AKJ & Ors v Commissioner of Police for the Metroplis & Ors

The Investigatory Powers Tribunal has exclusive jurisdiction over Human Rights Act claims against the police concerning conduct falling within Part II of the Regulation of Investigatory Powers Act 2000. Covert sexual or intimate relationships are not categorically excluded from that regime. The decisive question is whether the alleged conduct amounts to degrading treatment, which cannot lawfully be authorised, or merely engages the qualified right to privacy under article 8.

The Tribunal has no jurisdiction over independent common-law or non-Human Rights Act statutory tort claims. Such claims are not abusive merely because related Human Rights Act claims must proceed in the Tribunal. However, the High Court may stay those claims pending the Tribunal’s determination.

Two groups of claimants alleged that undercover police officers had deceived them into intimate or sexual relationships while gathering intelligence. They brought claims under articles 3, 8 and 10 of the Convention, together with claims in deceit, misfeasance in public office, assault, negligence and statutory tort.

The police defendants applied to strike out or stay the proceedings. They argued that the Human Rights Act claims fell within the exclusive jurisdiction of the Investigatory Powers Tribunal, that the Tribunal could also determine the other claims, and that the common-law claims could not fairly be tried because of the police policy of neither confirming nor denying covert operations.

The central questions concerned the scope of Part II and section 65 of the Regulation of Investigatory Powers Act 2000, the Tribunal’s jurisdiction over non-Human Rights Act claims, and whether the High Court proceedings were abusive or should be stayed.

1. Human Rights Act claims. The Tribunal had jurisdiction over the claims against the Commissioner of Police for the Metropolis and the Chief Constable of South Wales Police. Conduct amounting to degrading treatment, whether contrary to the common law or article 3, could not be authorised under Part II of the Regulation of Investigatory Powers Act 2000. The principle of legality and the unqualified nature of article 3 prevented that result.
2. Conduct interfering only with privacy was capable in principle of authorisation. Article 8 was a qualified right, and section 29 expressly required necessity and proportionality. A sexual or intimate relationship was too broad and uncertain a category to be treated as necessarily degrading. Some such relationships might amount to degrading treatment; others might involve only privacy, or no interference with a fundamental right. Accordingly, the alleged relationships fell within “challengeable circumstances” for section 65 purposes unless and until the facts established degrading treatment.
3. The court declined to construe the Tribunal’s jurisdiction restrictively by reference to article 6. If necessary, the Tribunal could adapt its procedure to protect the claimants’ fair-trial rights. The fact that ACPO was also a defendant did not alter the jurisdictional position.
4. Common-law and statutory claims. The Tribunal had no jurisdiction over claims for damages in tort or under statutes other than the Human Rights Act. Section 65 distinguished proceedings and complaints, and a common-law claim was not a “complaint” within that section. Z (Algeria) v Secretary of State for the Home Department [2010] EWCA Civ 169 merely recorded a concession and did not establish a contrary principle.
5. Abuse and fair trial. The common-law claims had not been shown to be an abuse of process. The neither-confirm-nor-deny policy did not confer immunity from tort claims. At this stage there was no evidence establishing that the public interest in confidentiality outweighed the claimants’ right to pursue claims concerning grave alleged interference with fundamental rights. The applications to strike out were dismissed.
6. Stay. The interests of justice favoured the Tribunal proceedings being determined first. The High Court proceedings were therefore stayed pending determination of the Tribunal proceedings, or while the claimants continued to pursue their Human Rights Act claims there.