AJA & Ors v Commissioner of Police for the Metropolis

An intimate sexual relationship established or maintained by a covert human intelligence source is a “personal or other relationship” within section 26(8)(a) of the Regulation of Investigatory Powers Act 2000. The statutory safeguards of necessity and proportionality mean that the principle of legality does not require a narrower construction. Human-rights claims concerning such conduct fall within the Investigatory Powers Tribunal’s jurisdiction. Related common-law claims should not be stayed merely because the tribunal’s decision might assist. A stay requires justice between the parties and a real risk of injustice to the party seeking it, balanced against the claimant’s right to have a civil claim determined without delay. That threshold was not met.

Six appellants alleged that police undercover officers, using covert identities, established or maintained intimate relationships, including sexual relationships, to obtain intelligence. They claimed breaches of articles 3 and 8 of the European Convention of Human Rights, unlawful conduct under the Human Rights Act 1998, common-law torts and breaches of the Data Protection Act 1998.

The High Court held that the alleged conduct fell within Part II of RIPA and that the Investigatory Powers Tribunal had jurisdiction over the human-rights claims. It dismissed strike-out applications but stayed the High Court proceedings pending the tribunal proceedings. The central questions on appeal were whether Part II covered intimate sexual relationships and whether the stay was justified.

1. Disposition. The appeal on jurisdiction was dismissed. The appeal against the stay was allowed, and the stay of the High Court proceedings was lifted.
2. Jurisdiction. The phrase “personal or other relationship” in section 26(8)(a) of the Regulation of Investigatory Powers Act 2000 bears its ordinary meaning and includes an intimate sexual relationship. The court applied the principle of legality stated in R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115, R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2002] UKHL 21 and [2003] 1 AC 563, and Secretary of State for the Home Department v GG [2009] EWCA Civ 786 and [2010] QB 585. That principle did not require a narrow construction because RIPA was specifically designed to permit interference with fundamental rights subject to necessity and proportionality safeguards.
3. The statutory hierarchy of covert powers did not justify excluding sexual relationships. Intense, prolonged non-sexual relationships could also be highly intrusive. The absence of guidance in the Codes of Practice and the absence of specific legislative history did not alter the ordinary meaning of the provision. A coherent construction of RIPA, including its procedural provisions, required human-rights claims concerning undercover relationships to be dealt with in the tribunal. The court followed the approach in C v Police IPT/03/32/H and applied R (A) v Director of Establishments of Security Service [2009] UKSC 12 and [2010] 2 AC 1 on the tribunal’s exclusive jurisdiction.
4. Stay. The general power under CPR rule 3.1(2)(f) may be used only where justice between the parties requires a stay and the party seeking it demonstrates a real risk of injustice. The default position is that a party is entitled to have its civil claim decided without delay. The court must consider the interests and prejudice of both sides. The principle was applied from Panton v Financial Institutions Services Ltd [2003] LRC 768.
5. RIPA preserved the civil courts’ jurisdiction over common-law claims. Its provisions gave no priority to the tribunal proceedings. The tribunal’s judicial-review-equivalent jurisdiction was ill-suited to claims involving numerous factual issues concerning liability and damages. Its restrictive procedures, including the possible absence of disclosure, cross-examination and reasoned judgments, created a real risk that findings could not safely be relied on in the High Court, consistent with the principles discussed in Al Rawi v Secretary of State [2011] UKSC 34 and [2012] 1 AC 531.
6. The respondents had not shown a real risk of injustice if the High Court proceedings continued. That possibility, including any future public-interest-immunity issue, could be kept under review. The interests of justice therefore required that the appellants’ common-law claims proceed in the High Court.

• Court of Appeal (Civil Division): Dismissed the appeal concerning the Investigatory Powers Tribunal’s jurisdiction over the human-rights claims; allowed the appeal concerning the stay; lifted the stay.
• High Court, Queen’s Bench Division: Mr Justice Tugendhat held that the alleged conduct fell within Part II of the Regulation of Investigatory Powers Act 2000 and that the tribunal had jurisdiction over the human-rights claims. He dismissed the strike-out applications but stayed the High Court proceedings pending determination by the tribunal.