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High Court of Justice in Northern Ireland Queen's Bench Division Decisions
You are here: BAILII >> Databases >> High Court of Justice in Northern Ireland Queen's Bench Division Decisions >> Maguire, Re Judicial Review [2010] NIQB 18 (16 February 2010)
URL: http://www.bailii.org/nie/cases/NIHC/QB/2010/18.html
Cite as: [2010] NIQB 18
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| Neutral Citation No. [2010] NIQB 18 | Ref: | TRE7756 |
| Judgment: approved by the Court for handing down | Delivered: | 16/2/2010 |
| (subject to editorial corrections)* |
TREACY J
Introduction
[1] By this judicial review the applicant seeks relief against the decision of the Northern Ireland Prison Service ("NIPS") not to provide an assurance to the applicant that his regular prison visits would not be subject to covert surveillance, a declaration that the Code of Practice made pursuant to Section 71 of the Regulation of Investigatory Powers Act 2000 Code ("RIPA") is incompatible with Article 8 ECHR and ultra vires and a declaration that Rule 67(8) of the Prison and Young Offenders Centre Rules (Northern Ireland) 1995 is incompatible with Article 8 and ultra vires. The sole respondent is the NIPS.
Background
[2] The applicant is Louis Maguire presently serving a life sentence, for murder, in Maghaberry Prison. His case is presently under appeal.
[3] On 2 September 2009 the applicant raised concerns about his prison visits being bugged. He was informed in correspondence that the prison service did not comment upon sensitive security matters and that it would neither confirm nor deny that this was the case. The correspondence went on to state that legal visits to all prisoners would not be subjected to covert surveillance.
[4] On 7 December 2009 the applicant through his solicitors wrote to the respondent asking for an assurance to be given that his ordinary visits would not be subject to any form of covert surveillance and advised that judicial review proceedings would be commenced in the absence of such an assurance.
[5] By letter dated 15 December 2009 the respondent said:
"… The Prison Service cannot give any assurance with regard to any covert investigations or operations that may or may not take place in the future at Maghaberry."
Grounds of Challenge
[6] The Order 53 Statement challenged the refusal of the assurance on the grounds, inter alia, of incompatibility with Article 8 ECHR; contended that to the extent that the scheme created by the RIPA code was incompatible with Article 8 it was ultra vires and that the code was in fact incompatible with Article 8 because it did not provide the minimum safeguards identified by the ECHR; that covert surveillance of the applicant's prison visits would not therefore be either in accordance with law or necessary in a democratic society to protect the interests specified in Article 8(2). The minimum safeguards which the Order 53 Statement particularised as not being provided for in the RIPA Code were:
• Lack of judicial or independent oversight;
• No adequate definition of the nature of the offences which may give rise to covert surveillance;
• No adequate definition of the categories of people liable to be subject to covert surveillance.
• No adequate procedure for examining, using and storing the data obtained.
• The precautions to be taken when communicating the data to other persons are not specified;
• The circumstances in which recordings may or must be destroyed are not specified.
• There is no outside limit on the duration of the covert surveillance;
• The Code is not sufficiently clear in its terms to give the Applicant an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to covert surveillance of his prison visits;
• The designated officers are conferred with what is effectively an untrammelled power to determine "necessity and proportionality" with no proper guidance and no clear test.
The Order 53 Statement also challenged the requirement in Rule 67(8) of the Prison Rules [that all visits must take place within the hearing of a prison officer] on the grounds of alleged incompatibility with Article 8.
[7] The case, as pleaded, therefore presents a fundamental challenge to the regime rather than to any covert surveillance conduct (to which the applicant's prison visits may or may not be subject).
The Issue
[8] The proposed respondent, relying principally on the decision of the Supreme Court in R(A) v B [2009] UKSC 12 and Section 65(2)(a) of the Regulation of Investigatory Powers Act 2000 ("RIPA") contends that the Investigatory Powers Tribunal ("IPT") set up under Section 65 of RIPA has exclusive jurisdiction.
[9] In the alternative it was contended, relying on Section 65(2)(b) and para.31 of the decision of the Court of Appeal in R(A) v B that the court should, as a matter of discretion, decline jurisdiction on the basis that the IPT is the appropriate forum.
