Sex in the IPT

November 8th, 2013

As with all the best headlines, this one is slightly misleading. Readers can scarcely fail to have noticed the coverage surrounding the major ongoing case regarding a former undercover (under-the-covers?) police officer, Mark Kennedy, who (together with others) infiltrated political and environmental activists over a period of years. Claims were commenced in the High Court, with part of the conduct complained of involving ensuing sexual relations between activists/their partners and undercover officers.

Earlier this year, AJA and others v Commissioner of Police for the Metropolis [2013] EWHC 32 (QB) saw part of the claims struck out. The Court held that the Investigatory Powers Tribunal had exclusive jurisdiction over the claims under the Human Rights Act 1998; it struck out these parts accordingly. It observed that conduct breaching Article 3 (inhuman and degrading treatment) – which included the claims relating to sexual activity – could not be authorised under RIPA, but conduct breaching Article 8 (privacy) could be authorised. Sexual activity with undercover officers did not necessarily engage Article 3.

Those parts of the claims which did not concern the Human Rights Act 1998 (actions at common law and for alleged breaches of statutory duties) were not exclusively within the Investigatory Powers Tribunal’s jurisdiction and were thus not struck out as an abuse of process, notwithstanding the police’s difficulties in presenting its case due to the ‘neither confirm nor deny’ approach to covert sources. However, the common law claims were stayed to await the IPT ruling.

The Court of Appeal has now reviewed the decision of Tugendhat J: [2013] EWCA Civ 1342 (Lord Dyson MR, Maurice Kay and Sharp LJJ). In essence, the Court of Appeal felt the High Court judgment was half right.

The Court rejected the submission that words “personal or other relationship” in s.26(8)(a) of the Regulation of Investigatory Powers Act 2000 formed part of the definition of the type of conduct which could be authorised under s.27 (lawful surveillance) and which, if it was carried out in challengeable circumstances, might be the subject of human rights proceedings before the IPT under s.65. In the plain and ordinary meaning of the words, it included intimate sexual relationships. While some readers of this blog may have had intimate sexual relationships which felt rather impersonal, in general terms it is difficult to see how the Court of Appeal could have concluded otherwise. Parliament clearly intended that human rights proceedings about the establishing of relationships by undercover police officers should only be determined by the IPT: R (A) v Director of Establishments of Security Service [2009] UKSC 12; [2010] 2 AC 1. The IPT had jurisdiction to determine the human rights claims made and was the appropriate forum for their determination.

However, the Court overturned the decision to stay the common law claims (for the torts of deceit, misfeasance in public office, assault and negligence). The legislation gave no priority to the IPT proceedings. It was difficult to see how a decision of the IPT would assist in resolving procedural issues which arose in the court proceedings. The IPT would only issue a summary of its determination and it was difficult to see how that would assist the court. The judge failed to apply the correct test and ask himself whether the respondents had shown that there was a real risk of prejudice to them if the court proceedings took precedence over the IPT proceedings. The respondents could not point to a real risk of injustice if the High Court proceedings continued and certainly not one which outweighed X’s and F’s rights to have their claims heard in open court. The stay was lifted.

The individuals who are understandably aggrieved and distressed by the actions of the undercover officers have a won a partial victory. Given the difficulties the police will have in defending the tort claims in open court without revealing material they do not wish to, the lifting of the stay may well end up being the much more important limb of the decision.

For those interested in the background to this case, see this review from the LRB of a recent book on the activities of officers like Mark Kennedy, which explains in some detail the effect undercover relationships have had on both ‘targets’ and officers.

Christopher Knight


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