May we have our emails back?

July 26th, 2013 by Daniel Stilitz QC

In Fairstar Heavy Transport NV v (1) Philip Jeffrey Adkins (2) Claranet Ltd [2013] EWCA Civ 886 the Court of Appeal has considered what right a company has to obtain work-related emails held by its former CEO on his personal computer.

The facts were unusual, which may be why the question proved more difficult to answer than might have been expected.  The CEO had been engaged by the claimant through his own company, and so was a consultant rather than an employee.  Following the termination of his employment, he refused (for reasons which are not clear) to comply with the company’s request for copies of all the work-related emails held on his own computer.  The company accordingly applied for an order for inspection of the content of the relevant emails.  Significantly, there was no claim by the company that the contents of the emails were confidential or amounted to trade secrets.

At first instance, the matter proceeded by way of an agreed issue, namely: did the company have “an enforceable proprietary claim to the content of the emails”.  That being the issue before him, Edwards-Stuart J at first instance concluded that the content of the emails to which the company claimed a proprietary right was “information”; that according to the authorities there can be no property in mere information; and that the company therefore did not have the proprietary right on which it  based its claim.

Mummery LJ (giving the only substantive judgment in the Court of Appeal) decided that the parties had asked the court to answer the wrong question.  For Mummery LJ, the key point was that Mr Adkins had, in his CEO role, been an agent of Fairstar.  He cited the long line of authority illustrating the rule that a principal or employer is entitled to delivery up of original documents retained or removed by an agent or employee relating to transactions undertaken on the principal’s behalf.  Although emails are electronic documents, they are documents nonetheless, and the same rule should apply to them.

The appeal was therefore allowed, with Mummery LJ deprecating the arid debate below as to the whether an email contained only “information” and as to whether “information” can ever be “property”.  He specifically declined, however, to endorse the proposition that there can never be property in information: “Some kinds of information, such as non-patentable know-how, are more akin to property in their specificity and exclusivity than, say, personal information about private life”.

The point would probably have been much more straightforward Mr Adkins been an employee, since most contracts of employment and IT policies state expressly that all work-related emails belong to the employer.

The question remains open, however, as to whether non-confidential “information”, which does not amount to intellectual property, can ever be proprietary in nature.  Mummery LJ seemed to think that, depending on its nature and quality, it might.

Daniel Stilitz QC

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Construction industry disputes

July 26th, 2013 by James Goudie QC

The balance of public interest was “very strongly” in favour of maintaining the confidentiality of documents in order to “protect the course of justice” both in Jackson v Info Commissioner, EA 2012/0263, FTT Decision on 19 July 2013, and in “many other such disputes” said Judge Hughes.  The value of the disclosure of the material was limited.  The adverse impact of disclosure on dispute resolution was substantial.  Judge Hughes concluded: “If there were to be change in the arrangements underpinning construction dispute resolution then this should be explored through a careful process of public debate and consultation leading to an amendment of the statutory framework.”

Cambridgeshire County Council (“the Council”) had entered into a major construction contract with BAM Nuttall for the construction of a guided busway extending 16 miles from Huntingdon to Trumpington.  There have been disputes between the parties to the contract over delays and cost-overruns which have attracted public concern.  In July 2011 the Council launched proceedings in the Technology and Construction Court (“the TCC”) against BAM Nuttall.  The proceedings continue.

Dr Jackson submitted an information request to the Council.  The Council responded.  Further, the Council advised that an application to the TCC had been made.  The Council resisted the request relying on Regulations 12(5)(b) and (f) and 13(1) of the Environmental Information Regulations.

Dr Jackson complained to the Information Commissioner.  The Commissioner upheld the Council’s position, relying on Regulation 12(5), adverse effect on the course of justice.

The FTT was satisfied that this exemption was engaged.  There was a substantial dispute between the Council and BAM Nuttall which was before the Court.  It had been preceded by adjudications held within a scheme which provided for confidentiality and where the statutory framework underpinning the scheme recognised the value of confidentiality.  The ability of parties to communicate on a without prejudice basis underlined the point that parties do deal in a candid way within the adjudication process.  The FTT was satisfied on the evidence that in this specific case there would be an adverse effect on the current litigation if there was disclosure.

Moreover, there was a further more general adverse effect that a decision would call into question the effectiveness of the ADR arrangements for construction disputes, which very often involve a public sector purchaser.  The lack of confidentiality of the ADR stages of such disputes would make the resolution harder to achieve and impact adversely on subsequent litigation, and so on the course of justice.

