ON APPEAL FROM THE HIGH COURT, QUEEN'S BENCH DIVISION
MR JUSTICE TUGENDHAT
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MAURICE KAY
LADY JUSTICE SHARP
| A3/2013/0639 AJA
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COMMISSIONER OF POLICE FOR THE METROPOLIS
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|CHIEF CONSTABLE OF SOUTH WALES POLICE
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|COMMISSIONER OF POLICE FOR THE METROPOLIS
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|ASSOCIATION OF CHIEF POLICE OFFICERS
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Heather Williams QC and Alex Gask (instructed by Tuckers Solicitors) for the Appellants
Monica Carss-Frisk QC and David Pievsky (instructed by The Metropolitan Police Service Directorate of Legal Services and Association of Chief Police Officers Directorate of Legal Services) for the First and Third Respondents
Jeremy Johnson QC (instructed by South Wales and Gwent Police Joint Legal Services) for the Second Respondent
Phillippa Kaufmann QC and Charlotte Kilroy (instructed by Birnberg Pierce & Partners) for the Appellants
Monica Carss-Frisk QC and David Pievsky (instructed by the Commissioner of Police for the Metropolis Directorate of Legal Services) for the Respondents
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Master of the Rolls: this is the judgment of the court.
"Part II of the Bill covers the use of intrusive surveillance, directed surveillance and covert human intelligence sources. Those are not new powers, but the provisions in this part of the Bill will put their use on a statutory basis. Part II does not create any illegality in the use of Part II techniques, but it will ensure that the use of the powers is properly regulated. Where such actions are authorised properly under the provisions of the Bill, that will be an answer to any subsequent assertion based on article 8 of the European Convention that a person's privacy has been invaded without justification."
The relevant provisions
"(1) This Part applies to the following conduct –
(a) directed surveillance;
(b) intrusive surveillance; and
(c) the conduct and use of covert human intelligence sources.
(7) In this Part –
(a) references to the conduct of a covert human intelligence source are references to any conduct of such a source which falls within any of paragraphs (a) to (c) of subsection (8), or is incidental to anything falling within any of those paragraphs; and
(b) references to the use of a covert human intelligence source are references to inducing, asking or assisting a person to engage in the conduct of such a source, or to obtain information by means of the conduct of such a source.
(8) For the purposes of this Part a person is a covert human intelligence source if –
(a) he establishes or maintains a personal or other relationship with a person for the covert purpose of facilitating the doing of anything falling within paragraph (b) or (c);
(b) he covertly uses such a relationship to obtain information or to provide access to any information to another person; or
(c) he covertly discloses information obtained by the use of such a relationship, or as a consequence of the existence of such a relationship.
(9) For the purposes of this section –
(a) surveillance is covert if, and only if, it is carried out in a manner that is calculated to ensure that persons who are subject to the surveillance are unaware that it is or may be taking place;
(b) a purpose is covert, in relation to the establishment or maintenance of a personal or other relationship, if and only if the relationship is conducted in a manner that is calculated to ensure that one of the parties to the relationship is unaware of the purpose; and
(c) a relationship is used covertly, and information obtained as mentioned in subsection (8)(c) is disclosed covertly, if and only if it is used or, as the case may be, disclosed in a manner that is calculated to ensure that one of the parties to the relationship is unaware of the use or disclosure in question."
"(a) an authorisation under this Part confers an entitlement to engage in that conduct on the person whose conduct it is; and
(b) his conduct is in accordance with the authorisation."
"A person shall not grant an authorisation for the conduct or the use of a covert human intelligence source unless he believes—
(a) that the authorisation is necessary on grounds falling within subsection (3);
(b) that the authorised conduct or use is proportionate to what is sought to be achieved by that conduct or use."
"For the purposes of this section conduct takes place in challengeable circumstances if—
(a) it takes place with the authority, or purported authority, of anything falling within subsection (8); or
(b) the circumstances are such that (whether or not there is authority) it would not have been appropriate for the conduct to take place without it, or at least without proper consideration having been given to whether such authority should be sought."
