Mr Boris Karpichkov v The National Crime Agency
| Jurisdiction | England & Wales |
| Judgment Date | 27 October 2023 |
| Neutral Citation | [2023] EWHC 2653 (KB) |
| Docket Number | Claim No. QB-2022-000433 |
| Court | King's Bench Division |
[2023] EWHC 2653 (KB)
Claim No. QB-2022-000433
IN THE HIGH COURT OF JUSTICE KING'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
List of abbreviations
DPA — Data Protection Act 2018
DPPs – Data Protection Principles
EAW – European Arrest Warrant
ECHR – European Convention on Human Rights and Fundamental Freedoms
ECtHR – European Court of Human Rights
FSB — Federal'naya sluzhba bezopasnosti Rossiyskoy Federatsii
GDPR – General Data Protection Regulation
KGB — Komitet Gosudarstvennoy Bezopasnosti
LED – Law Enforcement Directive
LSP — Latvian Security Police
MPI – Misuse of Private Information
NCA – National Criminal Agency
SOCA – Serious Organised Crime Agency
SIRENE — Supplementary Information Request at National Entities
SIS II – Schengen Information System II
SSHD – Secretary of State for the Home Department
SVR — Sluzhba vneshney razvedki Rossiyskoy Federatsii
Accessible language summary. This simplified summary is not part of the judgment but must be reproduced with it. It has a Flesch-Kincaid reading ease score in excess of 50 .
This case concerns the Claimant who was formerly known as Mr Karpichkov. He now has a new identity. For present purposes he is accepted as being a former KGB double agent. He worked within the Latvian security services and also the Russian security services. He is now a British Citizen. Details of his new name and address in the UK were disclosed to the Latvian authorities by the Defendant. He alleges he has received death threats in his new identity at his new address. Fuller facts appear at the start of the judgment.
I directed at a previous hearing that disclosure which tends to reveal the current name or address of the Claimant must not be reported in the press or otherwise be made public. This judgment does not contain any such information and is ‘OPEN’. There is no ‘CLOSED’ judgment.
A British court in the past has ruled that the Claimant is:
“… in a unique position to confirm past collaboration by high-ranking Latvian officials with the KGB. He is also likely to be considered a threat to the Russian intelligence services by virtue of his work as a double agent for the Latvian LSP and against Russian state interests and by his on-going outspoken criticism of Russia. … [his] life has been at risk since these allegations were first brought …”.
The events here took place before “Brexit”, when the UK was a full EU member. The legal issues relate closely to the cooperation arrangements then in place between the UK and other EU states.. Those arrangements related among other things to the European Arrest Warrant system.
The Claimant says that the National Crime Agency as the UK's Competent Authority wrongly disclosed his new identity to the Latvian State ‘SIRENE’ Bureau on 23 July 2018 and also disclosed his UK address on 22 May 2019. ‘SIRENE’ stands for “ Supplementary information request at national entities”. How that system operates is set out in this judgment because it is central to this case. SIRENE is a form of EU inter-country cooperation whereby information is shared between EU law enforcement agencies, for example relating to suspects wanted for crimes.
The Claimant says that as a result of the disclosures by the NCA the Russian State has gained knowledge of his new identity and address and this has resulted in threats written in Russian delivered to his new home. He has described himself as ‘ a dead man walking’ in the media, where he has some profile in the UK under his former identity.
The Defendant is the National Crime Agency. Its is a part of the UK State. It argues that it had to disclose the new name and address of the Claimant by virtue of law governing exchange of information between EU states relating to criminal suspects. What it did cannot in its view in principle be said to be unlawful under any data protection rights within the UK's Data Protection Act 2018, or at common law. In short the Defendant claims to have a complete defence.
The Claimant says that the UK State need not have given the disclosure and that the law provides a more nuanced position than argued for by the State. In the Claimant's view the UK State failed to weigh the balance of those UK provisions relative to the EU's data sharing arrangements.
The analysis I reach is somewhat different from either party's analysis, albeit the Claimant is the successful party. The judgment provides my full reasons but my conclusion for the purposes of this summary can be shortly stated. It is arguable that the Defendant should have considered whether the disclosures in this case were truly ‘required’ by the applicable law once one took into account Human Rights and EU Charter provisions given the factual background specific to this case.
