Journalists behind Loughinisland film have bail extended for another 6 months

Trevor Birney and Barry McCaffrey were arrested on suspicion of the theft of sensitive material from the Police Ombudsman’s Office back in August 2018. Documents and computer equipment were seized from two homes and the office of Fine Point Films. The two journalists were released on bail.

Durham Constabulary are conducting the investigation at the request of the PSNI.

The legality of the search warrant has been challenged and the police have given an undertaking not to examine any of the material until Belfast High Court has ruled on the search warrant’s validity. The right to a judicial review was granted in February, and the case will be heard in May.

Meanwhile, the level of redaction of documents that will be used in the case is being discussed in court, with the police given a further two weeks to finalise their arguments about the need and scale of the redactions they wish to make.

On Friday morning, six months after being arrested and released, Birney and McCaffrey presented themselves to Musgrave Police Station for questioning on Friday morning. Their bail was extended for another six months. McCaffrey commented online that no one from the Durham Constabulary (or the PSNI) turned up in person. The bail extension was adjudicated by an independent custody officer.

The BBC report that at today’s bail extension, Durham Constabulary “sought to prevent the two suspects from discussing the contents of witness statements, which have been disclosed to them during the ongoing Judicial Review.”

That additional bail condition was refused.

Durham Constabulary clarify that “at no stage today did Durham ask for a condition stopping either person talking about their arrest as has been suggested.”

“Today’s process is not an attempt at gagging anyone. We simply would not wish to see our investigation undermined by having witness statements inappropriately disclosed on social media.”

Birney’s solicitor, Niall Murphy, warned that they pair will be “a total of one year on police bail for a case that doesn’t exist”. He added:

“There is no theft, there is no complaint of a theft and police have taken investigative action arising from this film and that police have arrested the two people that seek to tell the truth about the circumstances of the atrocity in Loughinisland is a farce, and a malicious farce.”

McCaffery’s solicitor John Finucane said: “In an extraordinary and worrying move, police sought to gag my client talking publicly about investigation and witnesses … This blatant attack on press freedom was successfully resisted and concern in this case increases.”

NUJ assistant general secretary Seamus Dooley said that “these journalists are being punished because they have exposed brutal human rights abuses in Northern Ireland.”

It is all too easy to throw hands up in the air and complain about press freedoms being attacked. However, in this case, much points to a lack of proportion and to procedures not being followed diligently.

The charge of stealing documents is serious one, and unsurprisingly, the allegation is disputed.

But also serious is the seizure of what Fine Point Films’ lawyer described as “a vast quantity of journalistic material that has absolutely nothing to do with the investigation”.

And six months later, that material is still sitting somewhere on a secure shelf gathering dust.

Much of the seized material is expected – if and when it is examined – to be found to refer to other investigations and film productions not connected with the film No Stone Unturned about the 1994 Loughinisland killings.

Reviewed last November on Slugger, I remarked that No Stone Unturned went “well beyond even the Police Ombudsman’s second report into the original police investigation”. Cinematically, it’s a well-made documentary, and the specificity of its revelations are astounding, naming suspects and showing footage of them still living and working close to Loughinisland, and revealing that one of the gang of three who attacked the rural pub was an informer.

Blogging last November, Brian Walker explained that the Police Ombudsman Michael Maguire informed the PSNI that the film identified a number of individuals “who may now be at risk”, but the police took no action at that time to injunct the film’s release.

A free press is not beyond investigation.

However, given the allegations of collusion exposed in the film, the disputed source of the complaint to the police, the heavy-handed seizure of evidence beyond the scope of the investigation, and the desire for the police to constrain which aspects of the case can be discussed in public, the police have as many questions to answer as the two journalists whose search for truth and justice uncovered so many embarrassing and hard to explain aspects of the killings and the investigation that followed.

PSNI Chief Constable indicated to the reconstituted Policing Board that the Chief Constable of Durham Constabulary is willing to attend a meeting and answer the board’s questions about the arrests.

While the £55m announced this week to fund legacy inquests within the Coroner’s Service is to be welcomed, answers about the past are few and far between. At the moment, my perception is that the State seems more concerned with halting the flow of information than allowing the whole truth to be let out in the open.

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