Subsection (8)(c) provides that an authorisation under Part II of the Act falls within the subsection.
The first issue: does the IPT have jurisdiction over the human rights claims?
The appellants' case
"a relationship in which sexual acts are an integral and necessary aspect of that relationship.
The question of when an act is sexual can be identified by reference to the definition in section 78 of the Sexual Offences Act 2003 which states:
'For the purposes of this Part … penetration, touching or any other activity is sexual if a reasonable person would consider that –
(a) whatever its circumstances or any person's purpose in relation to it, it is because of its nature sexual;
(b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual'.
The acts encompass only intercourse and other sexual touching."
"the self-evident need to safeguard the secrecy and security of sensitive intelligence material, not least with regard to the intelligence services. It is to this end, and to protect the 'neither confirm nor deny' policy….that the Rules are as restrictive as they are regarding the closed nature of the IPT's hearings and the limited disclosure of information to the complainant (both before and after the IPT's determination)".
The principle of legality
"Subject to this section, an inspector may by notice in writing require a person (a) to deliver to him such documents as are in the person's possession or power and as (in the inspector's reasonable opinion) contain, or may contain, information relevant to (i) any tax liability to which the person is or may be subject, or (ii) the amount of any such liability…."
"construe general words in a statute, although literally capable of having some startling or unreasonable consequence, such as overriding fundamental human rights, as not having been intended to do so. An intention to override such rights must be expressly stated or appear by necessary implication".
He noted that the relevant statutory provision contained no express reference to legal professional privilege and the question therefore was whether its exclusion must necessarily be implied.
"The obligations that may be imposed by a control order made against an individual are any obligations that the Secretary of State or (as the case may be) the court considers necessary for purposes connected with preventing or restarting involvement by that individual in terrorism-related activity."
"The constraints on the [exercise of Parliamentary sovereignty] are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process."
"It does not refer to legal privilege or to any other kind of right or privilege or special relationship which would otherwise be infringed by the conduct that it refers to. But the generality of the phrase "for all purposes" is unqualified. The whole point of the system of authorisation that the statute lays down is to interfere with fundamental rights and to render this invasion of a person's private life unlawful. To achieve this result it must be able to meet any objections that may be raised on the ground of privilege. I would hold therefore that, provided the conditions in section 27(1) which render it lawful for all purposes are satisfied, intrusive surveillance of a detainee's consultation with his solicitor cannot be said to be unlawful because it interferes with common law legal privilege. It seems to me that the phrase "for all purposes" which section 27(1) uses is a clear indication that this was Parliament's intention."
"In my opinion that cannot be said to have been so in the case of RIPA. Far from being general and ambiguous, the very essence of its provisions was to enable fundamental privacy rights to be overridden to an extent that was no more than necessary under precise conditions that were sufficiently strict and carefully regulated."
The hierarchy and the other points made by Ms Kaufmann
Conclusion on the first issue
The second issue: was the judge wrong to stay the high court proceedings pending the outcome of the proceedings before the IPT?
"If there is a defence under s 27, then there will be no obstacle to the [first and second defendants] advancing their cases to that effect in the IPT. It is not for this court to speculate as to how the IPT would make known to the parties, and so to the High Court, what decision it had reached on the HRA claims in a manner which would assist the parties and the High Court in the subsequent advancement of the non-HRA claims. But the IPT must be given the opportunity to do what it considers to be just and appropriate. I decline to assume that the IPT will be unable to overcome perceived difficulties in circumstances where it has not been asked to do it. It seems to me that there is at least a possibility that a decision of the IPT will be of assistance in resolving difficult procedural issues that arise in cases such as Al- Rawi and the present cases. As to s 67(7), that corresponds to HRA s 8 under which no damages may be awarded by the High Court unless the court is satisfied that the award is necessary to afford just satisfaction."