Former BBC journalist Vincent Kearney, now the northern editor at RTÉ, has been awarded £20,000 in damages by the Investigatory Powers Tribunal (IPT) after MI5 unlawfully obtained his communications data. The Security Service previously admitted it breached his rights, and the Police Service of Northern Ireland (PSNI) and Metropolitan Police also made concessions during the proceedings.
Judgment details
In a judgment on Thursday, three judges at the IPT awarded Mr Kearney £10,000 in damages from the PSNI and the same amount against MI5, finding there was “no reason to distinguish between the conduct” of the two organisations. Lady Carmichael, Mr Justice Chamberlain and Stephen Shaw KC said that “the interferences in this case were numerous, and took place over a period of years”.
The judges continued: “The heightened protection provided to journalists is not for the benefit of the journalist personally, but for the public interest in the ability of his readers or audience to receive information from him.”
MI5's authorisations
In the 16-page decision, the tribunal said that MI5’s bids for Mr Kearney’s data in 2006 did not identify him as a journalist, or that the data sought would reveal his sources. They continued: “The authorisations do not explain why the data sought cannot be obtained by other means, nor why the public interest requires interference with journalistic sources.”
Kearney's response
Mr Kearney, who worked as BBC Northern Ireland’s Home Affairs Correspondent between 2006 and 2019, welcomed the judgment, describing it as “a tremendous victory for journalism”. He continued: “The ruling is unequivocal; agencies tasked with upholding the law acted in ways that were ‘not in accordance with the law and disproportionate’.
“The IPT does not normally award damages, and that was never the purpose of this case. The aim was always to bring into the public domain the extent of the law breaking over a period of many years and the impact that had on my ability to perform my lawful duties as a journalist.” Mr Kearney said the ruling was the first time MI5 had been ordered to pay damages to a journalist. He concluded: “It is important that agencies charged with upholding the law know that they are not above the law and will be held to account.”
PSNI apology
PSNI Chief Constable Jon Boutcher offered a “sincere apology” to Mr Kearney following the ruling. He continued: “Significant changes to practice and policy have already been made since these issues occurred, with the role of the Investigatory Powers Commissioner’s Office in independently authorising communications data requests, and the enhanced safeguards of the judicial commissioners in scrutinising requests involving those who may handle confidential information.”
Mr Boutcher highlighted the report published by Angus McCullough KC last year on the PSNI’s use of surveillance, which identified more than 20 attempts by the force to identify journalists’ sources but determined the surveillance was not “widespread or systemic”. He added that the McCullough Report and the Investigatory Power Commissioner’s oversight “ensure that the recognised independence of journalism and the freedom of the press is proportionality balanced against any lawful and overriding law enforcement requirement”.
Mr Boutcher concluded: “As a police service we are committed to ensuring that we learn from mistakes when they are made. We are committed to transparency and using the powers available to us in a way that is lawful and in the public interest.”
Background
Mr Kearney brought legal action after reports that documents in the case of documentary makers Barry McCaffrey and Trevor Birney had suggested that public bodies, including police forces, had spied on Mr Kearney. At a hearing in February, Jude Bunting KC, for Mr Kearney and the BBC, said there were seven separate police or MI5 operations where the intelligence services or forces unlawfully obtained the journalist’s or broadcaster’s confidential communications data between 2006 and 2018.
The tribunal in London was told that the PSNI had made a “detailed profile” of the journalist, including his date of birth, addresses, car details, phone numbers and the names of his wife and mother-in-law, as well as an “extensive review” of his published work. Cathryn McGahey KC, for the PSNI, said the force had made “a number of clear and extensive concessions”. The barrister said in written submissions that “the interferences in question were directed at the acquisition of communications data associated with an individual journalist, rather than at the BBC’s editorial autonomy, premises, systems, or journalistic archives”.
BBC statement
A BBC spokesperson said: “The issues raised by this case were a matter of grave concern, not just to the BBC but to wider society, which is why we pursued them to the fullest extent possible. Journalistic freedoms are a basic part of how democracies work. Their importance is recognised in law and matters to all of us. What happened in this instance was wrong and must never be repeated. It caused harm to a journalist, jeopardised trust and threatened the safeguards on which public interest journalism depends, and has a right to expect. Today’s findings are welcome, necessary and significant. And we hope that their effect will be to protect journalists and their freedom to report and investigate stories into the future.”
