Seizure of journalistic material unlawful: Police Ombudsman

Published Date: 03.10.2004

The Police Ombudsman, Mrs Nuala O'Loan, has completed an investigation into 20 complaints from 'The Sunday Times' newspaper, two journalists and a former RUC officer about a PSNI operation that led to questions being asked of Prime Minister Tony Blair in the House of Commons.

The Police Ombudsman's investigation has strongly criticised the handling of searches at the homes of the former RUC officer and two journalists and has described the seizure of journalistic material as unlawful.

However, Mrs O'Loan has also upheld the right of the police to make arrests during the operation and has said she found no evidence to suggest that the Chief Constable misled the Policing Board about the matter.

The complaints arose from a series of searches and arrests following the publication on Tuesday April 29, 2003 of the paperback edition of a biography of Sinn Fein MP Martin McGuinness. The book included material which was alleged to be secret and to which it was said the authors should not have had access.

On the evening of the publication, the police received information that 'The Times,' and 'The Irish News' newspapers planned to publish extracts from the book the next morning. They also linked a named former RUC officer with the information from the book.

Shortly after midnight (Wednesday, April 30 at 00:35 am) police began a search of the former policeman's home and recovered documentation.

That night at 8.30pm police began a search of the home of the two journalists who had written the biography. A substantial quantity of documents and computer equipment was seized. Both the journalists were arrested under the Official Secrets Act. During the period of this second search, the police also forced an entry into the Sunday Times offices in Belfast and seized documentation.

The Police Ombudsman has upheld a complaint from the former policeman that the timing of the search of his house, which began shortly after midnight, was unreasonable and that it could have waited until seven o'clock in the morning.

"The main purpose had been to recover the 'secret material' in case the policeman had destroyed it, but the book containing the material had already been on sale 15 hours earlier," the report noted.

The Police Ombudsman also supported the man's complaint that the search compromised the safety of his family: he and his family have since moved home. Mrs O'Loan said she was satisfied that the police failed to give the manner of the search due consideration and their approach risked compromising the safety of the family.

The Police Ombudsman concluded that the subsequent search at the home of two journalists was "poorly led and was an unprofessional operation", and was lacking in the minimum standard of supervisory control. She upheld a complaint from the journalists that the particular search warrant the police had obtained from a Justice of the Peace did not allow them to seize material being held for journalistic reasons. The report said the seizure of this journalistic material was therefore unlawful:

"The evidence suggests that (the police officer) did not fully inform the Justice of the Peace of all the facts and particularly he did not advise him that the occupiers of the premises were journalists and there was a likelihood of coming in contact with such material. The police seized a substantial amount of material, some of which was either journalistic or legally privileged material not covered by the search warrant."

The journalists had also complained that police officers did not allow them to move freely around their house, make telephone calls or allow them adequate time during the search to make arrangements for the care of their daughter, who had been sleeping at a neighbour's house:

"The (journalists)..were not under arrest whilst the search took place and there should not have been any restrictions whatsoever placed on them, including their movement or right to make telephone calls. They were not in any way hindering the police search.

The complainant should have been allowed to go to her neighbours or at the very least telephone them whilst the search was taking place to make alternative arrangements (for her daughter) and should not have had to wait until 1.30 am when she was told she was under arrest, " the report said.

The Police Ombudsman also substantiated complaints from the Sunday Times that the search of its premises in Belfast was illegal and the seizure of material unlawful. She also upheld the complaint that the decision to force an entry into the building was wrong. Mrs O'Loan said it was unreasonable and disproportionate of the police to force an entry into the newspaper offices, particularly as one of the journalists had offered to supply a key. She said the police officer in charge of the office search was not willing to wait for the key and this was wrong:

"It was quite obvious that the building was unoccupied and the office was locked. Police officers were in attendance and the scene was quite secure, therefore there was no chance of losing evidence. The key could easily have been dispatched to Belfast within half an hour.

Decisions of this nature can be crucial to the reputation of the PSNI. The breaking down of the door produced a media frenzy and resulted in the Prime Minister being asked questions in the House of Commons."

However, the Police Ombudsman regarded as unsubstantiated a number of complaints from the former police officer and from the journalists. Mrs O'Loan said she had not found any evidence to suggest that police had released details of the former police officer's home to the media as had been alleged. Nor did she uphold a complaint which alleged that during an interview a PSNI officer has deceived the person being interviewed by saying that he was acting under the direction and authority of the Chief Constable.

The Police Ombudsman did not substantiate complaints from the journalists about the need for their arrests, allegations that the timing of the arrests was disproportionate and that their detention was unlawful. She took a similar view on a complaint about the use of armed officers

"I have concluded that it would have been unreasonable for police to travel with firearms on their belts as is normal, and then set them to one side before executing a search warrant, even at a house where there was no perceived threat."

Mrs O'Loan found no evidence to support an allegation that the Chief Constable later misled the Policing Board about his knowledge of the matter:

"I am satisfied that the Chief Constable was aware of the general nature of the allegation (about the information in the book) but was not involved in the actual decision making process of the search and arrest operation. This was correctly left to other subordinate senior police officers."

The Police Ombudsman has acknowledged that the officer leading the operation had been on continuous duty for 36 hours which may have impacted on decisions made. However she has made disciplinary recommendations in respect of eight officers involved in the operation, ranging in rank from Constable to Chief Superintendent.

Mrs O'Loan has also made a series of recommendations to PSNI arising from the investigation, including the introduction of new policy whereby a PSNI officer of a least Assistant Chief Constable rank would take the lead in dealing with such incidents, thereby ensuring proper strategic planning, management and oversight.


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