Author: Christopher Knight

Sex in the IPT

Posted on | by Christopher Knight

As with all the best headlines, this one is slightly misleading. Readers can scarcely fail to have noticed the coverage surrounding the major ongoing case regarding a former undercover (under-the-covers?) police officer, Mark Kennedy, who (together with others) infiltrated political and environmental activists over a period of years. Claims were commenced in the High Court, with part of the conduct complained of involving ensuing sexual relations between activists/their partners and undercover officers.

Earlier this year, AJA and others v Commissioner of Police for the Metropolis [2013] EWHC 32 (QB) saw part of the claims struck out. The Court held that the Investigatory Powers Tribunal had exclusive jurisdiction over the claims under the Human Rights Act 1998; it struck out these parts accordingly. It observed that conduct breaching Article 3 (inhuman and degrading treatment) – which included the claims relating to sexual activity – could not be authorised under RIPA, but conduct breaching Article 8 (privacy) could be authorised. Sexual activity with undercover officers did not necessarily engage Article 3.

Those parts of the claims which did not concern the Human Rights Act 1998 (actions at common law and for alleged breaches of statutory duties) were not exclusively within the Investigatory Powers Tribunal’s jurisdiction and were thus not struck out as an abuse of process, notwithstanding the police’s difficulties in presenting its case due to the ‘neither confirm nor deny’ approach to covert sources. However, the common law claims were stayed to await the IPT ruling.

The Court of Appeal has now reviewed the decision of Tugendhat J: [2013] EWCA Civ 1342 (Lord Dyson MR, Maurice Kay and Sharp LJJ). In essence, the Court of Appeal felt the High Court judgment was half right.

The Court rejected the submission that words “personal or other relationship” in s.26(8)(a) of the Regulation of Investigatory Powers Act 2000 formed part of the definition of the type of conduct which could be authorised under s.27 (lawful surveillance) and which, if it was carried out in challengeable circumstances, might be the subject of human rights proceedings before the IPT under s.65. In the plain and ordinary meaning of the words, it included intimate sexual relationships. While some readers of this blog may have had intimate sexual relationships which felt rather impersonal, in general terms it is difficult to see how the Court of Appeal could have concluded otherwise. Parliament clearly intended that human rights proceedings about the establishing of relationships by undercover police officers should only be determined by the IPT: R (A) v Director of Establishments of Security Service [2009] UKSC 12; [2010] 2 AC 1. The IPT had jurisdiction to determine the human rights claims made and was the appropriate forum for their determination.

However, the Court overturned the decision to stay the common law claims (for the torts of deceit, misfeasance in public office, assault and negligence). The legislation gave no priority to the IPT proceedings. It was difficult to see how a decision of the IPT would assist in resolving procedural issues which arose in the court proceedings. The IPT would only issue a summary of its determination and it was difficult to see how that would assist the court. The judge failed to apply the correct test and ask himself whether the respondents had shown that there was a real risk of prejudice to them if the court proceedings took precedence over the IPT proceedings. The respondents could not point to a real risk of injustice if the High Court proceedings continued and certainly not one which outweighed X’s and F’s rights to have their claims heard in open court. The stay was lifted.

The individuals who are understandably aggrieved and distressed by the actions of the undercover officers have a won a partial victory. Given the difficulties the police will have in defending the tort claims in open court without revealing material they do not wish to, the lifting of the stay may well end up being the much more important limb of the decision.

For those interested in the background to this case, see this review from the LRB of a recent book on the activities of officers like Mark Kennedy, which explains in some detail the effect undercover relationships have had on both ‘targets’ and officers.

Christopher Knight

Private Detectives, Estate Agents and Data Protection in the CJEU

Posted on | by Christopher Knight

Belgium has rules on who may act as an estate agent. Mr Englebert (disappointingly, not Humperdink) was such an estate agent. The professional regulatory body of estate agents (the IPI) applied to the local court to have Mr Englebert struck off the list of estate agents, based in large part on information obtained about him from private detectives. The allegations are not recorded in the judgment of the Court of Justice, but one suspects that the underlying facts are not causing Raymond Chandler to turn in his grave in disappointment at the plot he failed to think up.

