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. 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. 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 Investigative reporter Dónal MacIntyre has asked the Investigatory Powers Tribunal to look into allegations that he was placed under directed surveillance and had his social media posts monitored by Northern Ireland police. Journalists seek legal costs after PSNI’s ‘ridiculous’ withholding of evidence in spying operation delayed court hearings. The Metropolitan Police monitored the phones of 16 BBC journalists on behalf of police in Northern Ireland, a cross-party group of MPs heard. Over 40 journalists and lawyers submit evidence to PSNI surveillance inquiry. Conservative MP adds to calls for public inquiry over PSNI police spying. Tribunal criticises PSNI and Met Police for spying operation to identify journalists’ sources. Detective wrongly claimed journalist’s solicitor attempted to buy gun, surveillance tribunal hears. Ex-PSNI officer ‘deeply angered’ by comments made by a former detective at a tribunal investigating allegations of unlawful surveillance against journalists. Detective reported journalist’s lawyers to regulator in ‘unlawful’ PSNI surveillance case. Lawyers and journalists seeking ‘payback’ over police phone surveillance, claims former detective. We need a judge-led inquiry into police spying on journalists and lawyers. Former assistant chief constable, Alan McQuillan, claims the PSNI used a dedicated laptop to access the phone communications data of hundreds of lawyers and journalists. Northern Irish police used covert powers to monitor over 300 journalists. Police chief commissions ‘independent review’ of surveillance against journalists and lawyers. Police accessed phone records of ‘trouble-making journalists’. BBC instructs lawyers over allegations of police surveillance of journalist. The Policing Board of Northern Ireland has asked the Police Service of Northern Ireland to produce a public report on its use of covert surveillance powers against journalists and lawyers after it gave ‘utterly vague’ answers. PSNI chief constable Jon Boutcher has agreed to provide a report on police surveillance of journalists and lawyers to Northern Ireland’s policing watchdog but denies industrial use of surveillance powers. Report reveals Northern Ireland police put up to 18 journalists and lawyers under surveillance. Three police forces took part in surveillance operations between 2011 and 2018 to identify sources that leaked information to journalists Trevor Birney and Barry McCaffrey, the Investigatory Powers Tribunal hears. Amnesty International and the Committee on the Administration of Justice have asked Northern Ireland’s policing watchdog to open an inquiry into the Police Service of Northern Ireland’s use of surveillance powers against journalists. Britain’s most secret court is to hear claims that UK authorities unlawfully targeted two journalists in a ‘covert surveillance’ operation after they exposed the failure of police in Northern Ireland to investigate paramilitary killings. The Police Service of Northern Ireland is unable to delete terabytes of unlawfully seized data taken from journalists who exposed police failings in the investigation of the Loughinisland sectarian murders. The Investigatory Powers Tribunal has agreed to investigate complaints by Northern Ireland investigative journalists Trevor Birney and Barry McCaffrey that they were unlawfully placed under surveillance.