Suzanne Breen describes her battle to protect her sources from police in Northern Ireland
Nobody expected us to win. Just by mentioning of the word “terrorism” nowadays, the state generally secures whatever it wants, even on the flimsiest basis. So when the Police Service of Northern Ireland went to court seeking a production order for computers, phones and notes relating to stories I’d written in the Sunday Tribune on the Real IRA, everyone thought they’d succeed.
Ten years ago another Northern Ireland reporter, Ed Moloney, had been pursued for material relating to a loyalist paramilitary he interviewed. After a year-long, hugely expensive legal battle, the courts eventually ruled in the journalist’s favour. But that case was taken under the Prevention of Terrorism Act. The PSNI were pursuing me and the Sunday Tribune under the Terrorism Act 2000, an even more draconian piece of legislation.
And the political backdrop against which detectives pursued us was hardly conducive to a progressive, liberal verdict. This is the year that two British soldiers were killed by the Real IRA after a decade without security force casualties in Northern Ireland. The London and Dublin governments, local unionist and nationalist politicians, as well as the vast majority of society, were naturally appalled.
Under these circumstances, the general consensus was that the courts would favour the police. If ever we did win it would be far down the appeal road — probably at the European Court of Human Rights in Strasbourg.
There was no way I was ever going to hand over material to the PSNI even if failure to do so carried a sentence of up to five years in jail. The reasons were two-fold.
Were I to do what police wanted my life would have been in imminent danger from the Real IRA. But, secondly and just as importantly, compliance would make a nonsense of the concept of journalistic confidentiality and the protection of sources.
In a courageous judgment, Belfast recorder Tom Burgess recognised these arguments. He acknowledged my rights under Article 2 of the European Convention. Significantly he also ruled “that the concept of confidentiality for journalists protecting their sources is recognised in law and specifically under the 2000 Terrorism Act and Article 10 of the (European) Convention”.
It is the first time since the Terrorism Act that protection of sources has been enshrined in a judgment. How police must wish they’d never taken this case. Now they are now in a significantly weaker legal position if they wish to pursue another journalist in the same way.
To win at the first hearing in a domestic court was particularly welcome and I hope that the judgment encourages police forces in Ireland and Britain to wise up. Do your job and let journalists do theirs. We are not detectives or agents or informants for the state. We exist to put information into the public domain. Full stop.
I also hope that it encourages journalists not to be bullied or lured by police into betraying their professional ethics. In my case, the police initially invited me to have an off-the-record private chat with them about my sources. No journalist should ever venture down such a dangerous and compromising route.
No journalist should be intimidated when detectives apply for a production order. As we’ve shown, such a move can be challenged and overcome. It is up to reporters and photographers to fight for press freedom, not to capitulate at the first police phone call, letter, or other approach.
On the first day of the hearing, the public, press, myself and my lawyers were cleared from the court so the PSNI could present their arguments in camera. It was Kafkaesque. How could we mount a defence when we didn’t even know what police were saying? We were fighting in a massively disadvantaged position.
And so we decided our tactics would be the exact opposite to those of the police. If their case was shrouded in secrecy, we would respond with transparency. I would go into the witness box and be open to intensive cross-examination. This wasn’t just the PSNI against one journalist and newspaper — it was an attack on the entire media.
We called a range of well-respected journalists as witnesses: Panorama’s John Ware, Channel 4’s Alex Thomson, Liam Clarke of the Sunday Times, and former Mirror editor, Professor Roy Greenslade. Apart from making their secret statement the police didn’t publicly enter the witness box themselves nor did they call any witnesses.
I suspect that the PSNI application against the Sunday Tribune was politically, not security, driven. When the Real IRA murdered two soldiers at Massereene in March it challenged the official view, promoted by the British government across the world, that the gunmen’s day in Northern Ireland was over, that militant Irish republicanism belonged only to the history books.
While much has changed in Northern Ireland there hasn’t quite been the 100 per cent transformation that the authorities portray. The state’s reaction was to make life difficult for journalists who talk to the Real IRA.
The message was, “if you interview these people, if you communicate with them in any way, we will pursue you, we will take you to court, we could even jail you”. But not interviewing the Real IRA won’t make them go away any more than the broadcasting ban made the Provisionals disappear. If we don’t talk to paramilitaries when acts of violence occur we will be forced to rely solely on official police statements for information.
During our legal battle the Sunday Tribune and the National Union of Journalists joined forces in a campaign for source protection. What was most heartening was the overwhelming response from writers, academics, lawyers, the arts world, trade union activists, the business community and ordinary members of the public. So many people genuinely believe in the freedom of the press.
In Northern Ireland that sentiment crosses the nationalist-unionist, Catholic-Protestant, left-right divide. I was delighted that even those bitterly opposed to paramilitaries supported our stance. Willie Frazer the director of FAIR, which represents thousands of people bereaved or injured by republicans, said: “Much as I loathe the Real IRA, I want to know what they’re saying not what (PSNI Chief Constable) Hugh Orde wants me to hear”.
Ex-republican informers, named as targets by the Real IRA, not only signed our 5,000-strong petition but also offered to appear in court as witnesses for the Sunday Tribune if required. If the authorities wanted to deliberately confuse the messenger with the message, in terms of paramilitary interviews, they failed.
The PSNI and their legal advisers called it completely wrong. They thought they’d walk in and win hands-down. Instead, their arguments were comprehensively rejected by the court.
I hope this judgment sets a precedent. It certainly shows that a journalist challenging police demands is no lost cause. The mere mention of the word “terrorism” isn’t enough to create a frenzy and ensure detectives get what they want. For once in these often depressing times, decent liberal principles won. And that old-fashioned concept, the freedom of the press, came back in style.
Suzanne Breen is Northern Editor of the Sunday Tribune