Human rights claims against undercover police to be heard in secret – Simon McKay

18 January 2013 by Guest Contributor

Mark Kennedy

AKJ & Ors v Commissioner of Police for the Metroplis & Ors [2013] EWHC 32 (QB) – Read judgment

The High Court has ruled that the Investigatory Powers Tribunal was the exclusive jurisdiction for Human Rights Act claims against the police as a result of the activities of undercover police officers, authorised as Covert Human Intelligence Sources, where such conduct was not a breach of a fundamental right. The Tribunal did not have jurisdiction to determine proceedings brought by Claimants at common law.  

The decision of AKJ and related litigation is the latest instalment of the fallout from the activities of undercover police officer or Covert Human Intelligence Source (CHIS) Mark Kennedy and another police officer.  Kennedy infiltrated environmental protest groups including those that resulted in convictions following events at Ratcliffe on Soar power station. The convictions were later quashed following revelations about Kennedy’s activities which included allegations he had engaged in sexual relationships with a number of female protestors and other prosecutorial impropriety: R v Barkshire [2011] EWCA Crim 1885 (UKHRB post). A number of those affected by Kennedy’s actions subsequently brought claims in tort (for example alleging deception) and under the Human Rights Act 1998.

This ruling by Mr Justice Tugendhat relates to which court or tribunal should hear the victims’ claims for compensation as a result of section 65 of the Regulation of Investigatory Powers Act 2000 (the 2000 Act) and the Supreme Court decision of R (on the application of A) v Director of Establishments of Security Service [2010] 2 AC 1 also referred to as A v B. The alternatives were the normal courts (in this case the High Court) or the highly secretive Investigatory Powers Tribunal (IPT).

The background

The background to A v B is very interesting. A was an MI5 officer who wished to publish a book about his experiences with the organisation. He followed what was then the procedure laid down by the court in the David Shayler case which was by way of first asking the organisation to agree to publish and if they refused to bring a judicial review of the refusal. However, MI5 (the Security Service) argued that following the 2000 Act the procedure had changed. This argument appeared something of an afterthought at the time since the 2000 Act was in force by the time the Shayler case was decided but the Supreme Court dealt with this by stating somewhat unsatisfactorily that no one had referred them to the 2000 Act during the course of the proceedings.

In the event the Supreme Court held in A v B that in respect of challenges by members of the intelligence agencies (as opposed to the police) the IPT was the appropriate venue to determine the issue of whether permission should be given.

The questions the court was required to answer in AKJ v CMP were threefold:

1.              Did section 65 of the 2000 Act mean that the Claimants had to have their Human Rights Act claims decided by the IPT?

2.              Could the IPT hear the other claims brought in tort?

3.              If the IPT could hear the non-Human Rights Act claims what should happen to the proceedings issued in the High Court in the interim?

The Court dealt with the powers of the IPT at paragraphs 98 to 103 before addressing the three questions set out above.  Importantly section 65 of the 2000 Act states that the IPT is the exclusive tribunal for proceedings under section 7(1) (a) of the Human Rights Act 1998 (an act by a public authority incompatible with rights of the individual under the European Convention on Human Rights). This includes the acts of undercover police officers that take place in challengeable circumstances.

The focus of the Claimants’ arguments was that the sexual activities of Mark Kennedy fell outside those of an undercover officer that could be authorised for the purposes of the 2000 Act (and therefore the jurisdiction of the IPT).

Important ruling

In an important ruling in respect of the activities of undercover police officers and other Covert Human Intelligence Sources, Tugendhat J held that where these interfere with a fundamental right they cannot be authorised under the 2000 Act.  However where the conduct interferes with a right that is less than a fundamental right (such as the right to privacy, for example) this is capable of being authorised as part of the conduct engaged in when acting as a CHIS. The definition of a sexual relationship “is too broad and uncertain a concept for the whole range of such possible relationships to be characterised as degrading and so outside the scope of any possible authorisation” said the judge, an opinion that is likely to be controversial.

In terms of the questions the Court was asked to answer, unsurprisingly perhaps in light of Tugendhat J’s views on the scope of conduct capable of being covered by the 2000 Act, he was of the view that the IPT had exclusive jurisdiction.

As to the second question relating to non-Human Rights Act claims, the judge held that the IPT had no jurisdiction to hear these. Section 65 did not apply as the proceedings were not a complaint as they would be required to be under section 65(2) (b) and (4).

But what should the court do in respect of the common law proceedings issued pending the resolution of matters before the IPT? Counsel for the Police said they should be either struck out or stayed. In an interesting approach to this issue the Police argued that they could not have a fair trial in the High Court as it would undermine, amongst other things, the principle of neither confirming nor denying (NCND) an allegation which, if true, would relate to sensitive information or practices.

Counsel relied on the decision in Al Rawi v Security Service [2012] 1 AC 531 (UKHRB post) which held that secret hearings in civil proceedings were not permissible unless there was legislation permitting this (and hence the current Justice & Security Bill on the subject). This argument was rejected by Tugendhat J, who concluded there was no evidence that the Claimants’ rights to bring non-Human Rights Act claims “are outweighed by the public interest in ensuring that information about police operations are not disclosed to the public at large”.

Importantly the judge held that the policy of ‘neither confirm nor deny’ “does not give the equivalent of an immunity from claims in tort”. The proceedings were not an abuse of process in the circumstances and would not be struck out.  However, the interests of justice would be better served by hearing the IPT proceedings first and pending this, the proceedings would be stayed.

Simon McKay is a solicitor advocate at McKay Law Solicitors & Advocates and author of Covert Policing: Law & Practice (OUP, 2011)

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