Neutral Citation No:  NICA 66
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
STEPHENS LJ (delivering the judgment of the court)
Introduction, anonymity and reporting restriction
"If you want people to know what you actually said to us the last time it might not be in your interests."
"Counsel for the plaintiff did not rely on this tort in his skeleton argument and at hearing did not actively pursue it. He conceded that the plaintiff's claim was a claim for breach of his human rights rather than a claim of misfeasance in public office. In view of this concession, I do not find that there is evidence of a serious question to be tried in respect of this tort and therefore an injunction should not be granted on this ground."
Upon enquiry we were told that this paragraph was accurate in that the learned judge was informed that the facts were demonstrative of misfeasance in public office but that the appellant did not have to rely on it. We deprecate the use of an appeal process in order to challenge a decision of a judge on a basis that was not advanced to her. If, as here, that has occurred there may be consequences either as a factor to be taken into account in determining the appeal or in relation to costs.
The defendants to these proceedings
The form of the injunction sought by the appellant
"An injunction to restrain the defendants, their servants and agents from disclosing or causing to be disclosed, the personal information of the plaintiff to any third party and from harassing or causing the plaintiff to be harassed."
(a) An injunction restraining the defendants, their servants and agents from disclosing any personal information relating to the plaintiff which may suggest that he was/is an informer;
(b) An injunction restraining the defendants, their servants and agents from disclosing any personal information relating to the plaintiff which may endanger his life or safety;
(c) An injunction restraining the defendants, their servants and agents from disclosing any personal information relating to the plaintiff which is sensitive personal information and which is false and which the defendants have no interest in or duty to disclose.
"An injunction restraining the defendant, his servants and agents from disclosing, other than for lawful reasons to state agencies including within the defendant organisation, any information relating to the plaintiff concerning the provision by him of information to state authorities about criminal activities."
We consider that the refinement of the draft injunction in paragraph (a) of the appellant's skeleton argument is an appropriate use of the adversarial system. We emphasise that the initial draft before the learned judge was inappropriate and we are sorry to say that the judge did not receive from counsel as much careful assistance as she was entitled to expect. It is the duty of counsel to settle the draft order personally and to be scrupulous and meticulous in the presentation of the draft to the judge so as to be able to respond to the judge's concerns and to assist the judge as to the final form of the order. That obligation has even more emphasis where, as here, the original application was ex parte so that the court is assisted fairly in the absence of the defendant, see Memory Corpn plc v Sidhu  EWCA Civ 9,  1 WLR 1443.
(a) The two men (whom we shall refer to as the two police officers) believed that the appellant had a relationship with a number of individuals whom they named.
(b) The appellant does not deny that he had a relationship with the individuals named by the police officers.
(c) The police officers believed that as a result of that relationship the appellant would have information that would be of use in a detection or prevention of crime.
(d) The appellant does not deny that he had such information.
(e) The value of the information would have been apparent to the appellant not only because of its nature but also because of the indiscriminate amount of money which was being offered to him.
(f) The location at which this conversation occurred and the circumstances in which the two men were able to approach the appellant would have led the appellant to believe that the approach was an approach by officials.
(g) The fact that the appellant believed that the two men could have been officers in the security services could indicate that the matters about which he was being asked to inform were connected to the activities of terrorists or of persons who were connected to terrorists.
(a) Both the appellant's complaint to the PONI and this letter ought to have been disclosed by the appellant in accordance with his obligation to make full and frank disclosure on his ex parte application.
(b) The appellant's allegation to the PONI was that the two police officers threatened to plant false DNA evidence. That allegation was denied by the police officers and it does not appear in the appellant's sworn affidavit. We have taken into account the appellant's hearsay evidence to the PONI, that there was a threat to him that false DNA would be planted at a crime scene together with the hearsay evidence of the police officers denying that allegation. However, given the appellant's failure to swear to such an incident in his affidavit which grounds his application for an interlocutory injunction we do not consider that there is sufficient at this stage to establish an arguable case that he was threatened in 2013.
(c) The appellant in his affidavit does not deal with the account given by the two police officers to the office of the PONI. For instance as to whether the two police officers were introduced to him.
(d) In relation to the stops and searches of the appellant he does not in his affidavit give any indication of having been suspected of involvement in any criminal activity nor does he give any description of whether he has or continues to have any relationship with any of the individuals who were stopped and searched at the same time as him.
(e) Upon receipt of the letter from the office of the PONI the appellant would have known that the two men were police officers.
(a) The appellant knew or ought to have known from the PONI letter that the two men were police officers.
(b) The appellant would have known that it was highly likely that the same two police officers would have been interested in the same sort of information about the same sort of individuals as in 2013.
(c) Although this was not articulated it was probable that the police officers would pay the appellant for information that he had or could obtain from or about the named individuals.
(d) The appellant knew that the police considered it appropriate to carry out a degree of surveillance of him so that they knew where he was on at least two occasions.
Full and frank disclosure
(a) There is no information as to his age, approximately where he lives, his occupation, whether he does or does not have any criminal convictions and if so what convictions or whether he associates with or has a personal or other relationship with individuals whom he is aware have criminal convictions or whom he is aware are suspected by the police of being involved in criminal activity.
