EDITORIAL: Judicial Review into police powers raises important constitutional law and journalistic privilege issues

Belfast High Court will hear a Judicial Review challenge into the PSNI's unlawful seizure of journalistic material beyond the scope of their search warrant in a gross act of bad faith. The judgement will have ramifications for a wide range of activists and journalists.

EDITORIAL: Judicial Review into police powers raises important constitutional law and journalistic privilege issues

By Jamie Bryson

The upcoming Judicial Review (JR) I have brought before the High Court raises important issues around the exercise of police powers and the issue of journalistic material being seized beyond the scope of warrants. It will, naturally, affect me as the applicant- but more importantly it will have ramifications for a wide range of people, including those who create journalistic material.

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It has always been my view that the first strand of this case, namely the exercise of police powers in relation to seizing material and then handing it over to a statutory body corporate without any statutory basis is a matter that will end at the door of the Supreme Court. This is not defeatist, I believe I should without any doubt win in Belfast’s High Court but one would be a fool not to recognise the political nature of our judicial system.

I say this because I have said for many years that nationalist activists have embedded themselves within every layer of the policing and justice apparatus, and the judiciary is not immune from such subversion. We have seen time and time again how the judiciary in Northern Ireland shape their interpretation of the law to fit with that which is politically expedient and how there is- and least on the part of some judges- a reluctance to do anything that would constrain the PSNI.

This creates a situation whereby the PSNI simply have to play a game of ducks and drakes to retrospectively justify their actions, and often the judiciary will simply take their word on their ‘pure’ motives. I prefer to more accurately start from the position that bad faith is the starting point for the majority of PSNI actions, until they prove otherwise.

I am constrained due to the ongoing proceedings and this naturally prevents me from revealing particular specifics relating to this case; but suffice to say that I am more convinced than I have ever been that the PSNI are not to be trusted when it comes to discharging their lawful functions with competence or impartiality; more of this all in good time.

It is a matter of public record- aired in open court- that during executing a warrant in which they lent their powers to the SIA, the PSNI swept up a range of journalistic and legally privileged material; none of which they had the power to seize or retain.

What on earth has files relating to the Kingsmill massacre, and other IRA murders, got to do with investigating door supervision compliance? Why would the PSNI lift that material if they were innocently assisting an SIA investigation into door supervisors- an investigation by the way that is perhaps one of the most ludicrous and farcical escapades one is likely to see.

If a search is likely to seize material that includes journalistic or other excluded material then an PACE Article 10 application to a Magistrate is not permitted, instead the application must be made under PACE Article 11 to a county court judge, thus ensuring a far greater degree of scrutiny than would be applied by a lay magistrate, the weakest of which the PSNI will treat as their personal favourites as an easy touch to get warrants authorised with minimum oversight or scrutiny.

Within the meaning of the legal and NUJ definition of journalism the PSNI in 2016 accepted I was a journalist in relation to NAMA, the NCA accepted I was a journalist in relation to NAMA, the PSNI accepted I was a journalist in September 2018 when they came seeking the Nicolae Nicola tape recording, yet presumably they just ‘forgot’ on 16 August 2018 that I was a journalist and as such managed to avoid the scrutiny of the county court in applying for their search warrants- which they ultimately used to seized a plethora of journalistic material.

This issue alone creates an aroma that suggests there is something more going on, especially in the context of the PSNI going before the coroner and trying to conceal the identity of IRA terrorists, meanwhile Unionist Voice named the terrorists behind the ciphers; only weeks later the PSNI happen to scoop up the Kingsmill documents whilst supposedly ‘investigating’ door supervision compliance.

Then you would have to look at the whole ‘operation’ at which point the aroma becomes a bad smell. Arrested and held for 8 hours without one allegation or question put. Then a refusal to hand over interview CD access codes, and a threat issued to my solicitor that he is prohibited from obtaining them on my behalf. This matter is still ongoing- it is a point of some note that PSNI and SIA are allowed access to the CD, but I am not. What precisely is it on the tape that they do not want the public to hear?

Then the bad smell becomes a stench when we get to the stage of the laughable attempt to impose unenforceable police bail conditions; one of which was that I wasn’t allowed to say anything, to anybody, about being arrested. That ended well for the PSNI.

Of course whilst they believed they were going to gag me and thus prevent me from challenging their assertions publicly they issued a false, malicious and misleading press statement; a statement from which they later had to privately row back.

If this wasn’t bad enough to raise suspicion as to a wider agenda; we then had the most senior police officer in the country- George Hamilton- publicly tweeting and gloating about an arrest in relation to door supervisors (the first ever arrest in the United Kingdom for such an ‘offence’). Is this really something that one would expect the Chief Constable to be commenting upon?

All of this backfired spectacularly on the PSNI. They often get away with skirting the law and operating without due regard to the constraints of their legal powers. People often just submit on the basis that if the PSNI say it is true, well then it must be true. Newsflash; the police tell lies, they scheme and they manipulate. Every word they say, every line and sentence of every communication should be interrogated and challenged. Look behind their assertions and often you will find they are hap hazard, incompetent and quite literally just making it up as they go along in the hope no one will challenge them. The emperor quite often has no clothes.

Regardless of the outcome of the High Court case, and a potential Supreme Court appeal, there is one major victory that I personally will cherish for quite some time. The PSNI have been forced to change every single notice of rights handed out following searches- often amending them by hand- due to the fact that during a preliminary court hearing, in which I appeared as an applicant in person, they had to concede that my assertion that they had been quoting non-existent legislation- the Police Property Act 1997 (never existed) – for over 20 years was indeed correct.

The aforementioned win is a humiliating defeat for the PSNI, and highlights the importance of every citizen challenging them and questioning whether they are acting in compliance with the law. Their annoyance at having to change thousands upon thousands of forms, and the embarrassment of having to admit their glaring error, has been quite a sight to behold.

There are many intriguing legal points to be argued out, many more twists and turns to come. One thing is for sure, this case will have consequences for the exercise of police powers and for the seizure and retention of journalistic material.

I said from the very outset that this matter will end before the Supreme Court and I still hold that view, but if the High Court decided to prove me wrong then I will be more than happy with that.

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