AKJ and others v The Commissioner of Police and others
This summary sets out what the judgment means and what implications it has for the case of the eight women (and others); Harriet Wistrich is solicitor for the eight claimants.
Birnberg Peirce represent eight women who are bringing claims against the police but only three of their cases were the subject of this judgment. That is because only three of the Claimants could bring claims under the Human Rights Act, which came into force in 2000. Those who suffered violations by the police prior to 2000 only have remedies under the common law (in tort). All eight claimants are bringing common law claims for deceit, misfeasance in public office, assault and negligence. Only three are able to additionally bring claims under the Human Rights Act for breaches of Article 8 (the right to privacy and family life) and Article 3 (the right not to be subject to inhumane and degrading treatment) of the European Convention on Human Rights (ECHR).
When deciding how to plead the women’s claims, we were aware of the risk that the police could argue that the Human Rights Act claims could only be heard in the Investigatory Powers Tribunal, however, we considered that there was a powerful argument as to why in this particular case that would not be appropriate.
The legal framework
When the Human Right Act was introduced by the Labour government there were concerns that “legitimate” and “necessary” surveillance operations by the police and other state agents could be routinely challenged as a consequence of the incorporation of Article 8 ECHR into UK law. Therefore the government passed the Regulation of Investigatory Powers Act (RIPA) for the purpose of regulating spying by the state to ensure that it was lawful. In essence it provided a framework for authorizing a range of methods used by the state to conduct surveillance on potentially illegal activity. Such surveillance covers a wide range of activities from operations by secret intelligence services (MI5 and MI6), that of undercover policing (work by both undercover operatives and the use of informants) to the use of CCTV by local authorities. Provided such activity is correctly authorised in accordance with the statute and guidelines, then it will be lawful.
RIPA created the Investigatory Powers Tribunal (IPT) to consider complaints and cases involving Human Rights violations. The IPT will normally hear cases in secret and when reaching a decision, it is not required to provide any reasons for its decision. That decision cannot be appealed. The logic of this is that if the activities of secret agents and the like were exposed to the public it could undermine their operational effectiveness and potentially put undercover operatives and informers at risk.
The case (AKJ and others)
The three Claimants who have claims under the Human Rights Act were all in relationships with Mark Kennedy. Following the service of Particulars of Claim in their case, the police made an application to strike out their claims, or alternatively stay them on the basis that
(1) the High Court had no jurisdiction to hear the HRA claims because they are exclusively the province of the IPT and/or
(2) that the High court should strike out or stay the common law claims because (a) it would be abusive or inappropriate to hear claims arising from the same set of facts when the HRA claims were being brought in the IPT or (b) because it would be unfair to hear the claims in open court because of their (alledged?) policy of “Neither Confirm Nor Deny” in relation to undercover officers.
The police, had in fact, argued in correspondence with Birnbergs that the claims of the other five women who could not bring HRA claims might also be appropriately heard by the IPT, although this was not the subject of this judgment.
At around the same time, three claimants (two women and one man), represented by Tuckers solicitors, who all had relationships/close friendships with another police spy, Marco Jacobs, also brought a claim pleaded in similar terms, raising issues under the HRA. Their case was joined together with the Birnberg cases, thus the judgment concerns the claims of six Claimants altogether, five women and one man.
We argued against the police application on a number of bases, but central to our submissions was a complex argument concerning an analysis of RIPA and our interpretation of what the legislators intended. RIPA is, as Justice Tugendhat acknowledges, “a long and complicated statute”. We argued that if you look at the legislation as a whole it is clear that the forming of sexual relationships by undercover officers, could never have been contemplated by Parliament, when passing the legislation, as conduct that could be authorised within the regime they created. That is because, there is a clear hierarchy within RIPA about what are regarded as the most serious and intrusive forms of conduct and that conduct requires a higher level of authority in order for it to be authorised. The example that is often cited is that if the police want to tap somebody’s phone, then this conduct has to be authorised by a Secretary of State. On the other hand the activities of a CHIS (Covert Human Intelligence Source – which includes undercover police officers) only requires authorization by somebody of Superintendent level. Furthermore such authorisations only need to be reviewed annually. We argued that if Parliament had contemplated that authorisations of CHIS activity could include forming sexual relationships with targets, then this would have been explicitly provided for. Clearly such conduct is more intrusive then telephone tapping, involving very serious interference with the right to private life and the right to bodily integrity so if Parliament had contemplated such relationships being covered by RIPA it is likely that it would have required authorisation by at the very least a Secretary of State not a police Superintendent. Given the seriousness of the interference with fundamental rights occasioned by the use of such relationships, we argued that the principle of legality requires the statute to be interpreted so as to exclude the use of sexual relationships because they are not expressly provided for, nor can it be said that the statute refers to them by necessary implication.
