Two Northern Ireland journalists are seeking costs against the Police Service of Northern Ireland following delays in disclosure of critical evidence that led to two court hearings being abandoned, the Investigatory Powers Tribunal heard today.

Barry McCaffrey and Trevor Birney are claiming costs after the PSNI allegedly misled the tribunal by obfuscating critical evidence of PSNI and Metropolitan Police surveillance operations to identify journalist’s confidential sources.

The case which is being heard by five judges will determine for the first time in the 25-year history of the tribunal whether it has powers to award costs in cases where government bodies – in this case the PSNI – are accused of “unreasonable behaviour”. The president of the IPT, Lord Justice Singh said: “This is going to be the definitive judgement from the tribunal on costs.”

A judicial review in the High Court in Belfast quashed arrest warrants issued by the PSNI and Durham Police against the journalists in 2019 in a “sting” operation intended to identify a confidential source who leaked information used in the documentary.

Ben Jaffey KC, representing McCaffrey told the tribunal that the PSNI had failed to disclose surveillance operations against the two journalists until the eve of court hearings in 2024. This the court, was told resulted in two court hearings being “thrown away.”

The court heard that the PSNI redacted documents given to the journalists’ lawyers to obfuscate references to PSNI’s “covert strategy” and a Directed Surveillance Operation (DSO) against the two journalists.

The PSNI told the tribunal’s counsel that it was “all terribly secret” and that it would breach the tribunal rules for the surveillance operations to be disclosed in open court, Jaffey told the court.

PSNI failed to disclose Surveillance order

The PSNI had claimed in a witness statement that the tribunal counsel had agreed that the existence of PSNI’s Directed Surveillance Order (DSO) against the journalists should not be disclosed in open court. But this was untrue, Jaffey told the court. 

The PSNI also failed to inform the tribunal that the existence of the PSNI surveillance operation has been previously disclosed at the Belfast High Court judicial review.

Two minutes before deadline “we were told there was a Directed Surveillance Order,” he said. “There has been no explanation for this extremely late disclosure that altered direction of case”.

At same time the PSNI produced new material disclosing involvement of Metropolitan police surveillance operations against journalists just before court hearings were due to start.

Jaffey was told he could view the Directed Surveillance Authorisation, which required the signature of the chief constable of the PSNI, at the Tribunal Counsel’s Office, and could only take notes on the morning of the court hearing. 

“The PSNI vigorously attempted to keep Directed Surveillance in [a] closed [hearing]. They only relented just before hearing once they belated accepted it had been disclosed in the judicial review.”

“The lateness of disclosure was inexcusable,” he said. “Having agreed there was a Directed Surveillance application, withholding it to morning of tribunal was ridiculous,” he added.

An email from the senior investigating officer at Durham Police, brought in to assist the PSNI, had been openly discussed in a judicial review. The email referred to a covert strategy put in place to maximise intelligence gathering opportunities.

Jaffey told the court that the PSNI had claimed it had been unable to find information about a surveillance operation conducted by the Metropolitan Police, code named Operation Erewhon, against McCaffrey and other journalists.

The PSNI claimed in legal submissions that did not identify the link between McCaffrey and the sensitive investigation conducted by Metropolitan Police in 2011.

The PSNI also claimed that police officer responding to the IPT’s request was unaware of the Met’s role.
“None of that was true,” said Jaffey. 

Infact the PSNI had previously disclosed the Metropolitan Police’s operation to the Judicial Review in 2019, the court heard.

“Not only did the PSNI identify the Metropolitan Police data in the judicial review but they produced a schedule on it, and claimed Public Interest Immunity (PII) to prevent it being disclosed,” said Jaffey.

Operation Erewhon was only disclosed to the tribunal because of the work by the Counsel to the Tribunal, he said. “The contents were critical to the findings of the court that the surveillance was unlawful,” he added. 

The PSNI’s claims that it was unable to disclose the nature and the content of the documents “were ridiculous,” Jaffey said.
“PSNI are even now unable to apologise for failing to disclose,” he said.

PSNI knew about Met’s role

Cathryn McGahey KC, representing the PSNI, told the court that it was correct that the PSNI knew about the role of the Metropolitan Police surveillance operation, the PSNI’s disclosure team did not.

She told the court that the information about the MPS was held in a close compartment on the PSNI’s computer systems and was not found by searches.

She said that the system had been set up very securely to ensure no unauthorised access to sensitive information.

“That is fault of PSNI system,” she said. “The PSNI have now taken steps to ensure this would not happen again”.

Jaffey said that the PSNI had no real substantive point beyond making an apology.

“It is not denied the evidence relating to the Metropolitan Police would not be before this tribunal in the errors had not been discovered through happenstance,” he said.

The explanation given by the PSNI for its failure to find evidence about operation Erewhon, had been “entirely unheralded” in the written arguments presented to the tribunal.

McGahey said there was nothing in the tribunal rules to indicate that the IPT had power to award costs and that no such power exists.

“If parliament had wished this tribunal to have a cost jurisdiction parliament could and would have done so,” she said.

“Costs should only be awarded when there is exceptionally bad behaviour and there is a need to enforce compliance,” she argued.

“On facts of this case, PSNI has apologized, had admitted fault to tribunal and has taken remedial steps,” she added

Jaffey said that it was not true that there was no background in the PSNI constantly failing to follow the court’s orders.

He said that the president of the IPT had said that the PSNI does “not understand the concept of a court order”.  That is “not language that a court normally uses,” he said.

Jaffey said in written submissions that the PSNI had failed to produce relevant material on a timely basis leading to extensive waste of time and costs.

“The substantive hearing had to be prepared (at least) twice over. Every hearing was preceded by last minute, fundamental, disclosure on the eve of the hearing, invariably served in volume without proper explanation of the delay or the key points,” he wrote.

The judges were: The Hon Mr Justice Jeremy Johnson KC, Lord Boyd of Duncansby – Vice President, Lord Justice Singh – President, Lady Carmichael and The Honourable. Mr Justice Chamberlain.

The court has reserved its verdict.