The domestic court considered the suggestion that requiring the data subject to be informed of the detective’s investigation in advance or, where the data is collected from third parties, at the time of undertaking the recording of the data at issue, would make it impossible for a private detective to carry on his activities under Articles 10 and 11 of the Data Protection Directive (Directive 95/46/EC). The Tribunal de commerce de Charleroi was uncertain whether, by not extending to private detectives the exceptions to the obligation to inform which apply to other professional categories or bodies working in the public interest (under Article 13 of the Directive), the domestic law might give rise to unequal treatment contrary to the Constitution. The Constitutional Court referred to the CJEU the question whether Directive 95/46 is “to be interpreted as meaning that it leaves the Member States free to choose whether or not to provide for an exception to the immediate obligation to inform set out in Article 11(1) if this is necessary in order to protect the rights and freedoms of others”.

In Case C‑473/12 Institut professionnel des agents immobiliers v Englebert (judgement of 7 November 2013) the Third Chamber of the CJEU ruled that Article 13(1) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data must be interpreted as meaning that Member States have no obligation, but have the option, to transpose into their national law one or more of the exceptions which it lays down to the obligation to inform data subjects of the processing of their personal data.

The activity of a private detective acting for a professional body in order to investigate breaches of ethics of a regulated profession, in this case that of estate agent, is covered by the exception in Article 13(1)(d) of Directive 95/46 (which provides an exemption in terms for “the prevention, investigation, detection and prosecution of criminal offences, or of breaches of ethics for regulated professions”).

It is for the Member States to decide whether they consider it necessary to provide, in their legislation for the exception laid down in Article 13(1)(d) of Directive 95/46 in favour of professional bodies such as IPI, acting directly or with the help of private detectives. It is open to them to take the view that those professional bodies and the private detectives acting for them have sufficient means, notwithstanding the application of Articles 10 and 11 of that directive, of detecting the breaches of ethics at issue, so that it is not necessary for that exception to be implemented in order for those bodies to be able to carry out their duty of ensuring compliance with the rules (see at [48]).

The CJEU also confirmed that the rules on access to a regulated profession form part of the rules of professional ethics. It follows that investigations concerning the acts of persons who breach those rules by passing themselves off as estate agents are covered by the exception in Article 13(1)(d) of Directive 95/46 (see at [50]).

The CJEU did not itself answer whether it amounted to unequal treatment for Belgian law not to have applied the Article 13 exemptions to private detectives. The effect of the judgment was that Belgian was entitled – although not obliged – to apply the exemption from the duty to inform under Article 11 to private detectives if it chose to do so.

Christopher Knight

Kennedy in the Supreme Court: News Flash

Posted on | by Christopher Knight

At the close of the first day’s oral argument in Kennedy v The Charity Commission, the Supreme Court indicated that it would be dismissing the first ground of appeal, i.e. on the domestic construction of section 32(2) of FOIA. Reasons for this decision will be given at a later date, but the effect will be that the construction preferred by the Court of Appeal in the first Kennedy appeal ([2011] EWCA Civ 367; [2011] 2 Info LR 152) will stand and that information falling within the scope of section 32(2) does not cease to be absolutely exempt upon the conclusion of the inquiry or arbitration.

The hearing continues on the application, or otherwise, of Article 10 ECHR.

Public Authorities under the EIR – Fishing for an Answer from the AG

Posted on | by Christopher Knight

Panopticon is fairly sure that it can imagine the breakfast table dialogue in most right-thinking households this morning. Namely:

“Who owes obligations under the Environmental Information Regulations 2004? Public authorities: regulation 2.