The Legislative Context
[10] Section 65(1) – (7) of RIPA provides:
"The Tribunal
65.-(1) There shall, for the purpose of exercising the jurisdiction conferred on them by this section, be a tribunal consisting of such number of members as Her Majesty may by Letters Patent appoint.
(2) The jurisdiction of the Tribunal shall be—
(a) to be the only appropriate tribunal for the purposes of section 7 of the Human Rights Act 1998 in relation to any proceedings under subsection (1)(a) of that section (proceedings for actions incompatible with Convention rights) which fall within subsection (3) of this section;
(b) to consider and determine any complaints made to them which, in accordance with subsection (4), are complaints for which the Tribunal is the appropriate forum;
(c) …
(d) …
(3) Proceedings fall within this subsection if—
(a) they are proceedings against any of the intelligence services;
(b) they are proceedings against any other person in respect of any conduct, or proposed conduct, by or on behalf of any of those services;
(c) …
(d) they are proceedings relating to the taking place in any challengeable circumstances of any conduct falling within subsection (5).
(4) The Tribunal is the appropriate forum for any complaint if it is a complaint by a person who is aggrieved by any conduct falling within subsection (5) which he believes—
(a) to have taken place in relation to him, to any of his property, to any communications sent by or to him, or intended for him, or to his use of any postal service, telecommunications service or telecommunication system; and
(b) to have taken place in challengeable circumstances or to have been carried out by or on behalf of any of the intelligence services.
(5) Subject to subsection (6), conduct falls within this subsection if (whenever it occurred) it is—
(a) conduct by or on behalf of any of the intelligence services;
(b) conduct for or in connection with the interception of communications in the course of their transmission by means of a postal service or telecommunication system;
(c) conduct to which Chapter II of Part I applies;
(d) conduct to which Part II applies;
(e) …
(f) any entry on or interference with property or any interference with wireless telegraphy.
(6) For the purposes only of subsection (3), nothing mentioned in paragraph (d) or (f) of subsection (5) shall be treated as falling within that subsection unless it is conduct by or on behalf of a person holding any office, rank or position with—
(a) any of the intelligence services;
(b) any of Her Majesty's forces;
(c) any police force;
(d) the National Criminal Intelligence Service;
(e) the National Crime Squad; or
(f) the Commissioners of Customs and Excise;
and section 48(5) applies for the purposes of this subsection as it applies for the purposes of Part II.
(7) 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 such 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;
but conduct does not take place in challengeable circumstances to the extent that it is authorised by, or takes place with the permission of, a judicial authority.
…" [emphasis added]
[11] Section 7(1)(a) of the Human Rights Act provides –
"(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may —
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal,"
Do these proceedings fall within Section 65(3) thereby attracting the exclusive jurisdiction of the IPT under Section 65(2)(a)?
[12] The proposed respondent submits that the answer to this question is to be found in the recent decision of the Supreme Court. They also rely on the Ruling of Weatherup J in Heaney. The applicant contends that neither of these decisions lead to an affirmative answer to the question posed.
R(A)v B
[13] A was a former member of the security services who wanted to publish a book about his work. B, the security services director of establishments, refused to authorise publication of parts of the manuscript. A commenced judicial review proceedings to challenge that decision. Collins J had held that the administrative court had jurisdiction to hear the challenge. The Court of Appeal (Laws & Dyson LJJ, Rix LJ dissenting) reversed that decision holding that exclusive jurisdiction lay with the IPT. In that case A accepted that his legal challenge was properly characterised as proceedings under Section 7(1)(a) of HRA within the meaning of Section 65(2)(a) of RIPA and that they were proceedings against one of the intelligence services within the meaning of Section 65(3)(a). He had however submitted that the use of the IPT was optional at his discretion. The Supreme Court rejected this submission and unanimously upheld the decision of the Court of Appeal that the IPT had exclusive jurisdiction.
[14] Paras 42 and 43 of the judgment of Lord Brown (with whom the rest of the Court agreed) illuminate the underlying purpose of the tribunal regime established by RIPA:
"42. … the Act itself put a specialist regime in place to ensure that the IPT was properly equipped to deal with sensitive intelligence material. … the need to secure that information is not disclosed to an extent that is contrary to the public interest or prejudicial to national security.