If disclosure would be contrary to fundamental rights then in my judgment it would not be strictly ‘required’ under Art 1(2)(b) of the EU Law Enforcement Directive by EU or Member State Law. The Executing Authority would then arguably be obliged to apply the domestic UK law in the form of the Data Protection Act's Data Protection Principles. It could impose restrictions or refuse the transfer of data either outright or unless modified to protect fundamental rights. One could not simply say it had met all required legal criteria such as ‘necessity’ merely by following European Arrest Warrant and Schengen Information system processes if a breach of fundamental rights would mean that transmission was not lawfully required.
A full understanding of this judgment can only be gained from reading it. This summary however is intended to ensure that the outcome and core basis is clear, namely that subject to any appeal Mr Karpichkov's case can proceed.
List of Authorities referred to in argument or in judgment
Hollington v F Hewthorn & Co [1943] KB 587
Barrett v LB Enfield [2001] 2 AC 550 at 557
Swain v Hillman [2001] 1 All ER 91
ED & F Man Liquid Products v Patel [2003] EWCA Civ 472
Hughes & Ors v Richards [2004] EWCA Civ 266
McKennitt v Ash [2006] EWCA Civ 1714, [2008] QB 73
Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch)
South Lanarkshire Council v Scottish Information Commissioner [2013] UKSC 55
AB v A Chief Constable [2014] EWHC 1965 (QB)
Rogers v Hoyle [2014] EWCA Civ 257, [2015] QB 265
Guriev v Community Safety Development (UK) Ltd [2016] EWHC 643
Oysterware Ltd v Intentor Ltd & Ors [2018] EWHC 611
Cooper v National Crime Agency [2019] EWCA Civ 16
Elgizouli v Secretary of State for the Home Department [2020] UKSC 10
Driver v CPS [2022] EWHC 2500 (KB)
C-88/22 Opinion of Advocate General Emiliou in Regionu apygardos administracinio teismo Kauno rumai, delivered on 7 July 2022
List of UK Statutory Sources referred to in argument or in judgment
List of EU and other International Sources referred to in argument or in judgment
Council of Europe Convention of 28 January 1981 for the protection of individuals with regard to automatic processing of personal data. (CETS No. 108)
The Charter of Fundamental Rights of the European Union Document 2012 2012/C 326/02
Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (“the Framework Decision”).
Council Decision 2007/533/JHA of 12 June 2007 on the establishment, operation and use of the second generation Schengen Information System (SIS II) (“The SIS II Decision”)
Council Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters.
Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, on the free movement of such data (the Law Enforcement Directive (“LED”)).
Commission Notice — Handbook on how to issue and execute a European arrest warrant 2017/C 335/01
List of ECHR Provisions referred to in argument or in judgment
Art. 3
Art. 6
Art. 8
Textbooks referred to in argument or in judgment
Phipson on Evidence (20th ed., 2021)
Counsel for the Applicant/Defendant: James Cornwell instructed by Messrs. Weightmans solicitors.
Counsel for the Respondent/Claimant: Eric Metcalfe instructed by Messrs. Deighton Pierce Glynn solicitors.
Contents
| Introduction | A brief outline of the case |
| Part I | Principles as to Striking Out and Summary Judgment. |
| Part II | D's argument. |
| Part III | C's argument. |
| Part IV | D's reply to C's points 1. |
| Part V | Decision and reasons. |
| Annex | Legal provisions cited by either or both parties or added by myself in judgment. |
Note: In this decision unless stated otherwise any emphasis in the text such as bold or underlined text is my own. Quotations are in italics.
Introduction
This case concerns a person who for present purposes is accepted as being a former KGB (later FSB) double agent, who worked within the Latvian security services as well as working for the Russian security services and who is a British Citizen. Details of his new name and address in the UK were disclosed to the Latvian authorities by the Defendant.
He alleges he has received death threats in his new identity and at his new address. He also alleges that in 2006–7 (before the disclosures forming part of this case) he may have also been the victim of a possible chemical or biological attempt on his life.
I directed at the hearing that disclosure of any details which tend to reveal the current name or address of the Claimant must not be reported in the press or otherwise be...
To continue reading
Request your trial