Submission to UN Special Rapporteur on Promotion & Protection of the Right to Freedom of Expression & Opinion:
May 2003

British Irish Rights Watch is an independent non-governmental organisation that monitors the human rights dimension of the conflict and the peace process in Northern Ireland. Our services are available to anyone whose human rights have been affected by the conflict, regardless of religious, political or community affiliations, and we take no position on the eventual constitutional outcome of the peace process.

This report to the United Nation’s Special Rapporteur on Freedom of Expression and Opinion concerns the arrests of two journalists in Northern Ireland after they published transcripts of clandestine tape recordings of conversations between Martin McGuinness MP and various persons in a biography they had written about him. British Irish Rights Watch is concerned that these arrests were oppressive and have the potential to adversely affect their careers and, indirectly, may discourage investigative journalism in Northern Ireland.

Liam Clarke is the Northern Ireland editor of the Sunday Times. He and his wife Kathryn Johnston are the co-authors of an unofficial biography of Sinn Féin leader Martin McGuinness MP, From Guns to Government. A new paperback edition of the book was published recently. It included transcripts of tape recordings of four telephone calls in 1999 and 2001 between Martin McGuinness and Jonathan Powell, chief of staff to Prime Minister Tony Blair MP; Mo Mowlam MP, at that time Secretary of State for Northern Ireland; Sinn Féin president Gerry Adams MP; and a woman in the USA called Kathleen. The tape recordings were allegedly made by the Police Service of Northern Ireland (PSNI) at the request of the secret intelligence service, MI5,[1] in which case the decision to tap the telephone of Martin McGuinness, himself a member of Parliament, would have been authorised at the highest political level.

On 30th April 2003 two newspapers, the Times and the Sun, published extracts from the transcripts, and the Irish News[2] reproduced them in full. While the publication of the transcripts was embarrassing for the government, it raised no issues of national security.

At around 8:30 pm that same evening, armed police officers arrived at Liam Clarke and Kathryn Johnston’s home. The police searched the house and took away four computers and large numbers of documents and other items, including list of the journalists’ contacts. The search took some five hours and police officers scrutisined all the documents before deciding what to seize. Many items were seized despite the fact that they had nothing to do with official secrets or national security, and despite the fact that they had come from official sources or, in some cases, were documents that had previously been shown to the police. The police officers conducting the search ignored the journalists’ explanations of the provenance of some of the documents, and also their requests not to seize documents that compromised the privacy of others or were of a personal nature. The PSNI also raided the Belfast office of the Sunday Times, declining Liam Clarke’s offer of a key and instead breaking down the door. The Sunday Times’ lawyers are seeking to recover 18 bags containing documents, computer disks and computer disks, together with three other bags containing computer equipment. The officer in charge of the operation was Chief Superintendent Phil Wright.[3] It remains unclear whether the Chief Constable of the PSNI or some other person authorised the arrests[4].

Liam Clarke and Kathryn Johnston were arrested under the Official Secrets Act at 2:00 am on 1st May[5]. They were taken to the new police interrogation centre at Antrim[6]. They were each interviewed four or five times[7] in the presence of their lawyers. Liam Clarke was not allowed to make any telephone calls. Kathryn Johnston was eventually allowed to make calls concerning the welfare of their eight-year-old daughter. Her calls were listened to by police officers. Neither journalist answered any questions that would have revealed their sources. They were released on police bail after almost 24 hours in custody.[8] The PSNI took fingerprints and DNA samples from both journalists, and photographed Liam Clarke.

On 29th April 2003 a retired Special Branch[9] officer was arrested. On 2nd May he was charged under the Official Secrets Act and released on bail.[10] His former role included the monitoring of bugged telephone conversations in Martin McGuinness’ home town of Derry[11].

Two other journalists have also been contacted by the PSNI concerning the leaked tapes. David Lister, a journalist with The Times, was questioned under caution on 1st May 2003. He was interviewed at his solicitor’s office by appointment. Henry McDonald, Ireland editor of the Observer, was questioned on 7th May at Castlereagh police station[12]. Reportedly he was questioned about a signed confidentiality agreement found at the home of the former Special Branch officer, whose autobiography Henry McDonald is said to be ghost-writing[13].

