The Queen (on the application of Marina Schofield) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Singh,Mr Justice Julian Knowles |
| Judgment Date | 16 April 2021 |
| Neutral Citation | [2021] EWHC 902 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3955/2019 |
| Date | 16 April 2021 |
[2021] EWHC 902 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Manchester Civil Justice Centre
1 Bridge Street West, Manchester, M60 9DJ.
Lord Justice Singh
and
Mr Justice Julian Knowles
Case No: CO/3955/2019
and
Mr Leslie Thomas QC and Mr Adam Straw (instructed by Farleys Solicitors) for the Claimant
Mr Julian Milford QC, Mr Luke Ponte and Mr Daniel Isenberg (instructed by the Government Legal Department) for the Defendant
Ms Anne Whyte QC (Instructed by GMP Legal Services) for the Interested Party
Hearing dates: 10 – 11 March 2021
Approved Judgment
Introduction
This claim for judicial review concerns a challenge to the statutory bar on the admissibility of intercept evidence in legal proceedings. The statutory bar and exceptions to it are contained in section 56 of, and Sch. 3 to, the Investigatory Powers Act 2016 (“IPA”). Since this is primary legislation the principal remedy which the Claimant seeks is a declaration of incompatibility under section 4 of the Human Rights Act 1998 (“ HRA”).
Permission to bring this claim was granted by Kerr J in an order made on 8 April 2020.
At the hearing we heard submissions from Mr Leslie Thomas QC and Mr Adam Straw for the Claimant; and from Mr Julian Milford QC for the Secretary of State. Ms Anne Whyte QC also attended the hearing on behalf of the Interested Party but in the end did not need to make any submissions. We are grateful to all counsel and those instructing them for their assistance.
Factual Background
On 3 March 2012, Mr Anthony Grainger, the Claimant's son, was fatally shot by a Greater Manchester Police (“GMP”) officer. The shooting occurred during an operation that was planned and controlled by GMP.
On 27 June 2013, a report was produced by the Independent Police Complaints Commission (“IPCC”), which concluded that there had been serious organisational failings by GMP.
Criminal proceedings were brought against Sir Peter Fahy, the Chief Constable of GMP, in January 2014. The offence charged was failing to discharge his duty under section 3(1) of the Health and Safety at Work Act 1974, in contravention of section 33(1)(a) of that Act. The burden of proof in relation to this offence is placed on the defendant.
On 16 January 2015, the Crown Prosecution Service (“CPS”) informed the Claimant that the prosecution was being discontinued. The defendant in the prosecution submitted that he was not able properly to discharge the burden against him without deploying, in court, material of a sensitive nature. The court ruled that the defendant had to have the sensitive material available to him and the ability to deploy it in evidence. The prosecution was not able to comply with that order and so the proceedings could not continue.
The Claimant corresponded with the CPS in January 2015 regarding the decision to discontinue the proceedings. The CPS was unable to provide the information sought by the Claimant, preventing her from challenging the decision.
On 15 April 2015, the Claimant issued a claim for judicial review. Permission was refused by Wilkie J on 12 June 2015 on the ground that the claim was premature. He indicated that the claim could be brought after the inquest into the death of Mr Grainger.
In May 2015, HHJ Teague QC was appointed to conduct the inquest into the death. He concluded that there was information which could not be disclosed or relied upon at the inquest. This would prevent the inquest from determining the circumstances which surrounded the death of Mr Grainger. However, the information could be relied upon at a public inquiry, so the inquest was converted into a public inquiry by the Secretary of State on 17 March 2016.
The conclusion of the public inquiry was highly critical of the planning and conduct of the operation by GMP. It found that the conduct of the armed deployment was contrary to Article 2 of the European Convention on Human Rights (“ECHR”).
In the present proceedings, the Secretary of State is content for this Court to proceed on the assumption that the sensitive material which could not be disclosed in the prosecution of Sir Peter Fahy was intercept material within the scope of section 56(1) of the IPA. In accordance with normal practice in this context, the Secretary of State “neither confirms nor denies” that the sensitive material in question was in fact intercept material.
