
I will call this session to an end. Thank you, Paul; thank you, Malachi; thank you, Allison.