McCullough Review identifies PSNI failures but no ‘widespread or systemic’ unlawful surveillance

However, the McCullough Review found there was no basis for concerns that PSNI surveillance was “widespread or systemic”.

The PSNI’s chief constable appointed Mr Angus McCullough KC to conduct an independent review of its “use of surveillance against journalists, lawyers and other groups during a period from 2011 to 2024”.

It found that eight journalists were subject to unlawful use of powers to seek to identify their sources, and identified 20 unlawful uses of covert powers  – more than double the figure given to the Northern Ireland Policing Board (NIPB)  in June 2024.

“The wider concerns of a perceived systemic abuse of our use of covert powers originally arose from an investigation led by Durham Constabulary, in which two journalists, Trevor Birney and Barry McCaffrey were arrested and had their property searched in August 2018,” said PSNI Chief Constable Jon Boutcher.

“It subsequently became clear in the course of legal proceedings that warrants issued for the searches and for other surveillance activity were unlawfully obtained. I apologised for those mistakes and actions.”

He added: “I gave a commitment that the Review would be given unrestricted and unsupervised access to all police systems and records and would receive the full support and cooperation of all officers and staff.

“This has been a thorough and comprehensive piece of work that has recommended a number of improvements to ensure we conduct surveillance with proper consideration to those people from a special category status.

“It is important to say that applications for communications data, the major focus of this report, is whereby the metadata of the telephone numbers involved in a call are provided to the police, that communications data does not provide policing with any information of what was said or communicated.

“It simply tells the police what telephone numbers are contacting each other, but not what people are actually communicating.”

Mr Boutcher said properly exercised covert powers have an “important role to play in the detecting, investigating, prosecution and prevention of the most serious crimes”.

“Mr McCullough makes reference to being struck by the utility of these powers in keeping the public better protected from a range of threats including organised crime, terrorism, paedophile rings and large scale drug supply,” he added.

“This underscores the pressing need for such powers and the enormous, if unseen, benefit from them being properly exercised. Appropriate, lawful and proportionate use of these powers helps keep everyone in Northern Ireland safe and builds confidence in policing.”

Mr Boutcher said the report does “not identify any issues of misconduct by individual officers”.

“What it does identify is individual authorisations where we as a police service could have done better and I am committed to ensuring we do in the future,” he said.

“The Review identified concerns in relation to some specific authorisations, inconsistencies in processes and record keeping, but must be seen in the context of more than 110,000 authorisations within the review period.

“I am pleased to learn that the Review has found no basis for concerns that PSNI surveillance of journalists or lawyers is widespread or systemic. The Review rightfully highlights that we have to improve our processes, and we will.”

Mr Boutcher said a report published in June 2024 included details of 323 applications relating to journalists, however, Mr McCullough’s Review identified 378 applications.

He explained: “The two factors which contributed to the differing numbers: one is the different approaches to how systems were searched and relevant applications identified; and the second is that Mr McCullough’s Review covered a slightly longer period of time, approximately six months longer than the June 2024 report.

“I have met with a number of key stakeholders to explain the contents of the report, including Sir Brian Leveson from the Investigatory Powers Commission, Lady Chief Justice, Dame Siobhan Keegan, Attorney General, Dame Brenda King, members of the NIPB, the First and deputy First Minister and the Justice Minister.

“We have informed the Information Commissioner’s Office relating to data protection compliance and the Investigatory Powers Commissioner’s Office of direct surveillance applications as they were not previously informed of involving those attracting special status.”

Mr Boutcher said he was aware of commentary calling for a Public Inquiry into these matters but the report shows that “no such inquiry is necessary”.

“As part of the Review, Mr McCullough has provided information intended to assist with more accurate media reporting and to help with ‘myth-busting’,” he said. “In his report, Mr McCullough has identified a combination of factors which have had a compounding or ‘snowballing’ effect that has given rise to concerns about the PSNI. His Review helpfully corrects this misrepresentation of the position.

“I am conscious that with such a detailed report there will be a natural tendency for some readers to focus only on where we got things wrong.

“I have been reassured by Mr McCullough’s comments about the ‘far more numerous examples of careful and considered practice’ processed by conscientious professionals ‘in full accordance with the applicable legal framework and its safeguards’. I hope the Policing Board and the public will be reassured notwithstanding that we have to tighten up our processes.”

Mr Boutcher said he saw the McCullough Review as “being akin to a health check that has highlighted a need for improvements”.

“Organisationally, I can absolutely stipulate that we will make those improvements,” he said. “We will implement the recommendations of the Review and adhere to safeguards and considerations for those with a special category status. We want to be the best across policing.”

The chair of the NIPB welcomed the approach taken by the chief constable and his senior team in relation to the commissioning of this report and the “access afforded to the Reviewer”.

“We acknowledge that the opening up of this aspect of policing in this way is unprecedented,” said Mukesh Sharma.

“The report outlines practices that represent failures by policing in meeting the strict legislative provisions for the use of surveillance powers, and complying with the principles of accountability, proportionality and respect for press freedom.

“It raises particular questions around the efficacy of the systems used by the PSNI and the impact this has had on the candour with which the PSNI has engaged in scrutiny and accountability processes by external reviewers; authorising procedures and the accountability of authorising officers; the adequacy of existing oversight by appointed reviewers; and disclosure processes to tribunal proceedings, and with other statutory bodies including the Policing Board.

“The police necessarily have access to powers, including intrusive powers, to keep us all safe. However, necessarily there must be protections and safeguards for their use.

“Policing can never be above the law, the public rightly expect that they comply with it at all times. The report, and its recommendations, also sends an important message to other policing and law enforcement institutions who use such powers.”

Mr Sharma said since the issues around surveillance first came to light in 2023, “very active steps” have been taken by the Policing Board to try to bring openness and transparency to media and other concerns being raised through cases at the Investigatory Powers Tribunal.

He said: “In June 2024, the chief constable’s second report to the Board did not provide the assurance needed, and we clearly told the chief constable it did not.

“As a result of the Board’s ongoing scrutiny, the chief constable commissioned the McCullough Review, and the Board subsequently agreed that this report would be treated as a Section 59 report, under the Police NI Act 2000 legislation.

“So serious was the issue viewed, that for the first time the Board opted to use this Section 59 power.”

Mr Sharma said the Board has convened a special meeting with Mr McCullough and with the chief constable, to have an initial discussion on the findings and the conduct of the review against the terms of reference that were set.

“The Board now wishes to take some more time to review the report’s findings, and to receive a formal response from the chief constable on remedial action and plans for formal implementation of the recommendations now made, before taking a decision on next steps,” he added.

“We want to ensure, as the report says, that our next steps will enable PSNI to achieve consistently high standards in this area of policing and to enable confidence in PSNI conduct in this area. In terms of those next steps we have ruled nothing in or out at this stage.”

Mr Sharma said trust between the public, the media, the legal profession and policing institutions “is paramount”.

“This report shines a light on how that has been damaged, and policing now has a job of work to do to restore confidence,” he added.

“The Board is agreed that this report and its findings are extremely serious and will now seek to ensure the step-change outlined by the chief constable in our meeting remains a key focus for the service until it is delivered.”