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Anonymity: publication and open justice

July 11th, 2013 by Robin Hopkins

The tension between transparency and individual privacy is part of what makes information rights such a fascinating and important area. When it comes to high-public interest issues involving particular individuals, prevailing wisdom has tended to be something like this: say as much as possible on an open basis, but redact and anonymise so as to protect the identity of the individuals involved. Increasingly, however, transparency is outmuscling privacy. See for example my post about the Tribunal’s order of disclosure, in the FOIA context, of the details of the compensation package of a Chief Executive of an NHS Trust (the case of Dicker v IC (EA/2012/0250).

The recent Care Quality Commission debate is the highest-profile recent illustration: the health regulator published a consultant’s report into failings regarding the deaths of babies at Furness General Hospital, but withheld the names of the individuals being criticised (including for alleged ‘cover-ups’), relying on the Data Protection Act 1998. The anonymisation was not endorsed by the Information Commissioner, and attracted widespread criticism in media and political circles. Transparency pressures held sway.

In a similar vein, the BBC has come under great pressure over the past week – particularly from Parliament’s Public Accounts Committee – to reveal the names of approximately 150 departing senior managers who received pay-offs averaging £164,000 in the past three years. As the Telegraph reports, the Committee is threatening to use parliamentary privilege to publish those names. The BBC admits that it “got things wrong” by overpaying in many cases (as confirmed by the National Audit Office), but is concerned to protect the DPA and privacy rights of the affected individuals, as well as to safeguard its own independence. The Committee says the public interest in transparency is compelling; Lord Patten, chair of the BBC Trust, says there will be “one hell of an argument” about this.

Such arguments become all the more thorny in the context of open justice disputes, of which there have been a number in recent weeks.

In the matter of Global Torch Ltd/Apex Global Management Ltd (The Guardian, The Financial Times and others intervening) [2013] EWCA Civ 819 involved competing petitions of unfair prejudice alleging misconduct in the affairs of a particular company. Two Saudi Arabian princes and one of their private advisers applied to have the interlocutory hearings held in private under CPR rule 39.2(3). The Court of Appeal agreed with the judge who dismissed those applications. It rejected the contention that the judge had elevated open justice above Article 8 ECHR rights as a matter of law. Rather, he noted that some general presumptions were valid (for example, open justice is likely to trump reputational damage) and applied those in the factual context of this case. Maurice Kay LJ said  (paragraph 34) that there was sometimes a “need for a degree of protection so as to avoid the full application of the open justice principle exposing a victim to the very detriment which his cause of action is designed to prevent… If such an approach were to be extended to a case such as the present one, it could equally be applied to countless commercial and other cases in which allegations of serious misconduct are made. That would result in a significant erosion of the open justice principle. It cannot be justified where adequate protection exists in the form of vindication of the innocent through the judicial process to trial”.

Open justice is of course fundamental not only to freedom of expression, but is also the default setting for fair trials. This is illustrated in the regulatory/disciplinary context by Miller v General Medical Council [2013] EWHC 1934 (Admin). The case involved a challenge to a decision by a Fitness to Practise Panel of the Council’s Medical Practitioners Tribunal Service that a fitness to practise hearing should take place in private because it considered that the complainant, a former patient of the claimant, was otherwise unlikely to give evidence. HHJ Pelling quashed the decision; there was insufficient evidence for the Panel’s conclusion about witness participation, and in any event the Panel “fell into error at the outset by not reminding itself sufficiently strongly or at all that the clear default position under Article 6 is that the hearing should be in public. It failed to remind itself that Article 6 creates or declares rights that are the rights of the Claimant and that it was for the GMC to prove both the need for any derogation from those rights and for a need to derogate to the extent claimed” (paragraph 20).

Robin Hopkins

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The Prince Charles veto: JR fails due to availability of JR

July 10th, 2013 by Robin Hopkins

As Chris Knight reported this morning, judgment has been handed down in R (Evans) v HM Attorney General [2013] EWHC 1960 (Admin). The Upper Tribunal had ordered disclosure of certain correspondence between Prince Charles and government ministers (termed ‘advocacy correspondence’). The government – the Attorney General specifically – exercised the power of veto under section 53 of FOIA. The requester, Guardian journalist Rob Evans, brought judicial review proceedings. The Administrative Court dismissed his claim.

