The Investigatory Powers Tribunal (IPT) was established under s. 65 of the Regulation of Investigatory Powers Act 2000 (RIPA). It is the only appropriate tribunal for the purposes of section 7 of Human Rights Act 1998 (HRA) in relation to, insofar as relevant for the purposes of this article, any proceedings under s. 7(1)(a), HRA (proceedings for actions incompatible with ECHR rights) against any of the intelligence services…or complaints properly made to them and any qualifying proceedings.

Complaints are those made to them where the IPT is the appropriate forum: s. 65(2)(b), RIPA and proceedings are those brought against the intelligence services (or their agents) or they are “proceedings relating to the taking place in challengeable circumstances of conduct falling within [s. 65(5), RIPA]”. That conduct includes that by or on behalf of the intelligence services and conduct by a police force under Part II, RIPA (use and conduct of covert human intelligence sources, directed and intrusive surveillance). Challengeable circumstances is defined in s 65(7) and (7A). The former relates to conduct that was or ought to have been authorized under RIPA and the latter conduct under s 76A (relating to foreign surveillance operations).

The possibility of an appeal or judicial review of the Tribunal’s decision-making was previously expressly excluded under s. 65(8), RIPA.

These two provisions in s 65, RIPA are known as “ouster clauses” (for ease theses are referred to the “jurisdiction ouster” and the “appeal ouster”, respectively). They have a unique constitutional significance: see the blog by Paul Daly, “Thinking again about ouster clauses: R (Privacy International) v Foreign and Commonwealth Secretary” and overview of and comprehensive draft paper by Professor Mark Elliott “Through the Looking-Glass? Ouster Clauses, Statutory Interpretation and the British Constitution”. This article is concerned with how the provisions have been applied in practice, the amendment relating to the appeal ouster in the Investigatory Powers Act 2016 (IPA 2016) and issues arising from one of the recent decisions on jurisdiction.

Jurisdiction

The leading case remains R (on the application of A) v B [2010] 2 WLR 1. The facts related to a manuscript written by a former member of the Security Service (MI5) who had then sought permission from the Service to publish it, without which, publication would almost certainly have constituted an offence under the Official Secrets Act 1989. Permission was refused and relying on R v Shayler [2003] 1 AC 247, the claimant brought proceedings for judicial review. The defendant resisted this, claiming that the appropriate forum was the Investigatory Powers Tribunal. The Supreme Court agreed.

The case was considered in AJK and others v Commissioner of Police for the Metropolis [2013] EWHC 32(QB), litigation arising from the activities of rogue undercover officers who had infiltrated protest groups and formed intimate relationships with persons from within the groups. The issue before the High Court was whether the nature of the relationship between the undercover officers and female protestors fell within the definition of use and conduct of a Covert Human Intelligence Source for the purposes of s 26(8) of RIPA and was therefore conduct taking place in challengeable circumstances. The relationship gave rise to both human rights’ based claims (under Article 8) and claims at common law (under the tort of deception). Tugendhat J held that it did in part fall within Part II of RIPA and that in the circumstances the proceedings insofar as they related to the alleged breach of the Human Rights Act 1998, must be heard by the IPT. However, the common law claims for damages fell outside the Tribunal’s jurisdiction. The judge ordered that pending the determination by the Tribunal, these should be stayed. This was upheld on appeal, although the stay was lifted.

Recent application

Jurisdiction

The jurisdiction ouster has been considered recently by the Court of Appeal in Northern Ireland in two cases: R (Sheridan) v Chief Constable of the Police Service of Northern Ireland and the Police Ombudsman of Northern Ireland [2017] NICA 54 and X v Ministry of Defence and Chief Constable of the Police Service of Northern Ireland [2017] NICA 66. The Sheridan decision insofar as it related to the construction of s 26, RIPA, has been looked at in detail here.

In Sheridan, the complaints had been made to the Ombudsman and Chief Constable about the conduct of police officers that had attempted to recruit the appellant as a covert human intelligence source. The appeal was dismissed. The judicial review constituted “proceedings” against a police force relating to conduct taking place in challengeable circumstances and the IPT had sole jurisdiction. In respect of the Ombudsman, the court held that since he was not mentioned in s. 65(5) the proceedings could in principle have proceeded against him.

In X the court at first instance also held that the human rights challenges arising out a similar approach to the claimant by police officers, fell within the exclusive jurisdiction of the IPT, although the tortious claims did not (this is entirely consistent with the earlier decision in AJK). The Court of Appeal, applying Sheridan, held that there was a sufficient factual basis for the judge reaching that conclusion and dismissed the appeal.

The jurisdiction of the IPT, set out in section 65 of RIPA, the jurisdiction ouster provision, is now widened by the IPA 2016 to reflect the increased investigatory scope of the new Act.

Appeals

In R (Privacy International) v Secretary of State for the Foreign and Commonwealth Department [2017] EWCA 1868 the appeal ouster was considered by the Court of Appeal (following a decision by the Administrative Court, which held that no judicial review was possible of the IPT’s decisions). The constitutional significance of the decision has been considered in the blog and paper referred to above and cannot be improved upon. This article seeks to highlight the amendment of RIPA so as to provide for a right of appeal in s 67A as a result of s 242 of the IPA 2016.

