Investigatory Powers Tribunal awards damages to Northern Ireland journalist after police interference in communications data

About this case:

• Citation:
  [2026] UKIPTrib 4
• Judgment:
  External link
• Court:
  Investigatory Powers Tribunal
• Judge:
  Lady Carmichael, Chamberlain J and Stephen Shaw KC

Revelations of public authority interference with journalists’ communications led Vincent Kearney and the BBC to raise human rights claims with the Investigatory Powers Tribunal in 2024. Following concessions made by various of the respondent public authorities, remedial issues in the claim came before the tribunal.

The claim was heard by Lady Carmichael, Chamberlain J and Stephen Shaw KC, with Jude Bunting KC and Jonathan Scherbel-Ball appearing for the claimants and various counsel, including Cathryn McGahey KC and David Reid for the Police Service of Northern Ireland, for the respondents.

Applications for mobile phone data

Vincent Kearney served for 13 years as home affairs correspondent for BBC Northern Ireland before leaving that position in 2019. Shortly after his appointment in 2006, he was the subject of an application, made by MI5 under the Regulation of Investigatory Powers Act 2000 (RIPA), to obtain various pieces of communications data. The application did not, however, acknowledge that its subject was a journalist or that its purpose was to identify his journalistic sources.

In 2009, MI5 made a further RIPA application seeking all call-related data from Mr Kearney’s phone. Although that application did identify its subject as a journalist, it failed to reference the stricter standard applied to applications seeking to identify journalistic sources; namely, that there required to be an “overriding requirement in the public interest” to such effect. The same year, applications made by the Police Service of Northern Ireland (PSNI), seeking to identify the self-described member of the Continuity IRA who in a call to Mr Kearney claimed responsibility for the murder of PC Stephen Carroll, failed similarly to note the stricter applicable standard.

In the wake of a 2011 documentary produced by Mr Kearney alleging failures of independence in the Office of the Police Ombudsman for Northern Ireland, the PSNI sought further data from Mr Kearney’s phone. In a wide-ranging request incorporating GPS data over a four-month period, the PSNI again failed to acknowledge Mr Kearney’s identity as a journalist. Data sought under the same authorisation were later obtained by Durham Constabulary, acting as part of a separate investigation into police collusion in the Loughinisland massacre, and were subsequently retained. Further PSNI investigations were successful in obtaining data from Mr Kearney’s phone despite similar failures to apply the stricter standard applicable to requests for journalistic communications data.

After various of the public authority respondents to the claim conceded unlawful interference in Mr Kearney’s journalistic data, two issues fell to be considered by the Investigatory Powers Tribunal: namely, whether those concessions went far enough in acknowledging unlawfulness but not substantive disproportionality, and the nature of the appropriate remedy.

Interferences to be justified by overriding public interest requirement

Beginning by noting the applicable legal principles under Article 10 of the European Convention on Human Rights, the tribunal observed: “In Goodwin v UK (1996), the European Court of Human Rights … held that protection of journalistic sources is ‘one of the basic conditions for press freedom’, without which ‘sources may be deterred from assisting the press on matters of public interest’, and that ‘the vital public watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected’. That being so, a measure which interferes with the confidentiality of journalistic sources cannot be compatible with Article 10 unless it is ‘justified by an overriding requirement in the public interest’. The necessity for any such measure must be ‘convincingly established’.”

It continued, referring to various Strasbourg authorities: “A review of the case law shows that, if the public authority cannot show that there are no other ways of achieving the measure’s objective, a measure which interferes with journalistic sources is likely to be disproportionate. However, establishing that there was no other way of achieving the measure’s objective will not be enough on its own to show that the measure was proportionate. Some objectives will be insufficiently important to outweigh the vital public interest in protection of a journalist’s sources. In Goodwin … and Financial Times [v UK (2010)] …, the private interests advanced there (the desire to eliminate damage through further leaks and unmask a disloyal employee) were insufficient. The fact that a source may have acted unlawfully in conveying the information is not enough on its own to justify interference with journalistic sources.”

Having found all six sets of interferences to be neither in accordance with the law nor proportionate, it proceeded to discuss the nature of the appropriate remedy by reference to Faulkner v Parole Board (2013): “Domestic courts are not bound by the principles applied by the Strasbourg Court in awarding compensation under Article 41 of ECHR, but it must take those principles into account … Courts should aim to pitch their awards at the general level indicated by Strasbourg awards in comparable cases, so far as that can be estimated … The awards made by the Strasbourg Court, including those made in respect of non-pecuniary loss, reflect the value of money in the contracting states. It is therefore necessary to focus on awards made to applicants from the UK or from other countries with a comparable cost of living.”

Reviewing the relevant authorities, the tribunal concluded: “We are persuaded that we should make an award of damages to Mr Kearney in respect of the interferences with his communications data by PSNI … [T]he interferences in this case were numerous, and took place over a period of years, and many years after the decision of the Strasbourg Court in Goodwin. Mr Kearney has provided a witness statement setting out in some detail the impact of the interferences on him, and on the trust that he can expect potential sources to place in the confidentiality of their communications with him. That is an important factor, bearing in mind that 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.”

The tribunal accordingly awarded £10,000 in Mr Kearney’s favour against the PSNI and MI5 respectively.