Who is a public authority? Erm, well, not water companies: Smartsource v IC and a Group of 19 additional water companies [2010] UKUT 415 (AAC).

Are we sure? No and it has been necessary to refer the question to the Court of Justice of the EU to find out: Fish Legal v IC [2012] UKUT 177 (AAC) (again about water companies).

What have the CJEU got to do with the price of fish (legal)? Because the EIR implements Directive 2003/4/EC and so the correct interpretation is a matter on which definitive guidance can be sought from Luxembourg.

And what does the CJEU think? We don’t know yet, but we are a bit closer after Advocate General Villalon delivered the AG’s Opinion in the case yesterday: see Case C-279/12 Fish Legal v Information Commissioner, Opinion of 5 September 2013.

So what does the AG say? The test is posed along the following lines. It is for the national court to establish whether the water companies concerned may impose on individuals obligations for which they did not require the consent of those individuals, with the result that the companies concerned were in a position substantially equivalent to that of the administrative authorities. An individual was under the control of a body if his actions were subject to a degree of control exercised by that body or person which prevented him from acting with real autonomy in private affairs, thereby reducing him to the status of an instrument of the will of the State. Bodies or persons who also performed other, completely separate, non-public activities were not under an obligation to provide the information which they obtained in relation to those activities. [This sounds a bit like hybrid public authorities under s.6 of the Human Rights Act 1998, which has caused no difficulties in application at all. Ahem.] If in doubt, they should have to disclose the information.

And will the CJEU adopt this test? Wait and see. But usually the AG’s Opinion forms a key part of the Court’s analysis. So it is a good pointer, even if not the definitive answer.

And will the judgment, when it comes, tell us whether privatised water companies are public authorities? Probably not. That will almost certainly be left to the Upper Tribunal to decide in the light of the CJEU’s Delphic pronouncements.”

Doubtless there will be plenty more litigation to come, not to mention the cases stayed pending Fish Legal, and Panopticon will bring you the CJEU judgment when it appears.

11KBW’s Anya Proops appeared for the Commissioner in the CJEU, and Rachel Kamm did the same before the Upper Tribunal.

Christopher Knight

A Mixed Week for Prince Charles

Posted on | by Christopher Knight

Prince Charles has had an interesting week. In an announcement eagerly awaited by the massed ranks of the world’s media, with live coverage continuing interminably on all news channels, a small piece of paper was placed on a gilded easel which informed the impatient public that on 25 July 2013 Lord Judge CJ was delivered of permission to appeal against the Divisional Court’s judgment in support of the veto over release of the Prince of Wales’ correspondence with Ministers. The Court of Appeal will accordingly hear the appeal in R (Evans) v HM Attorney General (see Panopticon posts ad nauseam) in due course.

Oh, and apparently there was something about a baby this week. This has no direct implications for information law and so will be of no interest to readers of this blog.

Christopher Knight

Judicial Review of Prince Charles Correspondence Veto Fails

Posted on | by Christopher Knight

A three judge Divisional Court comprised of Lord Judge CJ, Davis LJ and Globe J has refused the application of a Guardian journalist to judicially review the exercise by the Attorney General of the right of veto under section 53 of the Freedom of Information Act 2000.

The background to R (Evans) v HM Attorney General [2013] EWHC 1960 (Admin) is the decision of the Upper Tribunal ([2012] UKUT 313 (AAC); [2012] Info LR 352) that correspondence between the Prince of Wales and various Government departments was not exempt from disclosure under freedom of information legislation. Following the Upper Tribunal decision the Attorney General issued a veto under section 53, effectively overriding the decision of the Upper Tribunal.

This case is the first time a section 53 veto has been judicially reviewed.

Jonathan Swift QC and Julian Milford appeared for the Attorney General. Timothy Pitt-Payne QC appeared for the Information Commissioner as an interested party.

Further analysis will doubtless follow.

Christopher Knight