43. The fact that this regime was so carefully designed to protect the public interest by the scheme that is set out in the statute is in itself a strong pointer to the conclusion that Parliament did not intend by section 65(2)(a) that the jurisdiction of the IPT in relation to claims of the kind that A seeks to bring in this case was to be optional. …"
[15] Mr Coll also placed reliance on the Ruling of Weatherup J in Re Heaney [Unreported Judgment – 8 October 2009]. In that case leave had been granted against the PSNI refusal of an assurance and/or an undertaking that the applicant's home was not the subject of intrusive surveillance and that his telephone communisations were not being intercepted.
[16] After leave had been granted the PSNI sought to have it set aside on the basis of the Court of Appeal decision in R(A) v B. It is clear from para.7 of Weatherup J's Ruling that had it not been for the fact that the decision in R(A) v B was pending before the Supreme Court he would have followed the decision in R(A) v B, declined jurisdiction and set aside the grant of leave.
[17] Mr MacDonald QC SC drew the Court's attention to the decision of the Divisional Court in Re C [2007] NIQB 101 and of the House of Lords[1] in the same case. Re C (like the present case) arose out of a refusal by the respective respondents to provide the assurances sought, inter alia, that legal consultations were not being monitored. The Divisional Court (Kerr LCJ, Campbell LJ and Girvan LJ) did not decline jurisdiction based on Section 65(2)(a) of RIPA nor did the House of Lords. In the present case Counsel for the proposed respondent accepted that if his argument about jurisdiction were correct it followed that those courts did not have jurisdiction. However, it is plain that the courts were alert to and did consider the provisions of Section 65. This is clear from para.15 of the judgment of Girvan LJ which stated:
"[15] Section 65 and 70 of RIPA 2000 create the Investigatory Powers Tribunal. It has exclusive jurisdiction for the purposes of section 7(1)(c) [sic] of the Human Rights Act 1998 in relation to certain types of conduct. A person who alleges that a public authority has unlawfully interfered with any of his Convention rights and who wishes to sue by means of Section 7 must do so via the Tribunal. However, it would appear that persons who are unaware that they have been subject to surveillance will not have an effective right to take the matter to the Tribunal." [Emphasis added]
[18] I infer from the foregoing that no point about jurisdiction was taken by anyone in Re C because it was considered by all that 65(2)(a) was inapplicable to the challenge at issue.
[19] The present proceedings do not in my view fall within Section 65(3) since they are not proceedings against the intelligence services or against any person in respect of conduct (or proposed conduct) by or on behalf of the intelligence services. Nor in my view are they proceedings relating to the taking place in any challengeable circumstances of any conduct falling within Section 65(5).
[20] The alternative procedure of the IPT would be wholly unsuitable (and unnecessary) for the determination of the issues at play in the present case. The underlying rationale and philosophy for the exclusive jurisdiction of the IPT is apparent from the portions of the judgment in R(A) v B referred to above - in short, the need to preserve the secrecy of sensitive intelligence material.
[21] The present case will not involve any examination of the justification for action or conduct. There is therefore no need for scrutiny of sensitive material or operational judgments. This case is a fundamental challenge to the refusal of an assurance and to the regime provided for in the RIPA codes rather than to any covert surveillance conduct (to which the applicant's prison visits may or may not be subject to).
[22] Moreover, the challenge to the prison rules is not, in any event, within the jurisdiction of the IPT and if that ground is arguable, which I hold it is, Section 65(2)(a) could not operate to bar judicial review proceedings in respect of that ground.
[23] I reject the alternative argument that the court should decline jurisdiction as a matter of discretion on the basis that the applicant had not exhausted the alternative and more appropriate (it was asserted) jurisdiction of the IPT.
[24] As in Re C the judicial review court is, in my view, the most appropriate forum. Moreover, proceedings before the IPT are subject to special procedures which are inapt in the context of the issues raised by the present challenges (see, for example, para.25 of the Supreme Court's judgment in R (A) v B). Furthermore by virtue of Section 67(8) of RIPA the decisions of the IPT are not subject to appeal or liable to be questioned in any court.
Conclusion
[25] Accordingly, the court concludes that it does have jurisdiction to hear the present judicial review and rejects the contention that the IPT had exclusive jurisdiction in respect of the challenged matters. The applicant has also satisfied me that he has an arguable case on all grounds.