AJA and Others v Commissioner of Police for the Metropolis (1st Respondent) Chief Constable of South Wales Police (2nd Respondent) Association of Chief Police Officers (3rd Respondent)
| Jurisdiction | England & Wales |
| Judge | Master of the Rolls |
| Judgment Date | 05 November 2013 |
| Neutral Citation | [2013] EWCA Civ 1342 |
| Docket Number | Case No: A2/2013/0639 & 0640 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 November 2013 |
and
and
and
[2013] EWCA Civ 1342
Master of the Rolls
Lord Justice Maurice Kay
and
Lady Justice Sharp
Case No: A2/2013/0639 & 0640
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT, QUEEN'S BENCH DIVISION
MR JUSTICE TUGENDHAT
HQ12X00132
Royal Courts of Justice
Strand, London, WC2A 2LL
A3/2013/0639
Heather Williams QC and Alex Gask (instructed by Tuckers Solicitors) for the Appellants
Monica Carss-Frisk QC and David Pievsky (instructed by The Metropolitan Police Service Directorate of Legal Services and Association of Chief Police Officers Directorate of Legal Services) for the First and ThirdRespondents
Jeremy Johnson QC (instructed by South Wales and Gwent Police Joint Legal Services) for the Second Respondent
A3/2013/0640
Phillippa Kaufmann QC and Charlotte Kilroy (instructed by Birnberg Pierce & Partners) for the Appellants
Monica Carss-Frisk QC and David Pievsky (instructed by the Commissioner of Police for the Metropolis Directorate of Legal Services) for the Respondents
Master of the Rolls: this is the judgment of the court.
At the heart of this appeal lies the question of whether the Investigatory Powers Tribunal ("the IPT") created pursuant to section 65 of the Regulation of Investigatory Powers Act 2000 (" RIPA") has jurisdiction to decide claims by the appellants that their rights under the European Convention of Human Rights ("the Convention") have been violated by police officers for whom the respondents are said to be responsible. The claims arise from allegations that officers established and maintained intimate sexual relationships with all the appellants (except Mr Fowler) for the covert purpose of obtaining intelligence. The appellants allege that such conduct was contrary to section 6(1) of the Human Rights Act 1998 (" HRA") in that it was in breach of their rights under articles 3 and 8 of the Convention. Article 3 provides that no-one shall be subject to torture or to inhuman or degrading treatment. Article 8(1) provides that everyone has the right to respect for his private and family life. The appellants also allege that the same conduct was unlawful at common law in that it involved the commission of the torts of deceit, misfeasance in public office, assault and negligence. The appellants further allege that there were breaches of the Data Protection Act 1998.
This appeal is not concerned with whether the appellants have good claims for breach of their Convention rights or in tort. The respondents did not, for the purpose of this appeal, contend that any of the claims were unarguable.
The first issue that arises is whether the IPT has jurisdiction to determine the claims brought under section 7(1) of the HRA. This turns on whether the establishing or maintaining of an intimate sexual relationship by a covert human intelligence source ("CHIS") was "conduct to which Part II [of RIPA] applies". If it was not conduct to which Part II applies, the claims are not subject to the jurisdiction of the IPT. The judge held that the alleged conduct was conduct to which Part II applies and that the IPT therefore has jurisdiction to decide the human rights claims.
The second issue arises from the fact that, for reasons that we shall describe in detail later in this judgment, the judge stayed these proceedings pending the determination of the HRA claims by the IPT. The appellants submit that he was wrong to do so. The respondents submit that this was a case management decision which was not plainly wrong and with which this court should not interfere.