(b) The appellant knew that there had been a complaint to the PONI, he knew the conclusion of the investigation by the PONI, he knew that the two officers had been authorised and tasked to approach him and yet that was not revealed in his affidavit.
(c) The appellant states that in 2013 he was subject to an approach to provide information on individuals and that those individuals were named to him. No details were given by the appellant as to who those individuals were or as to whether and if so what personal or other relationship he had with them. For instance no information is given as to whether one or more of the named individuals was in the group of individuals that were stopped and searched at the same time as the appellant. No details are given as to why those individuals might be of interest to the police. No details are given as to what information was being sought by the two police officers. If those named individuals were known to the appellant in 2013 then no information is given as to whether they were still known to him in 2017.
The judge's decision in summary
(a) The approach to the appellant fell within Part II of the Regulation of Investigatory Powers Act 2000 ("RIPA") so that the Investigatory Powers Tribunal ("the IPT") had exclusive jurisdiction in relation to the appellant's proceedings for actions incompatible with Articles 2, 3 and 8 ECHR.
(b) As the IPT had exclusive jurisdiction the court had no power to grant injunctive relief in respect of the appellant's proceedings for actions incompatible with Articles 2, 3 or 8 ECHR. It would be wrong for the court to grant injunctive relief in circumstances where the IPT had no power to grant injunctive relief in proceedings for actions incompatible with Convention rights.
(c) The submission on behalf of the Chief Constable that all the matters complained of by the appellant fell within the exclusive jurisdiction of the Tribunal regardless as to whether they were proceedings for actions incompatible with Convention rights or whether they were proceedings based on other causes of actions, was incorrect. The court did not lack jurisdiction to deal with other torts which may arise out of the alleged activities of the defendant.
(d) There was no serious question to be tried in relation to the tort of assault as the appellant's claim relied entirely on the words used by the two men and according to Clerk and Lindsell on Torts 21st Edition at paragraph 15.13 threats per se do not constitute tortious assault.
(e) There was no serious question to be tried in relation to misfeasance in public office as counsel for the plaintiff did not rely on that tort in his skeleton argument and at hearing did not actively pursue it. Rather he conceded that the plaintiff's claim was a claim for breach of his human rights rather than a claim of misfeasance in a public office.
(f) There was no serious issue to be tried in relation to harassment under Article 5 of the Protection from Harassment (Northern Ireland) Order 1997 as there was no evidence of a course of conduct.
(g) In the exercise of her discretion she refused to grant an injunction on the basis that the claims in tort were weak; the real complaint that the plaintiff made lay within the jurisdiction of the IPT; the plaintiff was essentially seeking relief to stop the police officer approaching him to be a CHIS; injunctions should be capable of being enforced and the draft wording of the present injunction and the further amended draft which was provided to the court were so widely worded that they would not be capable of enforcement.
The Grounds of Appeal
(a) The appellant contends that the burden of establishing that the approach to the appellant was within Part II of RIPA rests on the Chief Constable and that on a consideration of the facts set out by the appellant and given the lack of any evidence on the part of the Chief Constable that burden had not been discharged so that the judge incorrectly concluded that the case fell within Part II of RIPA. Furthermore it is contended that this led the judge to incorrectly conclude that the IPT had exclusive jurisdiction for the appellant's proceedings for actions incompatible with Convention rights.
(b) In the alternative it is contended that if the case did fall within Part II of RIPA so that the IPT had exclusive jurisdiction for the appellant's proceedings for actions incompatible with Convention rights, then contrary to the finding of the learned judge the court must still retain jurisdiction to grant an injunction for threatened breaches of those rights given that the IPT cannot grant an injunction.
(c) Finally it is contended that a threat of the kind made to the appellant would amount to an assault, or misfeasance in public office, or harassment, or misuse of private information and that an interlocutory injunction ought to have been granted based on any of those torts.
Legal principles and discussion
(a) Whether the burden lies on the Chief Constable to establish that Part II applies.
(b) Irrespective of the burden of proof whether there was sufficient evidence to support the learned judge's conclusion that the approach to the appellant fell within Part II.
(c) Whether the court retains jurisdiction to grant an injunction to prevent threatened breaches of Convention rights even if the IPT is the only appropriate tribunal to hear and determine the appellant's proceedings for actions incompatible with those Convention rights.
"It is undoubtedly good law that where a statute creates a right and, in plain language, gives a specific remedy or appoints a specific tribunal for its enforcement, a party seeking to enforce a right must resort to that remedy or tribunal, and not to others."
In situations of that kind Mustill J went on to say that:
"it is immaterial whether the parties wish the court to try the action. It must disclaim jurisdiction since to continue with the action would be contrary to law. Still less can one party by unilateral act confer on the court a jurisdiction which Parliament has said it should not have."
We have not received full submissions in relation to this issue. We consider that the matter is not answered by reference to burdens of proof.
The other causes of action
(a) Misfeasance in public office
"First there is the case of targeted malice by a public officer, i.e. conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful."
