Case Summary and Outcome

The Belfast Crown Court dismissed an application to have a journalist reveal her confidential source for published articles pertaining to an ongoing criminal investigation. The application was brought by Alex McCrory, who was indicted on murder and terrorism related charges, against a journalist and editor of the Sunday World Newspaper. McCrory claimed disclosure of the identity of the journalistic source was necessary to determine if there was additional evidence available which could assist his case or if there had been prosecutorial misconduct.  The journalist claimed that she wrote the articles based on memory and did not possess any documents from the source. She also argued that the journalistic code of ethics and national law prohibited disclosure of her sources. Citing national statutory provisions and case law from the European Court of Human Rights, the Court affirmed the importance of the protection of journalistic sources for press freedom and found the defendant failed to meet the statutory tests for disclosure.

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Facts

The defendant Alex McCroy and two co-defendants were charged with directing terrorist acts, attempted murder, and possession of firearms, among other crimes, in relation to an attack on a police vehicle which took place on 2 December 2013. McCrory was later identified and subsequently apprehended based on evidence gathered through covert police surveillance of a meeting between the defendants.

The Sunday World newspaper published two articles written by Paula Mackin about McCrory’s case. The first article was published on 8 February 2015 and claimed to quote from the covert recording of the defendants’ meeting which lead to their arrest. The second article, published on 8 November 2015 claimed the Sunday World had seen a highly sensitive security document, as well as a 15 page disclosure document which were based on police interviews with the defendants, and proved the defendants’ communications had been “bugged.” (para. 10)

A transcript of the meeting which was recorded covertly had been included in the official court documents and papers served upon the legal representatives of the defendants.  Details of the case, including the evidence gathered from the transcript, were also discussed in open court and reported on by major news outlets.

McCrory brought the application against Mackin and Mr James McDowell, former editor of the Sunday World Newspaper and Sunday World Newspapers Limited, requesting disclosure of the identity of the journalistic source, as well as all records relating to the communications between the source and Mackin. Pursuant to section 51A and section 51B of the Judicature (Northern Ireland) Act 1978 McCrory sought the disclosure of original and copied notes and records relating to meetings with a “security source” who allegedly provided confidential information relied on for two articles published in the Sunday World Newspaper about his case.  He based his claim on three grounds:

1. The contents of the articles suggested that the Sunday World may have based their reporting on a different version of the transcript than the one relied on by the prosecution, leading McCrory to believe that there were multiple versions of the transcript.
2. The contents of the articles further suggested that the police may have had a second expert’s report in their possession which was materially different from the one served as evidence in the case. The article described McCrory’s voice as being distorted in the recordings which suggested that the version the newspaper had may have been manipulated. Further, the stated method used for assessing the voice recording in the article was different than the one presented by the prosecution, which could call into question the validity of the identification of the defendants.
3. The contents of the articles and the possible multiple versions of reports call the integrity of the officers, the investigation, and the prosecution into question. The disclosure of sensitive security documents by the police or MI5, as well as their possible alteration, could constitute a criminal offense which would compromise the prosecution’s case.

Paula Mackin provided a sworn affidavit on 10 August 2018 in relation to this case and on 14 November 2018 she gave further evidence and was cross-examined. In her affidavit she confirmed that she was the author of the impugned articles while employed by the Sunday World newspaper as a journalist. She stated that she had been reporting on the activities of dissident Republican organizations since 2012. Over the years she gathered information for her reporting from:

1. Contacts with sources, on the conditions of anonymity and confidentiality, who were willing to provide information that was relevant to the investigation.
2. Consideration of court hearings.
3. Research from sources such as internet publication and other news reports. [para. 52]

Regarding the reporting for the impugned articles, Mackin stated she was contacted by a source who claimed to have information pertinent to the case. She met the source at a “safe place” and no money was exchanged for the information. As required by confidentiality protocols, she did not bring a mobile phone, recording devises or even a pen or paper to take notes. At the meeting, she was shown the impugned disclosure document and was allowed to read it, but not take notes or make any copies. The source explained the contents of the documents to her and used a scale of 1-10 for identifying the voices in the recordings transcribed in the document. The source did not say if that scale was the same used by the police or authorities when assessing the recordings. She did not hear any of the recordings during the meeting.  Because she had no notes from the meeting with the source, she had to write both the articles based on her memory of the meeting and the document she saw. When questioned about the alleged “more than 100 hours of bugged dissident meetings” described in her article, she clarified that she was only referring to the transcript included in the disclosure document as she never had access to any of the actual recordings. During cross-examination about the various discrepancies between the evidence she described in her articles and that which the prosecution held, she explained that she had only reviewed the one disclosure document and that “it was not her intention to mislead her readers.” She apologized for any unintentional inaccuracies but claimed she did her best to report from memory on material that related not only the case at hand but also to a broader range of dissidents she had reported on.

