AKJ and Others v Commissioner of Police of the Metropolis and another
| Jurisdiction | England & Wales |
| Judgment Date | 2014 |
| Date | 2014 |
| Year | 2014 |
| Court | Court of Appeal (Civil Division) |
Practice - Stay of proceedings - Related proceedings before tribunal - Claims in tort and for breach of human rights in respect of conduct of undercover police officers brought in High Court - Human rights claims struck out as being within exclusive jurisdiction of statutory tribunal - Whether common law claims to be stayed pending determination of human rights claims by tribunal -
In two actions the six claimants, political activists, brought claims against the defendant chief officers of police and a police association under section 7(1)(a) of the Human Rights Act 1998F1 for interference with their human rights, including those under articles 3 and 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and also in tort, in respect of damage suffered as a result of the actions of two undercover police officers who were acting as covert human intelligence sources engaged in covert intelligence gathering operations. The five female claimants alleged, inter alia, that their rights under article 3 of the Convention, which prohibited degrading treatment, had been infringed in that they had been deceived into entering into intimate sexual relationships with the undercover police officers. The defendants applied for the claims to be struck out or stayed on grounds including that the High Court had no jurisdiction to hear the claims under the 1998 Act because they fell exclusively within the province of the Investigatory Powers Tribunal in that the relationships which the police officers formed were “personal … relationships” for the purposes of section 26(8)(a) of the Regulation of Investigatory Powers Act 2000F2, that the conduct was therefore capable of being authorised under Part II of the 2000 Act as conduct which took place in “challengeable circumstances” within section 65(3)(7), and as a result the tribunal was the only appropriate tribunal by virtue of section 65(2) of the 2000 Act. The judge struck out the human rights claims on the basis that the tribunal was the only appropriate tribunal to hear them, and stayed the claims for damages in tort under CPR r 3.1(2)(f)F3 pending the determination of the tribunal proceedings.
On the claimants’ appeals against the striking out of their human rights claims and the stay on their claims in tort—
Held, (1) dismissing the appeals in respect of the human rights claims, that the phrase “personal or other relationship” in section 26(8)(a) of the Regulation of Investigatory Powers Act 2000 defined a type of conduct which could be authorised under section 27 and which, if carried out in “challengeable circumstances”, might be the subject of human rights proceedings before the Investigatory Powers Tribunal under section 65; that the plain and ordinary meaning of “personal or other relationship” in section 26(8)(a) of the 2000 Act included intimate sexual relationships; that in enacting the 2000 Act Parliament had intended to override fundamental human rights subject to certain protections including the requirement for necessity and proportionality, and so the principle of legality did not require the words to be given a narrower meaning than they naturally bore; that the alleged intimate sexual relationships of which complaint was made were therefore conduct by a covert human intelligence source within section 26(8)(a) which could be authorised under section 27 and to which Part II of the 2000 Act applied; and that, accordingly, by section 65(2) of the Act the Investigatory Powers Tribunal had jurisdiction to entertain the claimants’ human rights claims and was the only appropriate forum for their determination (post, paras 21, 31–32, 33–36, 37–43, 66).
(2) Allowing the appeals in respect of the tort claims, that a party had a right to have his civil claim decided without delay unless the party seeking the stay under CPR r 3.1(2)(f) could show otherwise; that the 2000 Act had preserved the civil court’s jurisdiction over common law claims including those arising from conduct of which the claimants made complaint and gave no priority to proceedings in the tribunal; that the issues raised were novel and difficult, giving rise to numerous issues of fact on liability and damages which the ordinary litigation process was apt to resolve; that the central question was whether it was in the interests of justice that the claims should be stayed, and since the defendants could not demonstrate that there was a real risk of injustice if the claims were not stayed, the claimants should be allowed to proceed with them; and that, since the judge’s case management decision to order a stay had therefore been plainly wrong, it was appropriate for the court to consider the matter afresh and, having done so, to lift the stay (post, paras 50–52, 54–59, 61–62, 64–65, 66).
Per curiam. The provisions of the Regulation of Investigatory Powers Act 2000 should be construed, so far as possible, so as to produce a coherent scheme. The meaning of the substantive provisions of that Act should not be determined without regard to its procedural provisions (post, paras 40, 41).
The following cases are referred to in the judgment of the court:
Al Rawi v Security Service (JUSTICE intervening)
C v Police
Carnduff v Rock
Collins v Wilcock [
Dudgeon v United Kingdom (
Kennedy, In re
Kennedy v United Kingdom (
McE v Prison Service of Northern Ireland (Northern Ireland Human Rights Commission intervening)
Panton v Financial Institutions Services Ltd
R v Secretary of State for the Home Department, Ex p Simms [
R (A) v Director of Establishments of the Security Service
R (Morgan Grenfell & Co Ltd) v Special Comr of Income Tax
Secretary of State for the Home Department v GG
The following additional cases were cited in argument:
Collins v Banham Patent Locks Ltd (unreported) 1 October 1992,
Ghaidan v Godin-Mendoza
R v McNally
Wallbrook Trustees (Jersey) Ltd v Fattal
The following additional case, although not cited, was referred to in the skeleton arguments:
Lindley v Rutter [
By a claim form issued on 20 October 2011 the claimants, AKJ, KAW and SUR, brought claims against the first and second defendants, the Commissioner of Police of the Metropolis and the Association of Chief Police Officers, under section 7 of the Human Rights Act 1998 for breach of section 6 of the 1998 Act and of their rights under articles 3 and 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and common law claims for deceit, misfeasance in public office, assault and negligence. The claimants sought damages for the emotional, psychiatric and financial losses they had suffered as a result of being deceived into entering into intimate sexual relationships with undercover police officers for whom the defendants were vicariously liable. On 6 December 2011 the claimants also issued claims under the 1998 Act in the Investigatory Powers Tribunal (“the tribunal”) to protect their rights under the Regulation of Investigatory Powers Act 2000. The defendants applied under CPR Pt 11 for the 1998 Act claims in the High Court to be struck out and for the remaining common law claims to be struck out or stayed pending the outcome of proceedings in the tribunal on the grounds, among others, that the police officers’ conduct took place in “challengeable circumstances” within the meaning of section 65(7)(b) of the 2000 Act and that the tribunal was the only appropriate tribunal to entertain the claims by virtue of section 65(2)(a) of the 2000 Act. The tribunal proceedings were stayed pending the determination of the defendants’ application. On 17 January 2013 Tugendhat J (i) struck out the human rights claims on the basis that they were within the exclusive jurisdiction of the tribunal under section 65(2) of the 2000 Act; and (ii) stayed the...
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