Durham’s chief constable has insisted Northern Ireland’s Police Ombudsman did report the theft of a confidential document that triggered the arrest of two journalists, despite a denial from the watchdog.

Mike Barton and Ombudsman Dr Michael Maguire appeared at odds on Thursday evening after Mr Barton countered an assertion from the Ombudsman’s office that it did not make a “complaint of theft” to the Police Service of Northern Ireland.

The PSNI, concerned about conflict of interest issues, asked Durham Constabulary to probe the alleged theft of a document that featured in Trevor Birney and Barry McCaffrey’s film on the 1994 Loughinisland massacre.

Officers from Durham subsequently oversaw the arrest and questioning of the award-winning documentary makers in August.

A Durham police press release issued at the time stated the investigation was triggered when the Ombudsman reported the alleged crime to police.

On Thursday morning that claim was directly contradicted by the Ombudsman’s office itself, which insisted: “We did not make a complaint of theft.”

The controversy took another twist hours later when Mr Barton insisted a report had been made by the Ombudsman. He further claimed the report was followed up by a “written statement of complaint by a member of their senior management team”.

“The Loughinisland massacre was a barbaric atrocity which continues to have a devastating impact on the lives of many people,” said Mr Barton.

“Durham Constabulary has been tasked to conduct a criminal investigation into the loss of secret documents and their subsequent use in a film documentary resulting in the potential for lives to be put at risk.

Barry McCaffrey (left) and Trevor Birney after they were arrested
Barry McCaffrey (left) and Trevor Birney after they were arrested (Liam McBurney/PA)

“The Office of the Police Ombudsman for Northern Ireland (OPONI) did report the theft of their material to the Police Service of Northern Ireland (PSNI) at a meeting on October 4, 2017 immediately after identifying the fact that ‘secret’ documents, created by OPONI, had featured in a documentary film.

“This criminal investigation has a definite and clear starting point. The report by OPONI was subsequently followed up by a written statement of complaint by a member of their senior management team.

“The statement acknowledges that, following this initial report, Durham Constabulary would be conducting a criminal investigation into theft or other unauthorised disclosures.”

Earlier, in response to Dr Maguire’s contention, which was reported in the Irish Times on Thursday, lawyers for Mr Birney and Mr McCaffrey said the arrests were to be challenged in court.

Dr Michael Maguire
Northern Ireland Police Ombudsman Dr Michael Maguire (David Young/PA)

They said a judge would 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.

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, prior to Mr Barton’s statement.

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.”

In his comments, Mr Barton said: “Durham Constabulary understands and respects its obligations to the ongoing judicial review proceedings with which it will continue to fully comply.”

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 loyalist paramilitary atrocity.

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 Heights Bar in Loughinisland
The Heights Bar in Loughinisland, Co Down the morning after the massacre (PA)

The 2017 documentary by Mr Birney, 51, and Mr McCaffrey, 48, broke new ground by publicly naming those it said were suspects.

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 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.