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Investigatory Powers Tribunal has no power to award costs against PSNI over evidence failures

Investigatory Powers Tribunal judges have called for the Home Secretary to step in after finding they have no powers to award costs against government bodies that fail to disclose evidence

Bill Goodwin
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Published: 22 Apr 2025 9:45

The Investigatory Powers Tribunal, the court that rules on the lawfulness of surveillance by police and intelligence agencies, has no powers to award costs against government bodies when they deliberately withhold or delay the disclosure of relevant evidence or fail to follow court orders.

A panel of five judges has found that the tribunal has no statutory powers to impose sanctions against police forces or intelligence agencies if they delay or fail to follow orders from the tribunal to disclose relevant evidence.

The ruling comes after the Investigatory Powers Tribunal found that two UK police forces had unlawfully spied on investigative journalists Barry McCaffrey and Trevor Birney, including harvesting phone data, following their investigations into police corruption.

The Police Service of Northern Ireland (PSNI) targeted Birney and McCaffrey after they produced a documentary exposing police collusion in the murders of six innocent Catholics watching a football match in Loughinisland in 1994.

Although the people alleged to be behind the killings are known to police, none have been prosecuted.

The tribunal acknowledged in a judgment on 18 April that the PSNI repeatedly withheld and delayed the disclosure of important evidence, in some cases until the night before a court hearing.

However, five tribunal judges concluded they had no statutory powers to award costs against the police force.

Judges ask Home Secretary to intervene

The judges have called for the Secretary of State to intervene to address the matter by introducing rules for the tribunal or passing primary legislation.

“We do not regard the outcome as entirely satisfactory … the facts of the present case illustrate why it would be helpful at least in principle for this tribunal to have the power to award costs,” the judges said.

They added that they “see force” in the journalists’ submissions “that there is a need for the tribunal to have the power to award costs, in particular against respondents, where there has been expenditure wasted as a result of their conduct and where, in particular, orders of the tribunal are persistently breached”.

However, the five judges found they had no powers to award costs under existing legislation or the tribunal rules, and that it “would be a matter for the Secretary of State or Parliament”, to intervene, they said in a 19-page ruling. 

Birney and McCaffrey had claimed for reimbursement of part of their legal costs, after the PSNI allegedly misled the tribunal by obfuscating critical evidence of PSNI and Metropolitan Police surveillance operations against them, leading to two court hearings having to be abandoned.

Failures to disclose evidence

Ben Jaffey KC, representing the journalists, told a tribunal hearing in March 2024 that the PSNI had failed to disclose surveillance operations against the two journalists until the night before scheduled court hearings, in breach of the tribunal’s orders. 

In one case, the PSNI served key evidence at 11:19 pm the night before a court hearing, forcing the journalists’ lawyers to work through the night, and leaving no time to properly consider the evidence the next day.

On another occasion, the PSNI failed to disclose a Directed Surveillance Order against the two journalists until the morning of a court hearing, when the journalists’ legal representative was allowed to take notes from it but not allowed a copy. 

Commenting on the verdict, Trevor Birney said  the tribunal’s conclusion that it lacked power to order costs was deeply disturbing.

“The tribunal has effectively said that public bodies can behave badly – delay, obstruct, conceal – and face no consequence,” he said. “That’s not justice; it’s a reward for wrongdoing.”

Barry McCaffrey added: “The tribunal recognised the delays and failures in disclosure but effectively said its hands were tied. That leaves us with a system where transparency and accountability can be deliberately undermined without fear of reprisal.”

How the PSNI delayed disclosure of key evidence

16 February 2024: Durham Police incorrectly told the lawyers of the journalists there had been no Directed Surveillance Authorisation against them.

16 February 2024: PSNI served a “skeleton argument” making additional disclosures but neglected to disclose the Directed Surveillance Authorisation.

23 February 2024: PSNI disclosed the existence of a Directed Surveillance Authorisation issued to authorise spying against the journalists “only two clear days” before a court hearing: “No clear explanation has ever been offered for that exceptionally late disclosure.”

25 February 2024: PSNI discloses further evidence at 11:19pm on the evening before a court hearing.

26 February 2024: On the day of the scheduled court hearing, a lawyer for the two journalists was allowed to view and take limited notes of the Directed Surveillance Authorisation only the morning before the court hearing.

Lawyers for the journalists attempt to make sense of large volumes of additional material disclosed just before the court hearing. This includes a disclosure from the PSNI that it had received extensive phone communications data from the Metropolitan Police Service, which was later added as a respondent to the case.

The hearing is adjourned late on the first day as it could “not fairly go ahead”.

8 May 2024: PSNI discloses large volumes of evidence raising new issues, including a “defensive operation” to monitor police phone calls to journalists by the PSNI, and details of an attempt by a Durham Constabulary to preserve journalist Trevor Birney’s emails stored on Apple’s iCloud. The tribunal ordered further searches of evidence and written explanations for the late disclosure.

The journalists warned that the ruling risks eroding public confidence in legal safeguards and sets a dangerous precedent that could embolden further misconduct by public authorities. 

The chief constable of the PSNI, Jon Boutcher, has appointed Angus McCullogh KC to conduct a review into PSNI surveillance of lawyers and journalists.

Birney and McCaffrey have called for a full public inquiry into the unlawful surveillance and institutional failures surrounding their case.

Read more about police surveillance of journalists in Northern Ireland

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