The detailed provisions of the IPA 2016 are analysed in Blackstone’s Guide to the Investigatory Powers Act 2016 but in summary, the right of appeal is available to a ‘relevant person’ (the complainant or respondent or person complained against and in the case of a reference made to the IPT, it includes a public authority). It is exercisable in tightly prescribed circumstances, namely a point of law arising out of a determination by the IPT under section 86(4), RIPA.             Permission to appeal is required and may be granted by the IPT or the appropriate appellate court that must, if permission is given, hear the appeal. The threshold for granting permission is high: an appeal must raise an important point of principle or practice or another compelling reason for granting permission must exist.

Current and future issues

The problem in Sheridan

The Court of Appeal held in Sheridan that a judicial review against the Ombudsman could proceed. It seemed to suggest it could do so because the failure to give reasons was not an issue within the jurisdiction of the IPT and “the fact that the Tribunal is the only appropriate tribunal for proceedings against the Chief Constable…”

A judicial review against the Ombudsman, as is the case with any public authority, can in principle proceed where there has been a failure to provide reasons but it is respectfully submitted that where proceedings relate as they did in Sheridan to “the taking place in any challengeable circumstances of any conduct falling within subsection (5)”, jurisdiction is, in such circumstances ousted. There is no requirement for the Ombudsman to be identified within the public authorities referred to in s 65. The Court of Appeal Northern Ireland may have been wrong on this point.

Interestingly, s 65 does not prevent the Ombudsman from considering a complaint of conduct under Part II of RIPA; the IPT has jurisdiction only in relation to eligible complaints made to it. The same must be true of the Independent Office for Police Conduct but any challenge to their decision by a complainant must be to the IPT and not an application for permission to move for judicial review.

Reach of the jurisdiction: criminal proceedings?

One interesting issue yet to be tested is whether jurisdiction to bring a challenge relating to the admissibility or propriety of unlawful surveillance and or the conduct of informers in criminal proceedings is also ousted. This is an uncomfortable proposition – the idea that the exclusionary remedies in ss 76 and 78 of PACE or the inherent jurisdiction of the court to apply the doctrine of abuse of process are ousted by s 65– but that is one interpretation of the provision. The counter argument is to examine the core of primary purpose of the proceedings but what seems clear in AJK and Sheridan is the court had no difficulty in hiving off those matters that were the sole jurisdiction of the IPT. A short amendment excluding criminal proceedings (which are already defined in RIPA) would cure any ambiguity. However, it is very unlikely that criminal defence lawyers or prosecutors will be raising the jurisdiction question any time soon; they may, to develop Professor Mark Elliott’s theme, consider such an application to be more suited to Alice in Wonderland than the law reports.

The family had reported an incident to the police in 2009. An unidentified gunman had fired a bullet through the front door of their house. A prosecution followed of individuals connected with possession of the firearm involved. Press reporting at the conclusion of this case identified the street where the family lived. Following this CLG received a letter referring to him as a “grass” and which included a spent bullet casing.

Some time later CLG and his partner were notified that they were required as prosecution witnesses at the trial of various persons accused of, among other things, firing guns into residential premises, including their former home. They failed to attend the trial following which the police applied for a warrant for their arrest. A witness statement by an officer in support of the application included a reference to the address where the family was now living. This should have been provided to the disclosure officer in usual way prior to it being disclosed to the Crown Prosecution Service. The purpose of doing so was to ensure the disclosure officer considered whether it included any sensitive material that may need to be protected. However, this did not happen and the statement was passed directly to the CPS.

The CPS should have considered the contents of the statement to see whether it contained any sensitive material before deciding what use to make of it. Again, this did not occur and it served the statement, including details of the appellants’ current address, on those representing the defendants under a notice of additional evidence. It was only after CLG and his partner were produced at court it became clear that the secure address had been disclosed. The family was moved to various temporary addresses before eventually finding permanent accommodation. The family sued the Chief Constable for damages for negligence and under the Human Rights Act 1998 and the Data Protection Act 1998. The Chief Constable denied liability on the basis that the CPS alone was responsible for the disclosure of the family’s address. In any event public policy operated to protect him from liability: first, the principle that the police are immune from proceedings based on acts and omissions committed in the course of their core duties of preventing and investigating crime and protecting property; and second, the principle that there is no liability for anything said or done in the course of judicial proceedings.

The trial judge held that the police and the CPS were both at fault, “the police having made what he described as a material contribution to the disclosure, and that they were jointly and severally liable for any breach of duty towards the appellants” but that public policy operated to obviate any duty of care. The judge relied on the line of authority beginning with Hill v West Yorkshire Police [1989] AC 53 and culminating in Michael v Chief Constable of South Wales Police [2015] UKSC 2. Further there was no breach of Article 2 of the Convention the family was not at “real and immediate risk of death or serious physical harm”. The claims under Article 8 and the Data Protection Act were also dismissed. Interestingly, the judge expressed the view that the public policy of witness immunity or immunity for acts done in the course of judicial proceedings would have provided a defence to any of the claims: see Darker v Chief Constable of the West Midlands [2001] 1 AC 435.

