MI5 has admitted it “unlawfully” obtained the communications data of a former BBC journalist in Northern Ireland, a tribunal has heard.
The “unprecedented” concessions relating to Vincent Kearney came in a letter to the BBC and Mr Kearney ahead of an Investigatory Powers Tribunal (IPT) hearing in London.
The tribunal has been examining claims that investigative reporters in Northern Ireland were subjected to unlawful covert intelligence by the police.
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.
These forces included the Metropolitan Police (MPS), the Police Service of Northern Ireland (PSNI) and Durham Constabulary.
The claims relate to Mr Kearney, who is the northern editor at RTE, and his work on a 2011 Spotlight documentary about the independence of the Police Ombudsman’s office.
Jude Bunting KC, representing Mr Kearney and the BBC, told a hearing on Monday: “The MI5 now confirms publicly that in 2006 and 2009 MI5 obtained communications data in relation to Vincent Kearney.”
He added that the security service “accepted” it had breached Mr Kearney’s Article 8 and Article 10 rights of the European Convention of Human Rights.
Mr Bunting continued: “This appears to be the first time in any tribunal proceedings in which MI5 publicly accept interference with a journalist’s communications data, and also publicly accept that they acted unlawfully in doing so.”
He said the concession that the organisation twice accessed Mr Kearney’s data represented “serious and sustained illegality on the part of MI5”.
Mr Bunting told the tribunal that the police forces involved had also made admissions.
In written submissions, he said the MPS accepted it twice obtained Mr Kearney’s communications data in 2012, stored it, and provided some of it to Durham Constabulary in 2018.
He continued that the PSNI “concedes illegality” for obtaining, storing and using Mr Kearney’s communications data.
The tribunal was told that this included authorisations relating to the investigation into the murder of Pc Stephen Carroll in 2009, and authorisations arising from Operation Erewhon in 2012, when the MPS obtained material in an investigation into alleged leaking in the Office of the Police Ombudsman for Northern Ireland (PONI)
Mr Bunting said Durham Constabulary conceded that its officers sought, obtained, reviewed and used material from the MPS, arguing that it did so for and on behalf of the PSNI.
After the hearing, Mr Kearney said: “This unprecedented admission by the British security service MI5 that it unlawfully obtained data about my mobile phone communications while I was conducting lawful journalism on behalf of the BBC is deeply concerning, not just for myself but for all journalists.
“I am keen to establish as much detail as possible about the nature of these two instances of unlawful intrusion, and whether MI5 illegally gathered information about my mobile phone communications on other occasions.
“These issues will be the subject of further legal inquiries by the BBC’s legal team.”
After the hearing, a BBC spokesperson said: “MI5’s admission that it illegally obtained communications data of a BBC journalist is a matter of grave concern. It raises serious and important questions that we will continue to pursue.”
Patrick Corrigan, Amnesty International’s Northern Ireland director, said: “The disclosure that MI5 has twice trampled human rights law by unlawfully prying into the phone records of a journalist in Northern Ireland is profoundly alarming.
“A journalist’s right to protect their sources is not a luxury, it is the bedrock of a free and fearless press.
“This is not just about one journalist, it is about the public’s right to know the truth.”
He added: “The revelation that MI5 itself has been breaking the law to rifle through journalists’ communications should chill anyone who cares about freedom of the press in the UK.
“What is now urgently required is full transparency, genuine accountability and an end to this pattern of unlawful intrusion.”
Mr Kearney complained to the IPT after a separate claim was brought to the tribunal by Mr McCaffrey and Mr Birney.
The pair were arrested in 2018 as part of a police investigation into the alleged leaking of a confidential document that appeared in a film they made on a Troubles massacre, titled No Stone Unturned.
The PSNI asked Durham Constabulary to investigate the leak of a PONI document that appeared in the film, but in 2020, the High Court in Belfast ruled that warrants secured by police to raid their homes and business offices in Belfast were wrongly obtained.
The IPT later established that a covert surveillance operation against the pair was unlawful.
