Summary
- Barry McCaffrey and Trevor Birney challenged costs from two abandoned hearings.
- Their dispute follows earlier findings that police surveillance was unlawful.
- The Court of Appeal issue concerns the tribunal’s legal power to award costs.
Two Belfast journalists who were unlawfully surveilled by police have returned to court in a dispute over the costs of earlier legal proceedings. Barry McCaffrey and Trevor Birney are asking the Court of Appeal to consider whether the Investigatory Powers Tribunal has the authority to compensate claimants for wasted costs following hearings that were abandoned because of disputed police disclosure.
The case was reported on 13 October 2026 after proceedings before Lord Justices Bean, Edis and Lewis. The immediate question is not whether the journalists were subject to unlawful surveillance; the tribunal had already made findings on aspects of that conduct. The current dispute concerns the remedies available when a specialist surveillance court must deal with procedural failures and associated legal expense.
McCaffrey and Birney worked on reporting connected to the 1994 Loughinisland killings and the documentary No Stone Unturned. Their treatment by police became the subject of litigation covering surveillance and the protection of journalistic material. A 2024 tribunal decision identified unlawful surveillance involving policing bodies, and the latest application sits within the subsequent accountability process.
According to reporting by Computer Weekly, the journalists argue that the Police Service of Northern Ireland behaved unreasonably during earlier proceedings and failed to disclose relevant evidence in time. They are pursuing costs for two abandoned hearings. These are submissions in a legal dispute, and a request for costs should not be reported as an award already made.
The Investigatory Powers Tribunal has a distinctive role because it hears complaints about covert surveillance and intelligence-related conduct. Its procedures need to accommodate material that may be sensitive or restricted while allowing individuals to challenge the legality of state action. A dispute about its power to award legal costs therefore touches the effectiveness of redress rather than the technology used for monitoring.
Surveillance of journalists raises an additional concern where communications or records could identify confidential sources. The European Convention on Human Rights protects freedom of expression, including aspects of journalistic source confidentiality. Assessing intrusion and remedy can require the court to examine authorisation, necessity and proportionality alongside what information was obtained.
There is no new allegation in the October reporting that a separate surveillance campaign has been discovered. Nor does the appeal establish that every claimant who succeeds before the tribunal is entitled to legal expenses. The scope of any award depends on the court's interpretation of the applicable powers and the facts surrounding the abandoned hearings.
The dispute has practical consequences for people seeking accountability after covert state action. Legal costs can be considerable where proceedings involve multiple hearings, contested disclosure and specialist advocacy. If a tribunal cannot reimburse particular costs, the available remedies may differ from those in other forms of litigation, even where the underlying conduct has been found unlawful.
The appeal addresses whether the tribunal can award costs in the circumstances described, separately from the already established findings of unlawful surveillance. The original wrongdoing and any compensation already awarded do not resolve the tribunal's authority to reimburse the costs of later procedural steps. The journalists' claim relates to the way material was disclosed and how hearings proceeded; the Court of Appeal must decide whether the governing framework permits the requested costs order. Public reporting describes the police conduct as allegedly unreasonable in this context, and that characterisation remains part of the litigants' argument until the court resolves the point. The outcome could alter the economics of pursuing a remedy before the specialist tribunal without changing the historic facts of the surveillance itself.
The appeal follows the earlier judgments but remains a separate procedural development. The Court of Appeal's decision on the tribunal's powers will determine the next step in the journalists' claim for costs.
