Two Belfast journalists who were placed under unlawful police surveillance are seeking costs following allegations of “unreasonable behaviour” by the Police Service of Northern Ireland (PSNI) during legal proceedings.
Barry McCaffrey and Trevor Birney argue that they should be awarded compensation to cover wasted costs for two abandoned court hearings, after the PSNI failed to properly disclose evidence at the Investigatory Powers Tribunal.
The case, heard at the Court of Appeal in London, before Lord Justices Bean, Edis, and Lewis, will decide whether the UK’s most secret court has legal powers to make awards for legal costs to victims of unlawful surveillance.
The Investigatory Powers Tribunal awarded the two journalists damages of £4,000 each in December 2025 after finding they had been unlawfully spied on by the PSNI and the Metropolitan Police, including monitoring phone data, in an attempt to identify their confidential sources.
The three appeal court judges decided on 13 October 2026 that they could hear an appeal from the journalists to challenge the IPT’s conclusion, overturning arguments from the PSNI that the case was a matter for a judicial review.
The case follows a ruling by five tribunal judges in April 2025 that they had no statutory powers to award legal costs to Birney and McCaffrey for hearings that had to be postponed because of the PSNI’s conduct.
Ben Jaffey KC told the court that the Investigatory Powers Tribunal erred in law by finding it had no jurisdiction to award costs to Birney and McCaffrey.
The tribunal was also wrong to conclude that it would not be “just and appropriate” to increase the compensation awarded to the journalists to reflect their legal costs, he said.
“Should the Tribunal’s determination be allowed to stand, the consequences would be startling. Awarding costs to address improper conduct is an essential tool to control judicial proceedings,” Jaffey argued in written submissions.
“The PSNI’s approach to disclosure could well have led to a significant miscarriage of justice,” he added.
Unlawful arrests
Birney and McCaffrey were unlawfully arrested, and had their homes and business premises searched, and computer equipment seized by Northern Ireland police, in 2018, in the wake of their documentary “No Stone Unturned,” which exposed collusion between the police and a paramilitary group.
They were vindicated by the High Court in Northern Ireland in 2019, which found that the PSNI’s conduct in applying for search warrants “fell woefully short of the standards required” and that there was no “overriding requirement in the public interest” that could have interfered with the protection of journalistic sources.
In the same year, they brought a case to the Investigatory Powers Tribunal against the PSNI, MI5, GCHQ, the Commissioner of the Metropolitan Police and others, alleging unlawful surveillance.
Jaffey said in legal submissions that the PSNI “derailed” a substantive hearing in February 2024 after the police force disclosed the existence of a directed surveillance order against the journalists two days before the case was due to start.
“It appears that until this point the PSNI was intent on keeping the authorisation secret from the applicants,” he said in written submissions.
At the same time the PSNI disclosed that it had received and used extensive unlawfully-obtained communications data from the Metropolitan Police.
“If this material had not been disclosed, at the last moment, it is likely that there would have been a miscarriage of justice: the Metropolitan Police’s unlawful conduct would have gone entirely undiscovered,” Jaffey stated.
“The ultimate but predictable effect of this conduct was to derail the substantive hearing,” he added.
There were similar problems at a follow-on hearing in May 2024, when large volumes of material were belatedly disclosed, requiring extensive further work by lawyers for the journalists.
“The PSNI had consistently provided key material at the eleventh hour – and, even then, had done so reluctantly and by way of dumping large quantities of documents,” Jaffey argued.
This meant that lawyers had to parse the documents overnight on the eve of a hearing. “Had the appellants not had the benefit of legal representation, key material would never have been put before the tribunal and it is unlikely that justice would have been done,” Jaffey stated.
Parliament did not give IPT powers to award costs
Acting for the PSNI, Cathryn McGahey KC said that there was nothing in legislation to confer jurisdiction for costs for the Investigatory Powers Tribunal.
“If Parliament wanted to confer a cost regime, it would have done so,” she said.
She said that the IPT found that it was not appropriate to increase the compensation awarded to McCaffrey and Birney in this case, to reflect the additional costs incurred.
The applicants were saying they accepted that the IPT was a “cost-free regime” unless there were exceptional circumstances, she said, and in this case were seeking costs for two wasted court hearings.
Lord Justice Lewis said that, on that reading, the journalists had been foolish as they could have asked for all their costs.
McGahey told the court that the tribunal makes a broad award for damages “which is never going to reflect the costs of people represented.”
“There is no reason to revisit the award already made when it reflects conduct that the tribunal [was] already aware of,” she said.
The court has reserved judgement.