Finally we challenged the police submissions that there was any basis within which the IPT could be said to be an appropriate jurisdiction for the common law claims.
Justice Tugendhat sets out his conclusions at the very end of the judgment paragraphs 225 to 227:
1. He finds for the police in that he considers the IPT should hear the HRA claims
2. He finds for the Claimants in that the IPT cannot hear the common law claims
3. He finds against the police in that he doesn’t consider that pursuing the common law claims arising from the same facts as the HRA claims would be an abuse of process, but he favours the police view that the IPT hearing should come before any High Court action (by these claimants).
There are some helpful and some very unhelpful parts of his judgment:
Paragraph 17, the judge states that on the assumption that the allegations pleaded are true, “it cannot be doubted that the claims made in the present action are very serious”.
Paragraph 92, he makes clear, that RIPA can have no application to “unqualified” rights which include the right to life and the right not to be subject to torture and inhumane and degrading treatment. Thus, you cannot authorise a CHIS to kill someone or torture them, whatever the nature of the operation (although an act of killing or seriously harming someone can be lawful, if there is a defence in common law – eg self defence or necessity (see para 85).
Paragraphs 156 he sets out the sort of conduct which he considers is incapable of being authorised under RIPA – “conduct which amounts to an interference with a fundamental right under common law or an unqualified ECHR right”
However, at paragraph 158, he rejects what he states is our submission that “the establishment and maintenance by a police officer of a sexual ..relationship for the purpose of obtaining information or access to information is …by its nature so degrading as necessarily to fall within Art 3…”
He rejects this on the basis that an intimate sexual relationship is too broad and uncertain a concept (para 159)
However, at para 160, he states that a physical sexual relationship which is covertly maintained, is more likely to fall into the category of degrading, “depending on the degree and nature of the concealment or deception involved”
In rejecting our argument that all sexual relationships by undercover officers are unlawful, the judge recalls a case (para 169) that he tried in the 1980s involving some female undercover police officers who went to a nightclub to gain intelligence about drug dealing and potentially arrest drug dealers. In order to gain such intelligence they engaged in potentially sexual dancing with people at the night club. He considers this conduct could constitute a “sexual relationship” but would not amount to degrading treatment.
At paragraph 177, he provides the example of James Bond, which has been picked up by the press as “ludicrous”. In essence he is saying that James Bond and other fictional accounts of spies who have sex with innocent victims, undermines our argument that Parliament could not have contemplated that this sort of conduct might be established by a CHIS. They must have been aware that this was a possibility when they passed the legislation. (However, to take arguments from extreme fiction, is alarming, James Bond committed a range of extreme unlawful acts, such as extra judicial killing, that Parliament would also have been aware of but did not need to legislate for!)
At paragraph 207, the judge notes that after the hearing the Defendant changed their position on the argument that the police could not get a fair hearing of the common law claims because their policy of Neither Confirm Nor Deny in relation to Mark Kennedy could not be maintained. This was as a result of us becoming aware that mark Kennedy was himself taking action against his former bosses in the High Court, a fact the police failed to mention at the hearing. They subsequently accepted that the amount of information already in the public domain in relation to Mark kennedy could not sustain this argument. More broadly (and in relation to the Tuckers Claimants), at paragraph 217, the judge states that the NCND policy “does not give the equivalent of an immunity from claims in tort.”
The implications of this judgment for the eight Claimants and what happens next.
It will be necessary to decide whether we can and whether we want to appeal the judgment in respect of the jurisdiction of the IPT for three of the claimants. We need to consider if we have good grounds to appeal and whether we are able to obtain costs protection from an adverse result for the Claimants. It is also possible that the police could apply to appeal against the judge’s decision on the common law claims.
In the mean time there is nothing to stop us proceeding with the claims on behalf of the other five Claimants, although, given the approach by the police so far, they may apply to strike out our case on different grounds.
 Article 2 (the right to life) and Article 3 are rights which cannot be interfered with, whereas Article 8 (amongst others) is a “qualified right” which means it can be interfered with to protect the rights of others or the wider public interest