The appellant contends that the police officer was a public officer, that he was exercising his powers as a public officer when he made the alleged threat and that there is a serious question to be tried as to the state of mind of the police officer which it is contended fell into either the first limb or the second limb.
(a) Several months have elapsed since the alleged threat was made. There is no evidence that the threat was ever carried out. There is no evidence of anything having been said to or done to the appellant in the intervening period by any third party indicating that they have reason to believe that he is or was an informer. An interlocutory injunction looks to the future between the date of this judgment and the date of trial. Its purpose is to restrain threatened breaches of the plaintiff's rights pending trial. We consider that any threatened breach in the circumstances of this case has now passed so that on the balance of probabilities no future threat exists.
(b) We were informed by counsel on behalf of the appellant that a complaint has been made to the PONI. The Police Code of Ethics is a comprehensive human rights document which draws upon the ECHR. The preamble declares that "policing is an honourable profession that plays an important part in the maintenance of a just and fair society. The people of Northern Ireland have the right to expect the Police Service to protect their human rights by safeguarding the rule of law and providing a professional Police Service." It goes on to declare that this "Code of Ethics is intended to lay down standards of conduct and practice for police officers and to make police officers aware of their rights and obligations under the Human Rights Act 1998 and the European Convention on Human Rights." The professional duty of police officers is stated to be obeying and upholding the law, protecting human dignity and upholding the human rights and fundamental freedoms of all persons as enshrined in the Human Rights Act 1998, the European Convention on Human Rights and other relevant international human rights instruments. Specifically in relation to privacy and confidentiality it states that "police officers shall gather, retain, use and disclose information or data in accordance with the right to respect for private and family life contained in Article 8 of the European Convention on Human Rights and shall comply with all relevant legislation and Police Service policy and procedure governing the gathering, retention, use and disclosure of information or data." The role of the PONI, which is totally independent of the Police Service, is to consider whether an officer's behaviour fell below the standards set out in the Police Code of Ethics. The current investigation by the PONI into the alleged threat made to the appellant has in our estimation a considerable impact on the question as to whether any future threat exists. We consider that the PONI investigation will have a serious chilling effect in relation to the potential for future threats of the type alleged by the appellant for which there can be no justification.
(b) Misuse of private information
"In the context of a dispute between individuals as opposed to a dispute between an individual and a public authority, a plaintiff's claim is not per se a claim for breach of a Convention right. It is tortious claim, that tort claim being sometimes called an action for breach of personal confidence, an action for breach of privacy or, in the nomenclature adopted by Sir Anthony Clarke MR in Murray v Big Pictures UK Limited  EWCA 446, an action for misuse of private information. As the Master of the Rolls also pointed out in Murray the values enshrined in Articles 8 and 10 of the Convention are now part of the action and should be treated as of general application and as being as much applicable to disputes between individuals as to disputes between individuals and public authorities."
On that basis the plaintiff's claim for misuse of private information, being against a public authority, would be a claim for breach of a Convention right and subject to the jurisdiction of the IPT.
"in the absence of any sound reasons of policy or principle to suggest otherwise, … misuse of private information should now be recognised as a tort for the purposes of service out the jurisdiction. This does not create a new cause of action. In our view, it simply gives the correct legal label to one that already exists. We are conscious of the fact that there may be broader implications from our conclusions, for example as to remedies, limitation and vicarious liability, but these were not the subject of submissions, and such points will need to be considered as and when they arise." (emphasis added).
The decision in Google Inc was specifically limited to whether misuse of private information was a tort for the purposes of service out the jurisdiction. This case therefore raises another aspect of the potential broader implications which were not decided in Google Inc. that is as to whether misuse of private information is a tort for the purposes of section 65 of RIPA or whether it falls within the category of proceedings for actions incompatible with Convention rights. That issue was not the subject of any submissions to us and the decision in King was not drawn to our attention. We consider that we should not give any preliminary view in relation to it in circumstances where it is not necessary for the determination of this appeal.
"There is no reason why something said should be incapable of causing an apprehension of immediate personal violence, e.g. a man accosting a woman in a dark alley saying, 'Come with me or I will stab you.'"
He, therefore, rejected the proposition that an assault can never be committed by words and in that respect we reject the conclusion of the learned judge that:
"As the plaintiff's claim relies entirely on the words used by the two men … there is no serious question to be tried that the defendants were guilty of the tort of assault …."
However, in Ireland Lord Steyn went on to illustrate that the fear has to be of the possibility of immediate personal violence. We consider that the learned judge was correct to determine that there was no serious question to be tried in relation to the tort of assault as there is no evidence of an apprehension of immediate personal violence. For instance the threat was not a threat of immediately disclosing to a terrorist organisation with the consequence of an immediate apprehension of personal violence.
The judgment of the Court of Appeal is made available in both hard copy and in electronic word format before judgment is given. The contents of the judgment are confidential to the Appellant's and to the Respondent's legal representatives but can also be disclosed to the Appellant and to the Chief Constable themselves. Those to whom the contents are disclosed must take all reasonable steps to preserve their confidentiality. No action is to be taken in response to the judgment before being formally pronounced unless this has been authorised by this Court. A breach of any of these obligations may be treated as a contempt of court.