The Investigatory Powers Tribunal, the court that assesses whether police and intelligence agencies follow the law regarding surveillance, can’t impose costs on government agencies even when they deliberately delay or ignore court orders.
A panel of five judges concluded that the tribunal lacks the legal authority to penalize police or intelligence bodies for withholding crucial evidence. This ruling comes after the tribunal found that two UK police departments had illegally spied on investigative journalists Barry McCaffrey and Trevor Birney. They targeted the journalists after they created a documentary exposing police involvement in the 1994 murders of six innocent Catholics in Loughinisland. Despite knowing who was responsible, police have not prosecuted anyone.
On April 18, the tribunal noted that the Police Service of Northern Ireland (PSNI) repeatedly withheld critical evidence—sometimes until just before court hearings. However, the judges emphasized they couldn’t award any costs against the PSNI.
The tribunal judges urged the Secretary of State to step in. They suggested that new rules or legislation are needed to empower the tribunal to impose costs, particularly when public bodies waste resources through their misconduct. The judges recognized the journalists’ argument about the need for consequences when tribunal orders aren’t followed, but ultimately, they stated it was up to the Secretary of State or Parliament to act.
Birney and McCaffrey sought compensation for legal costs after the PSNI allegedly misled the tribunal and delayed revealing important details that forced two court hearings to be canceled.
During a hearing in March 2024, Ben Jaffey KC, representing the journalists, explained that the PSNI failed to disclose surveillance information until the last moment, violating tribunal orders. For instance, the PSNI submitted vital evidence at 11:19 PM before a hearing, forcing the lawyers to scramble through the night without enough time to prepare. On another occasion, they revealed a Directed Surveillance Order only on the day of a court hearing, allowing the journalists’ representative to take notes but not providing a copy.
Trevor Birney expressed his deep concern over the tribunal’s ruling, feeling it effectively lets public bodies behave poorly without facing consequences. “They can delay, obstruct, conceal—and it’s all without repercussions,” he said. Barry McCaffrey echoed his sentiments, stating that the situation undermines accountability and leaves the door open for further misconduct.
The journalists warned that this ruling could undermine public trust in legal protections, suggesting it sets a troubling precedent. In response to the allegations, PSNI Chief Constable Jon Boutcher assigned Angus McCullogh KC to investigate the department’s surveillance of journalists and lawyers. Birney and McCaffrey have also called for a thorough public inquiry into the surveillance and institutional failures in their case.