The case is a complex one; there are essentially two sets of claims being brought by eight Claimants represented by two law firms. The Claimants allege a breach of their human rights under Arts. 3, 5 and 8 of the ECHR; and also civil claims for deceit, assault, misfeasance in public office and negligence. Currently at issue is whether the claims should be heard in public in the High Court or in the secretive and unaccountable Investigatory Powers Tribunal (IPT). At first instance Justice Tugendhat had ruled that it was the IPT that had jurisdiction to hear the human rights claims, and issued a stay of proceedings on the civil claims on the basis that the human rights claims should be heard first.
The Court of Appeal’s Ruling
At appeal, the Claimants had contended that under the legality principle, the ambiguous wording of s.26(8)(a) RIPA 2000 should be interpreted in a way which does not undermine fundamental human rights. However the Court concluded that the wording of the provision should be read in its plain and ordinary meaning, and this would necessarily include sexual relationships. The Claimants’ contention that this was not what Parliament had intended when enacting RIPA was rejected.
“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 court therefore ruled that the human rights claims must be heard by the IPT. However on the second point the Judges ruled in favour of the claimants. Justice Tugendhat had issued the stay on the basis that the findings of the IPT may have been helpful to the High Court but the Appeal Judges observed that:
“…there is no guarantee that the procedures adopted by the IPT in any particular case will satisfy the common law requirements of natural justice. There is, therefore, a real risk that, if the High Court relied on findings expressed by the IPT, it would itself be acting in breach of natural justice.”
The judges also found that the Respondents had not provided sufficient evidence to show there was a risk of injustice as a result of their not being able to defend themselves.
“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.”
Therefore the civil claims will proceed in the High Court and will be heard before the human rights claims in the IPT.
It is of course disappointing that the proceedings will not be subject to full public scrutiny. The claimants will have an extremely tough time succeeding in the IPT given its dire track record for upholding complaints. Cases like this highlight that Judges can only interpret the law and ultimately have little power when Governments have enacted deliberately draconian laws- regardless of their views. It should be noted that in relation to the wider issue of the conduct of undercover operatives, some sympathy was shown for the claimants:
“We accept that the establishing and/or maintaining of an intimate sexual relationship for the covert purpose of obtaining intelligence is a seriously intrusive form of investigatory technique. We do not think that it is in issue that it amounts to an invasion of an individual’s common law right to personal security and of a most intimate aspect of the right to privacy under article 8 of the Convention”
The result could have been worse but I do not view it as a cause for celebration. The Respondent police forces are moving to have the High Court claims struck out altogether as an abuse of process. In the event this is unsuccessful they have indicated that they will attempt to force the High Court to adopt closed material procedure, introducing yet another insidious layer of secrecy over even the parts of the hearing which were meant to be heard in the open. I suspect the police are fully aware that their actions are indefensible and are therefore willing to exhaust every possible option to prevent any scrutiny whatsoever of their actions. For the eight victims the up-hill battle continues- perhaps the worst is yet to come.
The strike-out hearing will be heard on 20th or 21st November.