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20 DEC 2013

AJA and others v (1) Commissioner of Police for the Metropolis (2) Chief Constable of South Wales Police (3) Association of Chief Police Officers [2013] EWCA Civ 1342; (2013) PLLR 125

Statutory interpretation - principle of legality - Covert surveillance - human intelligence sources - sexual relationships with undercover police officers - jurisdiction of Investigatory Powers Tribunal - meaning of ‘personal or other relationship' - inhuman and degrading treatment - right to respect for private and family life - Regulation of Investigatory Powers Act 2000, s 26(8)(a) - articles 3 and 8 ECHR. Power to stay proceedings - CPR r 3.1(2)(f)

The meaning of the words ‘personal or other relationship' in s 26(8)(a) of the Regulation of Investigatory Powers Act 2000 included sexual relationships. The Investigatory Powers Tribunal therefore had jurisdiction to consider the appellant's claims that their article 3 and 8 rights had been violated by undercover police officers having sexual relationships with them.

5 November 2013

Court of Appeal

Master of the Rolls, Maurice Kay and Sharp LJJ

(1)        The appellants had developed close, including sexual, relationships with undercover police officers acting on the authority of the respondents. The appellants alleged that the officers' conduct breached their human rights, and was tortious at common law. The judge found that the human rights claims fell within the jurisdiction of the Investigatory Powers Tribunal (IPT), and stayed the High Court's consideration of the common law claims pending the outcome of the IPT proceedings.

(2)        The appellants challenged the decision on the basis that: (1) the IPT's jurisdiction to consider human rights claims arising from ‘personal relationships' (as established under Part II of the Regulation of Investigatory Powers Act 2000 (RIPA)) did not extend to claims relating to the establishment and maintenance of sexual relationships; and (2) the judge's decision to stay the High Court proceedings was wrong.

(3)        The Court of Appeal held: (1) It was Parliament's clear intention that the IPT should have jurisdiction to consider the human rights claims. Part II of RIPA sets out the types of conduct over which the IPT will have jurisdiction including, at section 26(8)(a) the establishment and maintenance of ‘personal or other relationships'. As a matter of ordinary language, sexual relationship is an example of a relationship between persons, ie a personal relationship. The principle of legality was satisfied as the clear and accepted purpose of RIPA was to authorise the overriding of fundamental rights, including by the establishment of relationships, in prescribed circumstances. There was no basis for distinguishing between sexual and other relationships, and to do so produced some absurd outcomes which Parliament cannot be imputed to have intended. In some cases, non-sexual relationships can be more intense and intrusive than sexual ones, and it cannot have been the intention to give the IPT exclusive jurisdiction over all human rights claims arising from conduct specified in RIPA, except those relating to sexual relationships. (2) The judge's decision to stay High Court proceedings was plainly wrong. He had failed to apply the test set out in CPR r 3.1(2)(f) that the court's power to stay civil proceedings should only be used where justice between the parties requires it, and where the party seeking the stay can point to a real risk of injustice. The respondents had not discharged the burden on them to demonstrate a real risk of injustice if the high court proceedings ran alongside the IPT case, and certainly not one to outweigh appellants' rights to have their claims determined in open court. The judge did not explain, and the Court could not see, how the outcome of IPT proceedings could assist in the resolution of complex procedural issues in the High Court case. He must have meant that it would assist in resolving the substantive issues, but had given no explanation of why the IPT should take priority; there was no guarantee that the IPT procedures would satisfy the common law requirements of natural justice; and the IPT jurisdiction was ill-suited to resolution of liability and damages claims.

Appeal on the first issue dismissed. Appeal on the second issue allowed and stay on High Court proceedings lifted.

Key paragraphs

[1] - [4] - Introduction

[5] - [6] - The facts

[7] - [9] - RIPA: Introduction

[10] - [14] - RIPA: The relevant provisions

The first issue: does the IPT have jurisdiction over the human rights claim?

[15] - [19] - The appellant's case

[20] - [21] - Discussion

[22] - [36] - The principle of legality

[37] - [43] - Conclusion on the first issue

[44] - [65] - The second issue: was the judge wrong to stay the high court proceedings pending the outcome of the proceedings before the IPT?


[66] - The overall conclusion 

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