The facts
There are two groups of claimants. The first comprising AKW, KAW and SUR are represented by Birnberg Pierce & Partners (referred to as "the Birnberg claimants"). The second comprising AJA, ARB and Thomas Fowler are represented by Tuckers (referred to as "the Tuckers claimants"). The factual allegations relating to the Birnberg claimants can be summarised as follows. They are all committed environmental activists. Mark Kennedy ("MK"), a married police officer with two children, used a false identity which was provided to him by the first respondent to deceive all three claimants into embarking on intimate sexual relationships with him while he was performing his duties as an undercover officer. These relationships lasted between seven months and, in the case of one claimant, seven years. He knew that none of the claimants would have entered into the relationship and consented to sex with him if they had known his true identity and his true purpose. He encouraged all three claimants to become emotionally dependent on him. He attended intimate family gatherings and went on private holidays with them. He used his sexual relationships with the claimants to enable him to gather intelligence and/or for personal gratification. These relationships were known about or suspected by other police officers including other undercover officers, his day to day handler and his managers in the National Public Order Intelligence Unit.
The factual allegations made by the Tuckers claimants can be summarised as follows. They are all members of the Cardiff Anarchists Network ("CAN") which is a body of locally-based individuals who are engaged in direct action and political protest in relation to domestic and international issues. MJ (alleged to be a police officer) first met members of CAN in 2004. He told the claimants that he was a truck driver and that he was separated from his former partner. Between 2005 and 2009, he formed close relationships with all three claimants, including sexual relationships with the first and second claimant. He instigated a sexual relationship with the second claimant when she was in a relationship with the third claimant. During these relationships, MJ purported to be a confidant, empathiser and source of close support to each of them. For example, he attended the funeral of the second claimant's father. He exploited their vulnerabilities and sought to encourage them to rely on him emotionally. None of the claimants would have entered into these relationships with MJ had they been aware of his true identity as a police officer. He used the respondents' resources to conceal his identity and to further the intimate relationships that he had initiated.
Introduction
RIPA was introduced principally to ensure that covert investigatory powers were used in compliance with article 8 of the Convention. When introducing the Bill on its Second Reading, Home Secretary Jack Straw said:
"Part II of the Bill covers the use of intrusive surveillance, directed surveillance and covert human intelligence sources. Those are not new powers, but the provisions in this part of the Bill will put their use on a statutory basis. Part II does not create any illegality in the use of Part II techniques, but it will ensure that the use of the powers is properly regulated. Where such actions are authorised properly under the provisions of the Bill, that will be an answer to any subsequent assertion based on article 8 of the European Convention that a person's privacy has been invaded without justification."
RIPA sets out regulatory requirements for the exercise of six covert investigatory powers. These powers are: (i) the interception of communications; (ii) the acquisition of communications data (both of which are dealt with in Part I); (iii) intrusive surveillance; (iv) directed surveillance; (v) the use of CHIS (all three of which are dealt with in Part II); and (vi) the demands for decryption (dealt with in Part III). It is an important part of the case advanced by all the appellants that RIPA established a hierarchy of powers; and that the powers considered to be most intrusive are available in more limited circumstances, to fewer public bodies and subject to more stringent requirements than is the case in relation to the powers that are considered to be less intrusive. In descending order of intrusiveness, the hierarchy is: (i) interception of communications, (ii) intrusive surveillance, (iii) demands for decryption, (iv) CHIS and (v) directed surveillance and acquisition of communications data. The three investigatory powers considered to be the most intrusive have the following distinct features: (i) authorisation is granted by warrants signed in person by the Secretary of State, authorisations by the Secretary of State or prior approval from a Surveillance Commissioner or judge (with limited exceptions in the case of demands for decryption); (ii) authorisation may be sought only by a core of investigating authorities (for interception only the intelligence services, the police, HMRC and SOCA and in addition for the other two powers the OFT, HM Armed forces and the MOD (with limited exceptions in the case of demands for decryption)); (iii) authorisation may be sought only for the purpose of national security, the prevention or detection of serious crime and the economic well-being of the UK; and (iv) there is a statutory requirement that those authorising the use of the power must consider whether the information could reasonably be obtained by other means.
By contrast, the three investigatory powers considered to be the least intrusive, which include the use of...
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