The decision of the Investigatory Powers Tribunal (IPT) in the case of Davies v British Transport Police (dated 30 April and 10 July 2018) attracted an almost sensational level of commentary on social media yesterday, 11 July 2018. At first glance it is easy to see why: the judgement found that BTP officers had engaged in ‘unlawful surveillance’, were inexcusably ignorant of the provisions of the Regulation of Investigatory Powers Act 2000 (RIPA), and awarded Mr Davies over £46,000 damages. At a superficial level, the judgement represented evidence of robust oversight by a specialist and at times secret tribunal that is often criticised as lacking the preparedness to hold the surveillance state to account. However, a detailed examination of the short judgement (which runs to only 10 pages) raises more questions than answers and should be treated with considerable caution.

Such facts as can be elicited from the judgement are few. Mr Davies is a retired senior police officer, now employed by a local authority. He is of good character. On 10 May 2016, he was arrested during a train journey and in due course charged with five offences of sexual assault. He later stood trial and was acquitted of all counts.

On the day of his arrest, Mr Davies was the subject of directed surveillance (covert but not intrusive surveillance pursuant to s 26 of RIPA) during a train journey. This appears to have been based on a complaint received from a female commuter by BTP of sexual assault that was supported by photographic evidence taken by the complainant. The officers took further photographs of Mr Davies covertly during the surveillance operation and it appears these formed a significant part of the evidence against him. During the course of his trial, it emerged that BTP had failed to obtain a directed surveillance authorisation in respect of conduct engaged in. Following his acquittal, Mr Davies lodged a complaint with the police alleging, amongst other things, that authorisation for the surveillance on 10 May 2016 should have been sought. The police agreed, finding that the investigating officer who took part in the surveillance operation demonstrated a ‘serious inability and failure to perform as a detective’. For the purposes of the IPT case, BTP admitted liability but disputed the claim for damages (Mr Davies sought damages of over £85,000).

BTP’s case on the question of damages was that the conduct engaged in was ‘merely [a] technical breach of RIPA’ as the officer could have applied for authorisation and, if he had done so, would have obtained it. There was no bad faith. The IPT disagreed in part. It identified a number of facts not mentioned by BTP in its evidence but which it considered material to the question of whether an authorisation could have been granted in the circumstances. In summary these were that: (i) no proper statement had been obtained from the complainant; (ii) no other enquiries had been made or were considered prior to the covert deployment; (iii) the circumstances under which the complainant had taken a photograph of Mr Davies were not explored; (iv) there was no urgency; and (v) the investigating officer doubted the credibility of complainant. In a rare use of superlative, the IPT held that it was ‘astonished’ that BTP’s evidence was that authorisation for the directed surveillance operation would have been granted. Indeed, the Tribunal described the evidence (provided by a senior officer) as ‘disturbing’ and representing an ‘imperfect grasp of the relevant law’.

Based on this factual matrix, it is hardly surprising that commentators expressed such dismay about BTP’s conduct. However, the judgement is notable for the complete absence of any legal analysis justifying the core conclusions reached. From a legal perspective, the findings are hugely problematic.

The first difficulty is the finding that the conduct engaged in was ‘unlawful surveillance’. This is contrary to specific provision within RIPA and inconsistent with at least one earlier judgement of the IPT. Section 80 of RIPA is of central importance here (but not referred to in judgement). It provides (emphasis added):

Nothing in any of the provisions of this Act by virtue of which conduct of any description is or may be authorised by any warrant, authorisation or notice, or by virtue of which information may be obtained in any manner, shall be construed

(a)as making it unlawful to engage in any conduct of that description which is not otherwise unlawful under this Act and would not be unlawful apart from this Act

(b)as otherwise requiring

(i)the issue, grant or giving of such a warrant, authorisation or notice, or

(ii)the taking of any step for or towards obtaining the authority of such a warrant, authorisation or notice,

before any such conduct of that description is engaged in; or

(c)as prejudicing any power to obtain information by any means not involving conduct that may be authorised under this Act.

In the early IPT decision of C v Police and Secretary of State [2003], the Tribunal considered unauthorised covert surveillance activity by a police force against the retired officer it thought had improperly claimed medical retirement. In considering carefully the effect of s 80 it held that ‘surveillance by public authorities is not of itself unlawful at common law, nor does it necessarily engage article 8 of the convention’. It went on to say that it was not the effect of s 80 to impose a ‘general prohibition… against conducting directed surveillance without RIPA authorisation’. The scheme under RIPA, it held, was no more than a ‘voluntary system of self-authorisation’.

The operation in Davies was clearly non-compliant but, in light of the statutory framework, is difficult to comprehend the finding by the Tribunal that the surveillance was ‘unlawful’.

The second difficulty is the finding by the Tribunal that the taking of the photographs of Mr Davies constituted an interference with his expectation of privacy. The Supreme Court in Kinloch v Her Majesty’s Advocate[2012] UKSC 62 considered the question of expectation privacy in public spaces in the context of unauthorised covert policing activity. It held:

There is nothing in the present case to suggest that the appellant could reasonably have had any expectation of privacy [while he was in public view]. He engaged in these activities in places where he was open to public view by neighbours by persons in the street or by anyone else who happened to be watching what was going on. He took the risk of being seen and of his movements being noted down… I do not think that there are grounds for holding the actions of the police amounted to an infringement of his rights under article 8.

It is difficult to reconcile the findings of the Tribunal with those in Kinloch (and other authorities to the same effect).

The third difficulty is the Tribunal’s reasons insofar as they relate to the criminal investigation and trial following the covert surveillance. It is critical of a press release relating to Mr Davies’ arrest, refers to ‘the dubious and contaminated evidence obtained from local surveillance’ and concludes that in the absence of this Mr Davies would not have been charged, let alone face a trial. These are findings that it is unclear the Tribunal was equipped to make, not least as they are predicated on a characterisation of the nature of the surveillance which, for the reasons set out above, is inconsistent with statute and authority. But moreover the prosecution was brought by the CPS, not the police, there was no application to exclude the evidence at trial, nor was there an application to dismiss the proceedings. Squaring the Tribunal’s findings with those inescapable facts is very difficult. The Tribunal noted that it was open to the defence to apply to exclude the evidence but they probably did not do so for sound tactical reasons. This may be correct, but it does not make good what is otherwise an inherently flawed analysis of the criminal trial process.

There are other difficulties with this short judgement. The officer in the case is to face disciplinary charges. The jurisdiction for a police force to discipline in such circumstances needs to be carefully considered in light of s 65 of RIPA. The commentary the judgement has inspired may also lead to confusion that non-compliance with RIPA is an issue of either admissibility or the propriety of criminal proceedings. Even the IPT recognised in Davies that non-compliance with RIPA is unlikely to result in the exclusion of evidence.

Proper sanction for non-compliance is an important safeguard under RIPA. The level of damages awarded in this case is likely to represent a significant shift in operational decision-making in this area. Perhaps this is to be welcomed. However, what should be treated with caution is a judgement from a specialist Tribunal which lacks any consideration of relevant statutory provisions and moreover its own earlier decisions.