IN AUGUST LAST year, journalists Trevor Birney and Barry McCaffrey were arrested and their homes and offices were searched by police.

The arrests followed a controversial documentary the two journalists were involved in, called No Stone Unturned. The documentary focused in on the killings by loyalist gunmen of six Catholic men in a pub in 1994, known as the Loughinisland massacre.

It revealed sensitive information from the Police Ombudsman and alleged State collusion in the killings.

The PSNI said at the time of the arrests that Birney and McCaffrey had been detained over the suspected theft of files from the ombudsman’s office.

However last week there was a significant development in the case – High Court judges ruled the search warrants issued against the two men were “inappropriate” and recommended the material be returned. 

Lord Chief Justice Morgan said the court had heard nothing to indicate the journalists had done anything wrong. He said they had acted in a perfectly proper manner with a view to protecting their sources in a lawful way. 

And on Tuesday it was confirmed that the investigation into the two journalists has been dropped.

Barry McCaffrey (left) and Trevor Birney after the meeting of the Policing Board in Belfast. Michael Cooper / PA Michael Cooper / PA / PA

‘A serious matter’

Although the PSNI said in a statement that it respected and accepted the decision of the High Court, it stated that officers had acted in good faith and pointed out that the warrant application was submitted to and approved by a county court judge.

PSNI Chief Constable George Hamilton also defended police actions: “As a police service, the suspected theft or unlawful leaking of any sensitive documents containing information that may endanger life is a serious matter which we are statutorily obliged to investigate.”

Yesterday, Hamilton appeared before a meeting of the Northern Ireland Police Board, alongside Durham Chief Constable Mike Baron, whose police force had been brought in to run the investigation. 

Hamilton again defended the decision to investigate the alleged leak or theft of documents, telling the board that the Ombudsman Mark Maguire had brought it to his attention. 

“It doesn’t make sense to me at any level. The material was taken, we believe unlawfully, from the Ombudsman’s office, either leaked or stolen. The Ombudsman’s telling us about that,” Hamilton said.

“We would say he has, through a senior member of staff, committed to a statement of complaint. He would say he hasn’t, but even the fact that he is wanting to not complain about that but report it to us and report it to the Information Commissioner – what on earth do they expect us to do other than investigate it?”

He said he would have no problem issuing an apology if it was determined that he or officers acting under his command acted improperly, but said things were not at that point yet. 

Durham Constabulary's chief constable Mike Barton (left) and Police Service of Northern Ireland chief constable George Hamilton. Michael Cooper / PA Michael Cooper / PA / PA

Chief Constable Barton, when asked whether he would like to apologise to the two journalists, also declined to do so, though he did apologise for the distress caused to the victims’ families.

I’ve got to say that I thought the law was in a different place until the Lord Chief Justice corrected me. And I stand corrected and I have now changed my mind on what the law is. What’s interesting though, we’ve got to wait until we see the written judgement of the Lord Chief Justice. So, albeit I’m now reflecting on his words, I now wait for his written judgement.

‘Abrasive’

All parties involved in this are awaiting the publication of a full judgement from the judicial review. The Policing Board is also expected to carry out a review of the events surrounding the journalists’ arrests. 

The families of the victims of the Loughinisland massacre have condemned the actions of police and questioned why the focus was shifted away from the killers and onto journalists who were reporting on the murders. 

BBC reports Trevor Birney’s solicitor, Niall Murphy, said he had spoken to the families and said they are “very disappointed at the abrasive attitude adopted by both chief constables”. 

“An opportunity has been lost to attempt to rebuild and restore the confidence of the families and certainly the community from which they come,” he said. 

“One would have thought that an apology in this case would have been immediately forthcoming, first and foremost to these families, but also to Trevor Birney and Barry McCaffrey.”