A police application to secure media footage linked to disorder in Northern Ireland should never have been made, a judge has been told.
A barrister representing several media organisations made the assertion during a hearing to determine whether the Police Service of Northern Ireland (PSNI) should shoulder the outlets’ legal costs for resisting the failed bid to obtain videos and photographs taken by them in Derry in April 2023.
The published and unpublished footage related to scenes captured at a dissident republican Easter commemoration in Derry’s City Cemetery.
Rioting broke out outside the cemetery on the day and four viable pipe bombs were found in the grounds of the cemetery the following day.
The bid was resisted by several news-gathering organisations – including the PA news agency, BBC NI, UTV, ITV News and Channel 4 News – which all argued that granting such an order would undermine public perceptions of media impartiality and independence.
Earlier this week, judge Gordon Kerr KC refused the PSNI’s application, ruling that it failed to meet the initial threshold for securing such material – namely, that there are reasonable grounds for believing it would “likely to be of substantial value” to a terror investigation.
Judge Kerr sat again on Friday morning to hear an application from the media organisations to be awarded costs in the case.
Richard Coghlin KC, representing the outlets, said the discipline expected in pursuing such applications was “absent” from the PSNI in the case.
He said it was clear from the outset that the bid was not going to satisfy the legislative threshold for securing such material under the Terrorism Act.
The barrister said that was even more apparent once a police detective had undergone cross-examination during the hearing.
“The application should never have been made,” he told the judge.
“And once it was made, it should have been withdrawn after cross-examination.”
Mark Robinson KC, representing the PSNI, rejected this argument, insisting the application was made as part of an investigation into serious offending.
He said the police should not be “discouraged” from making future applications over concerns it would be “targeted for costs”.
Judge Kerr asked the barrister if police should have a responsibility to ensure there was sufficient “justification” for making such applications before pursing them.
Mr Robinson insisted the PSNI was justified in seeking the order.
He further argued that there was no legislative provision within the Terrorism Act that deals with awarding costs. He said any move to do so would need to be made via common law – a move he argued would be “vulnerable to challenge”.
Judge Kerr reserved judgment on the costs application.
“I’ll let you know when I’ve made a decision,” he told the legal representatives.