Although the facts of Mr Grainger's case have given rise to these proceedings, the nature of the claim is a generic one. The challenge is to the compatibility of primary legislation with the Convention rights under the HRA. We are not therefore concerned with the question whether there has been a breach of the HRA on the individual facts of this case.
The basic scheme of the IPA
The basic structure of the IPA can be set out briefly for present purposes. Section 3 makes it an offence for a person to intercept a communication, for example in a telecommunication system, without lawful authority.
Section 19 creates the system by which the Secretary of State has power to issue “a targeted interception warrant” and, so far as material, provides:
“(1) The Secretary of State may, on an application made by or on behalf of an intercepting authority mentioned in section 18(1)(a) to (g), issue a targeted interception warrant if—
(a) the Secretary of State considers that the warrant is necessary on grounds falling within section 20,
(b) the Secretary of State considers that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct,
(c) the Secretary of State considers that satisfactory arrangements made for the purposes of sections 53 and 54 (safeguards relating to disclosure etc.) are in force in relation to the warrant, and
(d) except where the Secretary of State considers that there is an urgent need to issue the warrant, the decision to issue the warrant has been approved by a Judicial Commissioner.
…”
The grounds on which warrants may be issued by the Secretary of State are set out in Section 20, which, so far as material, provides:
“(1) This section has effect for the purposes of this Part.
(2) A targeted interception warrant … is necessary on grounds falling within this section if it is necessary—
(a) in the interests of national security,
(b) for the purpose of preventing or detecting serious crime, or
(c) in the interests of the economic well-being of the United Kingdom so far as those interests are also relevant to the interests of national security (but see subsection (4)).
…
(5) A warrant may not be considered necessary on grounds falling within this section if it is considered necessary only for the purpose of gathering evidence for use in any legal proceedings.”
Section 53 requires safeguards to be in place in relation to the retention and disclosure of material:
“(1) The issuing authority must ensure, in relation to every targeted interception warrant … issued by that authority, that arrangements are in force for securing that the requirements of subsections (2) and (5) are met in relation to the material obtained under the warrant. This is subject to subsection (9).
(2) The requirements of this subsection are met in relation to the material obtained under a warrant if each of the following is limited to the minimum that is necessary for the authorised purposes (see subsection (3))—
(a) the number of persons to whom any of the material is disclosed or otherwise made available;
(b) the extent to which any of the material is disclosed or otherwise made available;
(c) the extent to which any of the material is copied;
(d) the number of copies that are made.
(3) For the purposes of this section something is necessary for the authorised purposes if, and only if—
(a) it is, or is likely to become, necessary on any of the grounds falling within section 20 on which a warrant under Chapter 1 of this Part may be necessary,
(b) it is necessary for facilitating the carrying out of any functions under this Act of the Secretary of State, the Scottish Ministers or the person to whom the warrant is or was addressed,
(c) it is necessary for facilitating the carrying out of any functions of the Judicial Commissioners or the Investigatory Powers Tribunal under or in relation to this Act,
(d) it is necessary to ensure that a person (‘P’) who is conducting a criminal prosecution has the information P needs to determine what is required of P by P's duty to secure the fairness of the prosecution, …”
The statutory bar
At the relevant time of the facts of this case the statutory bar was contained in sections 17–18 of the Regulation of Investigatory Powers Act 2000 (“ RIPA”). The current provisions are contained in the IPA, which, for relevant purposes, came into force on 27 June 2018. The statutory bar is now contained in section 56 of the IPA, which, so far as material, provides:
“(1) No evidence may be adduced, question asked, assertion or disclosure made or other thing done in, for the purposes of or in connection with any legal proceedings or Inquiries Act proceedings which (in any manner)—
(a) discloses, in circumstances from which its origin in interception-related conduct may be inferred—
(i) any content of an intercepted communication, or
(ii) any secondary data obtained from a communication, or
(b) tends to suggest that any...
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JR111 Application for Judicial Review
...of the import of his contribution is found in Singh LJ’s judgment in R (Schofield) v Secretary of State for the Home Department [2021] EWHC 902 (Admin) at paragraph [93]: “In D v Commissioner of Police of the Metropolis [2018] UKSC 11; [2019] AC 196, at paras. 153-153, Lord Mance DPSC consi......