The legality of arresting two journalists for allegedly stealing a confidential document is to be challenged in court after it emerged a crime was not reported to police.
Lawyers for the documentary makers said a judge will be asked to assess the lawfulness of their detention as part of an already listed High Court case into other aspects of the police operation.
Award-winning reporters Trevor Birney and Barry McCaffrey were arrested in Belfast in August over the alleged theft of confidential material from the offices of Police Ombudsman for Northern Ireland Dr Michael Maguire.
A police press release issued at the time stated the investigation was triggered when the Ombudsman reported the theft to police.
That claim has now been directly contradicted by the Ombudsman’s office itself, which has insisted: “We did not make a complaint of theft.”
After Dr Maguire’s position was reported in the Irish Times on Thursday, the men’s lawyers signalled their intent to raise the issue in court.
Judicial review proceedings questioning the police basis for pursuing warrants for the arrest and search operation have already been initiated in Belfast High Court.
Solicitors Niall Murphy and John Finucane, who represent Mr Birney and Mr McCaffrey respectively, said the issue of whether a criminal report of theft had been made by the Ombudsman would now form part of the case.
“Confirmation that there is no criminal complaint of theft fundamentally undermines the entire integrity of the decision to pursue this flawed arrest strategy,” said Mr Murphy.
Mr Finucane added: “That PONI have confirmed they did not in fact make a statement of complaint for theft adds to the already deeply worrying nature of this arrest and the entire investigation.”
Mr Birney and Mr McCaffrey were questioned for 14 hours on how material held by the Ombudsman ended up in the reporters’ documentary on the notorious Loughinisland massacre of 1994.
They were released to return for further interviews later this month.
The six men murdered when Ulster Volunteer Force gunmen opened fire inside the Heights Bar in Loughinisland, Co Down, in June 1994 were football fans who had gathered to watch the Republic of Ireland play in the World Cup.
The 2017 documentary by Mr Birney, 51, and Mr McCaffrey, 48, broke new ground by publicly naming those it said were suspects.
Durham Constabulary led the investigation into the journalists, having been asked by the PSNI to take on the sensitive probe.
With the No Stone Unturned film exploring persistent claims of security force collusion with the loyalist paramilitaries who committed the murders, PSNI chief constable George Hamilton called in an external force to probe the theft allegations, citing potential conflict of interest concerns.
In a press release issued after the early morning arrests on August 31 this year, Durham Constabulary said: “Officials from PONI reported the theft to PSNI, who in turn asked Durham Constabulary to conduct an independent investigation.”
The Ombudsman has now challenged that assertion.
Dr Maguire did meet with police a day after first seeing the documentary, but his office claims that was to flag potential risks to the safety of those individuals who had been named, not to report a theft.
A statement from the Police Ombudsman’s Office said: “On October 4 2017, the day after we had a viewing of the documentary, we briefed PSNI that it had identified a number of individuals, who may now be at risk, and that it had shown extracts from what appeared to be a Police Ombudsman document, albeit in different format to our document. We did not make a complaint of theft. We understand that PSNI commissioned Durham Police to investigate the means by which the film’s production team secured access to the material, whether by theft or other unauthorised disclosure.”
The PSNI declined to comment on the issue, citing the fact legal proceedings were ongoing.
Mr Murphy added: “I consider that these arrests are preposterous and speak more to a paranoia within senior police than to a genuine consideration that a criminal offence has occurred.
“It is our opinion that these arrests are maliciously motivated and are unlawful. We aim to expose the unlawfulness of the police approach at the upcoming judicial review application in respect of the issuance of warrants in this case.
“We will closely examine the exact wording of Dr Maguire’s remarks and consider the implications arising with regards to the ongoing judicial review, specifically as to whether or not the court was misled in the original warrant application and also with regards to an application to de-arrest the journalists and conclude this malicious attempt by police to incriminate Mr Birney and Mr McCaffrey.”
Mr Finucane said: “The police have serious questions to answer, and it adds to my client’s view that his arrest was designed to silence investigative journalism, not investigate a crime which now appears not to have even been reported.
“PONI’s clarification today (Thursday) will add to the legal challenge Barry McCaffrey has initiated against the police.”
The National Union of Journalists (NUJ) has called for the police investigation to be dropped.
Seamus Dooley, Irish secretary of the NUJ, said the Ombudsman’s statement removed the central plank of allegations against the journalists.
“The unequivocal statement from Dr Michael Maguire’s office that they did not make a complaint of theft undermines the actions of Durham Police and the PSNI,” he said.
“The threat of prosecution should be lifted, and a full explanation given to Barry and Trevor.”