Sexual liaisons by undercover police officers could be authorised by RIPA
6 November 2013
AJA and others v Commissioner of Police for the Metropolis  EWCA Civ 1342 – read judgment
The words “personal or other relationship” in the section 26(8)(a) Regulation of Investigatory Powers Act 2000 included intimate sexual relationships so that the Investigatory Powers Tribunal had jurisdiction to hear the appellants’ claims that their human rights had been violated by undercover police officers who had allegedly had sexual relationships with them
There were two groups of claimants in this case. The first three were represented by Birnberg Pierce & Partners (referred to as “the Birnberg claimants”). The second three were represented by Tuckers (referred to as “the Tuckers claimants”). Both groups alleged that they had suffered violations of their rights under Articles 3 and 5 by the officers for whom the respondents were responsible and that such conduct was contrary to the Human Rights Act 1998 s.6(1). They appealed against a decision that the Investigatory Powers Tribunal had jurisdiction to decide their human rights claims and that High Court proceedings should be stayed pending the IPT’s determination.
The Birnberg claimants were environmental activists and protestors. A police officer used a false identity which was provided to him by the first respondent to deceive all three claimants into embarking on intimate sexual relationships with him while he was performing his duties as an undercover officer. These relationships lasted between seven months and, in the case of one claimant, seven years. He knew that none of the claimants would have entered into the relationship and consented to sex with him if they had known his true identity and his true purpose. He used his sexual relationships with the claimants to enable him to gather intelligence. These relationships were known about by other police officers.
The Tuckers claimants were all members of an “anarchist” body engaged in direct action and political protest in relation to domestic and international issues. A police officer told the claimants that he was a truck driver and that he was separated from his former partner. Between 2005 and 2009, he formed close relationships with all three claimants, including sexual relationships with the first and second claimant.
RIPA was introduced principally to ensure that covert investigatory powers were used in compliance with Article 8 of the Convention. When introducing the Bill on its Second Reading, Home Secretary Jack Straw said:
Part II of the Bill covers the use of intrusive surveillance, directed surveillance and covert human intelligence sources. Those are not new powers, but the provisions in this part of the Bill will put their use on a statutory basis. Part II does not create any illegality in the use of Part II techniques, but it will ensure that the use of the powers is properly regulated. Where such actions are authorised properly under the provisions of the Bill, that will be an answer to any subsequent assertion based on article 8 of the European Convention that a person’s privacy has been invaded without justification.
The claimants also submitted that the establishment of an intimate sexual relationship for the covert purpose of obtaining intelligence would, if permitted by RIPA, be the most intrusive form of covert investigatory technique. It would amount to a gross invasion of an individual’s fundamental common law right to personal security ( GG v Secretary of State for the Home Department  EWCA Civ 786,  QB 585) and the same conduct involved the commission of the torts of deceit, misfeasance in public office, assault and negligence. They contended that Parliament, in passing RIPA, had not been aware of the possible use of sex as an undercover investigatory technique (and did not intend it to be so used).
The judge at first instance had found that Part II of RIPA covered to the alleged conduct, on the footing that the conduct complained of involved the establishing and maintaining of a “personal or other relationship” within the meaning of section 26(8)(a), and that therefore the IPT had jurisdiction to decide the human rights claims. He stayed the proceedings pending the determination of the human rights claims by the IPT on the basis that a decision of the IPT would be of assistance in resolving difficult procedural issues.
The Court of Appeal dismissed the appeal on the question of the application of RIPA but upheld the appeal on the judge’s order to stay the high court proceedings.
Reasoning behind the judgment
The Court acknowledged that there was nothing to indicate that Parliament intended that the general power could be exercised in such a way as would infringe fundamental rights. On the other hand, the whole point of the system of authorisation under RIPA was to enable state agents to interfere with an individual’s fundamental rights, provided that the conditions of necessity and proportionality stated in section 29(2) were satisfied. The words “personal or other relationship” in s.26(8)(a) formed part of the definition of the type of conduct which could be authorised under s.27 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.
To give “personal or other relationships” its ordinary meaning so as to include intimate sexual relationships does not produce any startling or unreasonable consequences which Parliament cannot have intended. That is why we do not consider that the principle of legality requires the words to be given a narrower meaning than they naturally bear.
The fact that the use of a covert human intelligence source was at the less intrusive end of the spectrum was not a sufficient reason for giving the words a meaning which they could not bear, nor was there any rational basis for drawing a distinction between sexual and non-sexual relationships for the type of conduct that could be authorised under s.27:
Parliament clearly intended that human rights proceedings about the establishing or maintaining of relationships by undercover police officers should only be determined by the IPT. The proposition that sex is the thing that makes all the difference between a case that is sensitive enough to be required to be heard in a special tribunal and a case which is not so sensitive is absurd. The reason why the case needs to be heard in the special tribunal is because it relates to undercover operations, arising out of personal or other relationships.
The claimants did succeed on their argument that the judge below had been wrong to stay the high court proceedings pending the outcome of the proceedings before the IPT. The IPT would only issue a summary of its determination and it was difficult to see how that would assist the court. Furthermore, the IPT’s jurisdiction was equivalent to that exercised by a court on an application for judicial review (section 67(2) of RIPA). It was ill-suited to the determination of claims that involve many issues of fact relevant to both liability and damages. 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. His decision was flawed and plainly wrong. As the Master of the Rolls observed at para 65:
the non-HRA claims are serious ones, they are validly constituted, and the appellants wish to litigate them. As matters currently stand, in our view the respondents cannot point to a real risk of injustice if the High Court proceedings continue; and certainly not one which outweighs the appellants’ right to have their claims heard in open court in accordance with procedures which have been developed and designed to provide a fair route to a just result. In short, for the present, the respondents’ arguments do not demonstrate that it is in the interests of justice to stay the High Court proceedings and the appellants should therefore be allowed to proceed with them.
The stay was accordingly lifted.
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