Bryant & Ors, R (on the application of) v The Commissioner of Police of the Metropolis

Article 8 may impose positive obligations on public authorities to take reasonable steps to safeguard private life. In an arguable case, this may include warning identifiable potential victims where the police possess information indicating a risk of unlawful interference. Whether action is required depends on the circumstances, including proportionality and operational considerations.

A decision not to investigate alleged criminality or notify potential victims remains amenable to judicial review. At the permission stage, the court asks whether the claim is arguable with some real or reasonable prospect of success. The court need not decide the merits or resolve complex factual disputes. An ongoing investigation does not necessarily render a claim academic or prevent judicial review of the adequacy of an earlier investigation.

The claimants sought permission to bring judicial review proceedings against the Metropolitan Police concerning its 2005–2006 investigation into alleged unlawful interception of mobile telephone voicemails associated with the News of the World. They alleged that the police had failed to investigate adequately and to inform them that information relating to them or persons close to them had been found.

Permission had previously been refused on the papers by Mitting J on 3 February 2011. Subsequent disclosures and the commencement of a further police investigation materially changed the factual picture. The central issues were whether the claims were arguable under Article 8, whether they were academic, and whether the police’s investigative discretion was reviewable.

1. Permission granted. The court granted permission to all four claimants, while warning that the merits, particularly Mr Montague’s claim, should be kept under review after the defendant’s evidence.
2. At the permission stage the question was whether the claims were arguable, with some real or reasonable prospect of success. The court was not required to determine the ultimate merits or undertake the full factual investigation that would be required at the substantive hearing.
3. Article 8 can impose positive obligations on public authorities. The principles reflected in Airey v Ireland, Guerra v Italy and López Ostra v Spain supported an arguable extension of that protection to circumstances in which the police possess information suggesting that identifiable individuals may face unlawful interference with private life. Osman v UK showed that protective obligations concerning physical integrity may also fall within Article 8.
4. The analogy with environmental-risk cases was factually imperfect, but the difference did not make the claim wholly untenable. A police force might have reasons to take limited action or no action in a particular case, but questions of necessity and proportionality required full argument.
5. The claims were not academic. They concerned what should have been done during the original investigation, and the claimants sought declaratory relief and just satisfaction for an alleged past breach. The later investigation did not preclude consideration of the earlier conduct.
6. The police discretion recognised in R v Commissioner of Police for the Metropolis ex p Blackburn did not prevent review at this stage. The court needed evidence about how the relevant decision had been made. The cautious approach to review of prosecutorial decisions described in R v DPP Ex p Manning did not make the present claims unarguable.
7. The court directed that the order should protect the ongoing investigation, permitting the Commissioner to seek directions concerning disclosure or other matters which might impede it.

1. High Court (Administrative Court): Mitting J refused permission on the papers on 3 February 2011.
2. High Court (Administrative Court): On renewal, Mr Justice Foskett reconsidered the application in light of significant further information and granted permission.