In AKJ & others v Commissioner of Police of the Metropolis & others  EWHC 32 (QB) the High Court determined the appropriate tribunal to try various claims brought by political activists who allege they were deceived into entering sexual relationships with undercover police officers.
The 7 Claimants in these 2 ongoing actions are all political activists. 6 women allege that they were deceived by 2 police officers who represented themselves as fellow activists and induced the women to enter into long term and committed sexual relationships with them. The 7th Claimant is a man who alleges that he was deceived by one of the officers who seduced his girlfriend while pretending to be his friend. The Claimants have brought a long list of claims, including under s.7 of the Human Rights Act 1998 (HRA) for breach of Art. 3 ECHR (prohibition against inhuman or degrading treatment) and Art. 8 (right to a private life), misfeasance in public office, deceit, trespass to the person, negligence and breaches of the Data Protection Act 1998.
Tugendhat J’s judgment in AJK & others arose out of the Defendants’ preliminary application to strike out or stay the claims. The Court was asked to determine 3 issues:
Issue 1: Whether the Regulation of Investigatory Powers Act 2000 (RIPA) gave the Investigatory Powers Tribunal (IPT) jurisdiction over the claims brought under the Human Rights Act 1998 (HRA). If so, was this an exclusive jurisdiction?
Issue 2: Whether the IPT could hear the claims based on the common law and breach of statutory duty (i.e. the non-HRA claims).
Issue 3: Whether the non-HRA claims should be struck out as an abuse of process on the basis that the police would be unable to have a fair trial in the High Court because of the police’s policy of neither confirming nor denying allegations as to covert sources.
The first issue was aimed at determining the appropriate forum for the Claimants’ HRA claims. The Defendants argued these could only be heard in the IPT, a statutory tribunal established under RIPA. Hearings in the IPT would be held in the absence of the Claimants and with substantially restricted disclosure of documents and information. Essentially, the question to be determined was whether conduct involving the covert establishment or maintenance of sexual relationships by police officers, in order to gain information, was conduct that took place in “challengeable circumstances” within s.65(7) of RIPA. If it was, then the IPT was the only appropriate forum for the HRA claims (see R (on the application of A) v Director of Establishments of Security Service  UKSC 12).
Under ss.65(7) and (8) RIPA, conduct takes place in “challengeable circumstances” if, amongst other things, “it takes places with the authority or purported authority” of an authorisation under Part 2 of RIPA (which itself deals with surveillance and covert human intelligence sources). Part 2 includes s.26(8), whereby a person is a covert human intelligence source if he establishes or maintains a personal or other relationship with a person for the purpose of using that relationship to obtain or access information. The Court’s focus was on the interpretation of s.26(8).
The Claimants argued that developing a sexual relationship was not conduct to which Part 2 of RIPA could ever be said to apply. Therefore it could not be the subject of an authorisation, and the HRA claims must be heard in the High Court rather than the IPT. 2 arguments to support this submission were relied on:
(1) That the Court was required to interpret s.26(8) RIPA as being limited by the fundamental rights of the individual, and sexual relations were part of the right to privacy.
(2) That the legislature did not intend s.26(8) to encompass sexual relationships (the “statutory intention” argument). As explained below, Tugendhat J’s approach to this argument has ‘won’ him many columns’-worth of commentary in the print and online media.
The Claimants were unsuccessful on this first issue. Tugendhat J found that the covert establishment or maintenance by a police officer of a sexual relationship for the purpose of obtaining or accessing information would be conduct that took place in challengeable circumstances. Therefore, only the IPT had jurisdiction to deal with the HRA claims. In reaching this conclusion his reasoning included:
- Conduct amounting to an interference with the right not to be subjected to degrading treatment (whether protected under common law or Article 3 ECHR) could not be authorised under Part 2 of RIPA.
- Where conduct was not more than an interference with the right to privacy, this was capable being authorised under Part 2 of RIPA. The express purpose of RIPA is to provide for the lawful interference with such rights.
- A sexual relationship established or maintained covertly is not by its nature degrading treatment. Tugendhat J said at :
“In my judgment, what is or is not a sexual relationship, or an intimate 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”
- There is no clear distinction between sexual and other personal relationships, such that the sexual element should take the relationship outside of the possible scope of authorisations under Part 2 of RIPA.
In rejecting the Claimants’ statutory intention argument Tugendhat J essentially concluded that Parliament might well have had little idea as to whether, or in what circumstances, it might be lawful or unlawful for undercover officers to use deception to develop sexual relationships. However, provided such relationships do not involve degrading treatment, there was no evidence to support the Claimants’ submission that Parliament did not intend they could be authorised.
The Judge could have left his reasoning there. But he did not, and to the glee of journalists, he conjured up the world of James Bond as an example of intelligence services using relationships with women to obtain information. He said such “fictional accounts lend credence to the view that the intelligence and police services have for many years deployed men and women for form sexual relationships” for information and access. Whilst this may well be true, the logic is certainly questionable.
The Defendants argued that the IPT also had jurisdiction to hear the Claimants’ non-HRA claims. Tugendhat J disagreed, deciding that for claims in tort or under a statute other than the HRA, the IPT simply had no jurisdiction.
The potentially unsatisfactory consequence of this decision is well-illustrated by the facts of these cases. The Claimants’ HRA claims will be determined in the IPT. The non-HRA claims would fall to be determined in the High Court. However, the causes of action all arise out of the same or similar facts. Indeed at the end of this hearing, Tugendhat J was asked to decide which tribunal should ‘go first’.
The Defendants asked the Court to strike out the non-HRA claims (those being tried in the High Court). They argued that the police’s policy of neither confirming nor denying allegations as to covert sources meant they could not defend themselves if the proceedings were held in open court (i.e., in the High Court).
The Court recognised the importance of this policy as a means of preserving the confidentiality of police operations but said it could not amount to the equivalent of immunity from claims in tort. Tugendhat J acknowledged there may be cases in which the policy would outweigh a claimant’s right to proceed with civil proceedings (making strike out possible). But in the present application the Defendants had failed to provide any real evidence to support such a conclusion.
This 52 page judgment gives a helpful tour of the complex provisions relating to the IPT and is a worthwhile read for anyone dealing with RIPA. It also highlights the possible disadvantages for claimants who chose to advance claims under the HRA in RIPA cases.
Tugendhat J’s decision also brought the controversial facts of these cases back into the public sphere and gave a teasing glimpse of possible future hearings. A few days after judgment a UN special rapporteur was called on the British government to hold a judge-led public inquiry into the practice of using undercover police to develop sexual relationships with non-violent political activists.
Looking to the future, the HRA claims will be dealt with in the IPT, a tribunal where transparency is inevitably heavily restricted. It might be predicted that the non-HRA claims will never come to trial, because the ‘neither confirm nor deny’ policy will lead to either settlement or strike out. However, there is a potential ‘life-line’ for observers wanting to know the outcome of 3 of the claims. This is because the identity of the undercover officer involved with these women is widely known (a former officer called Mark Kennedy). Therefore, the ‘neither confirm nor deny policy’ has less, if any, relevance to those claims and, at least in theory it might be open to the Defendants to defend their interests in open court.
Finally, Tugendhat J left open the possibility that conduct involving the covert establishment or maintenance of sexual relationships by a police officer might amount to degrading treatment in some situations. Such degrading treatment could not be authorised under Part 2 of RIPA and would fall outside the IPT’s jurisdiction. But, for this to be decided presumably requires a detailed inquiry into the facts alleged to amount to degrading treatment. It is by no means clear how, by whom, or at what stage in proceedings this inquiry would be undertaken.