Akj and Others v Commissioner of Police for the Metropolis and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Tugendhat,THE HONOURABLE MR JUSTICE TUGENDHAT |
| Judgment Date | 17 January 2013 |
| Neutral Citation | [2013] EWHC 32 (QB) |
| Docket Number | Case No: HQ11X03952 |
| Court | Queen's Bench Division |
| Date | 17 January 2013 |
[2013] EWHC 32 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Tugendhat
Case No: HQ11X03952
Phillippa Kaufmann QC & Charlotte Kilroy (instructed by Birnberg Peirce & Partners) for the Claimants Ajk, Kaw and Sur(The Birnberg Claimants)
Heather Williams QC & Helen Law (instructed by Tuckers Solicitors) for ClaimantsAja, Arb and Mr Fowler(The Tuckers Claimants)
Monica Carss-frisk QC & David Pievsky (instructed by The Director Of Legal Services, Metropolitan Police Service) for the 1 st Defendant in all claims
Jeremy Johnson QC (instructed by Force Solicitor, South Wales Police) for the 2 nd Defendant in the Tuckers Claimants' Claims
Monica Carss-frisk QC & David Pievsky (instructed by The Association Of Chief Police Officers) for the 2 nd Defendant in the Birnberg Claimants' Claims and for the 3 rd Defendant in the Tuckers Claimants' claims
Hearing dates: 21, 22, 23 November 2012
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
In these two actions the Claimants advance claims under the Human Rights Act 1998 (" HRA") ss. 6 and 7 ("the HRA claims"), together with a number of common law claims in tort ("non- HRA claims" or "the common law claims"). The Defendants in these two actions apply to this court for orders that the claims be struck out; alternatively stayed, on the grounds that this court (the High Court),
(1) Has no jurisdiction to hear the Claimants' HRA claims because those claims are exclusively the province of the Investigatory Powers Tribunal ("the IPT"); and/or
(2) Should decline to exercise its jurisdiction over, or should strike out, the Claimants' common law claims, because they can be heard in the IPT and it would be abusive and/or inappropriate for them to be heard in the High Court when the HRA claims arising out of the same facts must be brought in the IPT, alternatively, that it would be unfair to permit the common law claims to be heard in the High Court because, by reason of their "Neither Confirm Nor Deny" ("NCND") policy, the Defendants cannot defend the claims.
I shall refer to the three women Claimants in the first action as the Birnberg Claimants and the two women Claimants in the second action as the Tuckers Claimants. There is also a third Claimant in the second action. He does not allege that he was sexually abused. He alleges that one of the women in the second action was his girlfriend, and that he was deceived and abused by the officer who seduced her while pretending to be his friend.
The Birnberg and Tuckers Claimants allege that they have been abused by two men who they allege to have been at the material time undercover police officers. The men are referred to respectively as Mark Kennedy ("MK") by the Birnberg Claimants, and as Mark Jacobs ("MJ") by the Tuckers Claimants.
Information provided to, or obtained by, the police (and the intelligence services) is commonly referred to as "intelligence". Intelligence obtained from people is referred to as "human intelligence", to distinguish it from intelligence from other sources, such as interception of communications. A person who provides information to the police (or the intelligence services) is referred to as a "source", or an informant.
A covert human intelligence source ("CHIS") may be a person in either of two positions. A CHIS may be a member of the public who gives information to a police (or intelligence) officer. But the term is also used to apply to an undercover police (or intelligence) officer who obtains information from a member of the public and then either uses it, or passes the information on to his colleagues or superiors. That is the effect of the definition in the Regulation of Investigatory Powers Act 2000 (" RIPA") s.26, set out below. By that definition what makes the source "covert" is if the information is obtained in the course of a relationship conducted in a manner that is calculated to ensure that one of the parties to the relationship is unaware of the purpose for which the information is being obtained or disclosed.
The Claimants have in common that they all describe themselves as political activists. The Birnberg Claimants describe themselves as having been involved in peaceful protests around environmental and related issues. They issued their Claim Form on 20 October 2011.
The Tuckers Claimants and Mr Fowler describe themselves as members of the Cardiff Anarchists Network ("CAN"). In the words of Ms Williams, this is a fairly fluid collective of locally based individuals who engaged in direct action and political protest, in relation to domestic and international issues. The group had only about ten to twelve core members during the material period, who met regularly in Cardiff pubs. They issued their Claim Form on 12 January 2012.
Neither MK nor MJ has been joined as a defendant, no doubt after careful consideration. The claims are against the Commissioner of Police for the Metropolis ("CPM") in both actions, the Chief Constable of South Wales Police ("CCSWP") in the second action, and the Association of Chief Police Officers ("ACPO") in both actions. The CPM and CCSWP are sued because the Police Act 1996 s.88 ("liability for wrongs of constables") provides that the chief officer of police for a police area shall be liable in respect of any unlawful conduct of constables under his direction and control in the performance or purported performance of their functions, and accordingly shall, in the case of a tort, be treated for all purposes as a joint tortfeasor. It also provides that there shall be paid out of the police fund any damages and costs awarded against the chief officer. It will be necessary to consider the position of ACPO below.
The Claimants do not only allege that the Defendants are vicariously liable for the wrongs of MK and MJ, or joint wrongdoers or tortfeasors together with those two men. The Claimants also allege that the Defendants are primarily liable for interference with the Claimants' ECHR rights, Arts 3 and 8, and primarily liable in tort for their own failure to supervise and control MK and MJ, and to stop the conduct complained of.
All the women allege that they have been deceived by a person who was, unknown to them at the time, a police officer. They allege that the man in question represented himself to each of the Claimants to be a fellow activist, and a person with similar interests to their own, and that by this means the man in question induced each of the women to enter into long term and committed sexual relationships with himself which, as he knew, they would not have entered into if they had known that he was an undercover police officer. Likewise Mr Fowler alleges that he was induced to enter into a friendship with the officer in his case.
These are civil proceedings in which they claim damages, not criminal prosecutions. I have not seen any suggestion that either MK or MJ was guilty of any sexual offence, but if there is any such suggestion, it forms no part of these civil proceedings. Apparent consent to a sexual act may not count in law as consent for the purposes of the criminal law in two cases which are specified in the Sexual Offences Act 2003 s.76(2). The first is where the defendant intentionally deceived the complainant as to the nature and purpose of the relevant act (e.g. a doctor who deceives a patient into believing the act is for purposes of diagnosis, when in fact it is for the doctor's gratification). The second is where the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant. The Claimants do not allege that they were deceived in circumstances that come within either of these two categories.
But the Claimants all allege that the sustained deceptions over a long period, in relation both to the sexual and other matters, were the gravest possible interferences with their right to respect for their private lives, and that as a result they have suffered serious personal injury, including psychiatric illness, distress and other damage.
On the basis of their allegations that the two men were police officers acting in that capacity in the course of covert intelligence gathering operations, the women contend that they have claims under the Human Rights Act 1998 s.6 for breach of their rights under Art 3 (prohibition of degrading treatment) and Art 8 (respect for private and family life). They also allege that they have common law causes of action, including for the torts of misfeasance in public office, deceit, assault (trespass to the person) and negligence. The Tuckers Claimants also allege breaches of statutory duty under the Data Protection Act 1998.
This court commonly tries actions against the police for assault, false imprisonment and other torts, in circumstances where the same facts give rise to claims for interference with the Convention rights under Art 3 and Art 5 (liberty), whether or not those HRA claims are actually advanced. But no action against the police alleging sexual abuse of the kind in question in these actions has been brought before the courts in the past, so far as I have been made aware. It is to be noted that on this application the court has...
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