Regarding the request to disclose her source materials, Mackin claimed there was nothing to disclose since she did not have any notes from the meeting or copies of any documents.

She further refused to disclose her sources relying on “paragraph 7 of the National Union Journalist Code of Conduct which provides that a journalist ‘protects the identity a sources who supplies information in confidence and material gathered in the course of her/his work’ and section 10 of the Contempt of Court Act 1981 (“section 10”).” [para. 70] She further invoked the right to life of her source (Article 2 of the European Convention on Human Rights) based on a “present and continuing” security threat from the “dissident Republicans.”

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Decision Overview

The primary considerations for the Court were the right of the defendant to a fair trial and the protection of the journalists’ rights to freedom of expression and protection of sources.

The Court first considered the question as to whether Mackin had any impugned materials to disclose. Based on her affidavit and evidence, the Court was persuaded that her testimony was truthful, despite “a degree of overstatement in the way the article was written.” [para. 81] Therefore the Court declined to issue a summons compelling Mackin to disclose any alleged records set out in the application, as there was likely nothing to disclose.

The Court next addressed the request to disclose the identity of the “security source” by establishing the rights invoked and the relevant legal tests. The Court affirmed the legal standards for protections of sources guaranteed on the national level under domestic statutory provisions and the Human Rights Act of 1998, as well as on the regional level.

Employing the statutory test in Section 51A of the Judicature Act 1987, the Court had to assess whether the source would “likely” constitute “material evidence,” and whether it would be “in the interest of justice” to compel the journalist to disclose their identity. [para. 84]

The “interests of justice test” under section 10 protects the confidentiality of sources “unless it can be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.”  [para. 86] The Court again affirmed the requirement that disclosure would have to be proved “necessary.”

Article 10 ECHR and case law from the European Court of Human Rights further guarantee the rights of the press and the protection of sources unless a “pressing social need for the restriction” can be “convincingly established” and that “limitations on the confidentiality of journalistic sources call for the most careful scrutiny by the court”.  [para. 89]  The Court cited heavily from the seminal European court case Goodwin v The United Kingdom [1996] 22 EHRR 123 to underscore the duty to protect the aforementioned rights:

“Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest.”

The Court then cited Ashworth Hospital Authority v MGN Limited [2002] 1 WLR 2033 to establish that the European standards have been fully domesticated under national law and as such the application of Section 10 must align with Article 10 and the “Goodwin principles.”

Considering the “potential clash” of rights, “careful scrutiny of the circumstances” was required in the present case. In order to evaluate whether the identity of the source could provide “material evidence,” the court applied tests set out in R v O’N [2001] NI 136 and R v Hoey [2006] NICC 38 which stated documents can be considered material evidence if they assist the defense in proving innocence, undermine the prosecution or “avoid a miscarriage of justice.” [p. 18]

McCrory contended that disclosure was necessary to determine if there was additional evidence  available which could assist his case or if there has been prosecutorial misconduct. The Court, however, found that the noted discrepancies in the alleged versions were insubstantial and were likely the result of the article being based on Mackin’s memory of the document, her own  research as well as her propensity for “overstatement” and “dramatic language.”  If additional evidence did exist, it would be the prosecution’s responsibility to disclose it, not the source’s.

The Court quoted from a previous and related application to confirm “that the recordings relied upon have been properly preserved and that they have not been tampered with, altered or damaged.”  [p. 22]   Since the Court was unaware of any challenges to the expert opinion relied on by the prosecution, the Court dismissed claims of potential prosecutorial misconduct related to alleged tampering of the voice recordings or misidentification.

Based on the evidence in the criminal proceedings the Court determined that the defendant failed to meet the statutory test for disclosure of sources and that there was insufficient evidence of undisclosed documents or prosecutorial misconduct. On those grounds, it was not “not necessary to conduct a balancing exercise between the undoubted rights of the defendants to a fair trial and the rights of the directed persons to protect confidential sources.”

The Court also found that there was insufficient evidence to engage of the right to life of Mackin and her source under Article 2 of the European Convention on Human Rights. The application was thereby refused.

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