Liam Clarke and the Sunday Times are both the subject of an injunction preventing them from publishing any further revelations by a man calling himself Martin Ingram, who has alleged that a British army intelligence section known as the Force Research Unit engaged in collusion with paramilitaries in Northern Ireland. This injunction was covered in an earlier report by BIRW to the Special Rapporteur in October 2000. Many of the allegations made by Martin Ingram have recently been substantiated in a report by the Commissioner of the Metropolitan (London) Police, Sir John Stevens[14]. Liam Clarke was interviewed concerning Martin Ingram by the Metropolitan Police under police caution in the presence of his solicitor on 20th July 2000 at Musgrave Street RUC station in Belfast. On that occasion, he was not arrested and his home was not searched. When his home was searched on this occasion, papers relating to Martin Ingram were seized, as were documents relating to a former police officer who has made allegations about collusion between the police and paramilitaries, John Weir, and other documents concerning equally sensitive matters.

The items seized were not returned to the journalists until 6th May, by which time the PSNI had had six days to scrutinise them. Certain documents, mainly relating to a libel trial, were retained by the police, who also informed the journalists that they had photocopied some of the documents they returned. They refused to specify which documents had been copied or why. They also said that they had imaged the hard drive of their computers, which means that they can scrutinise their contents at their leisure.

Martin McGuinness is Sinn Féin’s chief negotiator in the Northern Ireland peace process. At the time the tape recordings were made, he was Minister for Education in Northern Ireland and a Member of Parliament. It is very much a matter of public interest that such a person should be clandestinely bugged. In arresting these two journalists, the police are engaging in shooting the messenger. The transcripts they published do not jeopardise national security in any way. It is difficult to escape the conclusion that the journalists were arrested as a punishment for having made disclosures that caused embarrassment to the government. It is also clear that large quantities of materials were seized from their home that had no bearing on this particular issue and that the police were indulging in an unjustified fishing expedition. This seizure has two undesirable consequences. First, the police have been able to ascertain what information Liam Clarke has in his possession in relation to Martin Ingram, John Weir and many other sensitive matters that he has investigated as a journalist. Secondly, the seizure has the potential to compromise many people who have acted as confidential sources of information to both journalists, whether in relation to their biography of Martin McGuinness or other matters. People who have spoken to them in the past may not be prepared to do so again in the future, and other potential sources may not come forward, for fear that their contact with them will become known to the police. This in turn may affect the work of other investigative journalists, because people generally may not have confidence that their confidentiality can be protected. Similarly, potential whistle blowers may be discouraged from disclosing information in future.

It is because of these consequences that the freedom of the press is so jealously guarded in a democracy. While governments are entitled to require confidentiality from their employees and agents, if they act in such a way as to arouse public disquiet, such as clandestinely tapping the telephone of an elected representative, then their right to such confidentiality may be eclipsed by the public’s right to know that it is engaging in such behaviour. Arresting journalists who expose such acts and attempting to force them to reveal their sources so that they can prosecute their employee or agent is manifestly oppressive and contrary to the freedom of information that is necessary in a democratic society. In this case, the arrests of these two journalists may have potentially serious consequences for their careers and may have placed a chill factor on investigative journalism in Northern Ireland and beyond.

We respectfully request the Special Rapporteur to transmit this report to the government of the United Kingdom and to seek their assurance that these two journalists will not be charged with any offence.

  1. Blair under fire for arrest of reporter, by Nicholas Rufford, Sunday Times, 4 May 2003
  2. Willie Thompson, he’s an ass said Blair’s top aide, Irish News, 30 April 2003
  3. Arrested by the serious gossip squad, by Liam Clarke, Sunday Times, 4 May 2003
  4. Blair under fire for arrest of reporter, by Nicholas Rufford, Sunday Times, 4 May 2003
  5. Official Secrets & Official Lies, by Carrie Twomey, The Blanket, 4 May 2003
  6. Arrested by the serious gossip squad, by Liam Clarke, Sunday Times, 4 May 2003
  7. Official Secrets & Official Lies, by Carrie Twomey, The Blanket, 4 May 2003
  8. Arrested by the serious gossip squad, by Liam Clarke, Sunday Times, 4 May 2003
  9. Te intelligence wing of the PSNI, now re-named and undergoing re-organisation
  10. Detective charged over Mowlam phone call leak, Daily Telegraph, 6 May 2003
  11. Secret tapes furore leads to arrests, by Jim Cusack, Sunday Independent, 4 May 2003 – the name given for the former officer in this article is incorrect
  12. Official Secrets & Official Lies, by Carrie Twomey, The Blanket, 4 May 2003
  13. Police talk to editor about Mowlam leak, by Thomas Harding, Telegraph, 7 May 2003
  14. Stevens Enquiry 3: Overview & Recommendations, 17 April 2003