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.”
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.