On the appeal the first issue the court examined was whether the information provided by the family was in confidence. It held that it was not. The family had provided witness statements and disclosed their addresses. Although it was not clear how the police were aware of the new address the court was satisfied it had not been disclosed in confidence. That said, the police were aware that disclosure of the address could have significant implications for the family’s safety. The next issue for the court therefore was whether in those circumstances the police owed a duty of care to the appellants to take reasonable steps to prevent that from happening.

The three-fold test in Caparo Industries plc v Dickman [1990] 2AC 605 applied. If this case had concerned only a relationship between private persons, it would have been fair just and reasonable to impose a duty of care. However, the police did not owe a private law duty of care to the public in general in carrying out their core functions. The question arising therefore was whether “in making a statement with a view to giving evidence of that fact and producing that statement to the prosecuting authority for the purposes of making an application for a warrant of arrest all form part of their core function of obtaining and preserving evidence, in the discharge of which they do not owe a duty of care to the public at large”. The court of appeal held that it fell within their core functions. So too their general interaction with witnesses, although they may assume a duty of care towards a particular individual if they have had dealings with him of a kind that involve an acceptance of responsibility for their safety.

The court also considered whether the trial judge was correct to indicate that the principle of judicial immunity would not otherwise have applied. The leading authority remained Darker. In that case the House of Lords held that the fabrication of evidence by police officers fell outside of the immunity. The principle has been considered in a number of other cases, including Taylor v Director of the Serious Fraud Office [1999] 2 AC 177 and Singh v Reading Borough Council [2013] EWCA Civ 909. In this latter case Lewison LJ (with whom Maurice Kay and Gloster LJJ) agreed, re-stated the relevant principles as follows:

“(i) The core immunity relates to the giving of evidence and its rationale is to ensure that persons who may be witnesses in other cases in the future will not be deterred from giving evidence by fear of being sued for what they say in court;
(ii) The core immunity also comprises statements of case and other documents placed before the court;
(iii) That immunity is extended only to that which is necessary in order to prevent the core immunity from being outflanked;
(iv) Whether something is necessary is to be decided by reference to what is practically necessary;
(v) Where the gist of the cause of action is not the allegedly false statement itself, but is based on things that would not form part of the evidence in a judicial enquiry, there is no necessity to extend the immunity;
and (vi) In such cases the principle that a wrong should not be without a remedy prevails.”

The principles have been considered again in the recent decision of Daniels v Chief Constable of South Wales Police [2015] EWCA Civ 680. In this case their Lordships held that “the scope of the immunity is limited to statements made by witnesses in the course of giving evidence and to certain limited but necessary extensions of that principle. The fact that an activity may be intimately associated with the judicial phase of the criminal process, as distinct from the administrative or investigatory function, arguably does not, in itself, necessarily give rise to immunity”.

The question for the Court of Appeal in this connection was whether the revelation of the statement by the police to the CPS was inexorably linked to the officer’s preparations to give evidence in support of the application by the prosecution for a warrant of arrest. Their Lordships held that it was as to hold the otherwise would outflank the immunity they were entitled to in relation to the evidence once given in court. The police were immune from action in respect of the revelation of the statement to the CPS notwithstanding it was negligent.

The Article 8 claim was dismissed by the trial judge on the basis, although the right had been interfered with, in that the family had been required to move house as a result of the disclosure, this was a reasonable response to an isolated event and was not as a result of a systemic failure. The court of appeal agreed. The data protection element of the appeal also failed, the court finding that the police were entitled to the exemption of prevention and detection of crime set out in s 29 of the Data Protection Act 1998.

Although the police and CPS can take some comfort from this judgment that public policy will in similar circumstances come to their aid, it highlights a number of underlying concerns. If the information had been provided in confidence or harm had come to the family, it may have been a very different outcome. It should be looked at as a lucky escape rather and an opportunity to learn from a near miss.

The key practical principles arising from the judgment are these:

– Examine the nature of the information provided by witnesses and other sources: if it is confidential onerous duties to maintain the confidentiality of it arise (see in particular R (on the application of WV) v Crown Prosecution Service [2011] EWHC 2480 (Admin))

– Check assiduous adherence to the statutory framework when dealing with disclosure, particularly if it is material that is or might be sensitive – avoid allowing the pressures of trial to dictate a deviation from well-established procedures

– If the source of the information is a Covert Human Intelligence Source, the framework set out in Part II of RIPA 2000 may give rise of a statutory duty of care: An Informer v A Chief Constable [2012] EWCA Civ 197

– “Real and Immediate” in the context of Article 2 is a high threshold to meet and one that is not readily satisfied: Re: Officer L [2007] UKHL 36

© Simon McKay (2015). Please ask for my permission before using or copying the material contained on this blog. If you do attribute it to me with a link to the original content. This is opinion, not legal advice.