It did so despite “troublesome concerns” about the section 53, which it considered to be a “remarkable provision”.

For example, the Lord Chief Justice said: “The possibility that a minister of the Crown may lawfully override the decision of a superior court of record involves what appears to be a constitutional aberration” (paragraph 2); “It is an understatement to describe the situation as unusual. Indeed the researches of counsel suggest that it is a unique situation and that similar statutory arrangements cannot be found elsewhere in this jurisdiction” (paragraph 9); “It is not quite a pernicious “Henry VIII clause”, which enables a minister to override statute but, unconstrained, it would have the same damaging effect on the rule of law” (paragraph 10).

Nonetheless, a close examination of the wording and features of section 53 satisfied the court that it was not flawed on constitutional grounds. Parliament was mindful of what it was doing in enacting section 53. There are strict time limits and limits on who can issue a section 53 certificate; it must be laid before Parliament with reasons, it must be made on “reasonable grounds” and “the jurisdiction of the courts does not even purport to be ousted” (paragraph 81 in the judgment of Davis LJ). In effect, Parliament chose to build section 53 into a FOIA as an express check and balance on disclosure.

The Lord Chief Justice summed up the court’s assessment of section 53: “These provide that the ministerial override will be ineffective unless reasonable grounds for its exercise are identified. These reasons must be laid before Parliament for scrutiny and, if appropriate, parliamentary action. Making the reasons public in this way ensures that they are also immediately available for press and public scrutiny and, if appropriate, critical comment. More important, perhaps, is that the override decision of the minister is not final. The exercise of the override is itself subject to judicial scrutiny” (paragraph 13).

The court considered the meaning of “on reasonable grounds”, the key language from section 53. What standard did this connote? Davis LJ said “reasonable” meant just that: it did not needed to be glossed either by reference to Wednesbury standards, nor by reference to any higher standard.

The court was persuaded that the statement of the Attorney General’s reasons in this case did indeed demonstrate “reasonable grounds” for the decision. The Attorney General had guided himself by the government’s published policy which states that the veto will only be used in exceptional cases. He had considered and engaged with the Upper Tribunal’s decision. He addressed both FOIA and the EIR. He gave his view that great weight should be attributed to the importance of the convention of preparation for kingship, the need to avoid a chilling effect on related communications, the preservation of confidences and the need to avoid damage to the perception of political neutrality. The Commissioner himself had agreed with those factors and conclusions in his decision notice.

In the court’s view, the Attorney General’s reasons ‘made sense’. There can be “cogent” arguments for and against disclosure (as indeed the Upper Tribunal acknowledged were present in this case), and FOIA/EIR public interest assessments are not so much matters of fact or law (or a mix of both), but are exercises in evaluation. In that light, if it was said that the Attorney General could not simply prefer his own opinion to that of the Upper Tribunal, the rhetorical answer was “why not?”. Moreover, he was entitled to address the correspondence as a whole, rather than on a document-by-document basis.

Mr Evans had also argued that insofar as the veto related to environmental information, it was incompatible with the “access to justice” provisions of the Aarhus Convention and of the Environmental Information Directive. The court was not persuaded: the availability of judicial review sufficed for those purposes.

The Guardian has announced its intention to appeal.

Postscript:

It should also be remembered that this is not the only strand of the Rob Evans/Prince of Wales letters litigation. As Panopticon reported earlier this year, the Upper Tribunal has separately ordered disclosure of a schedule describing the withheld information. That decision is also subject to appeal: it has not (yet?) been vetoed. The saga continues.

Robin Hopkins

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Prism and Tempora: Privacy International commences legal action

July 10th, 2013 by Robin Hopkins

Panopticon has reported in recent weeks that, following the Edward Snowden/Prism disclosures, Liberty has brought legal proceedings against the UK’s security bodies. This week, Privacy International has announced that it too is bringing a claim in the Investigatory Powers Tribunal – concerning both the Prism and Tempora programmes. It summarises its claim in these terms:

“Firstly, for the failure to have a publicly accessible legal framework in which communications data of those located in the UK is accessed after obtained and passed on by the US National Security Agency through the Prism programme.  Secondly, for the indiscriminate interception and storing of huge amounts of data via tapping undersea fibre optic cables through the Tempora programme.”

Legal complaints on Prism-related transfers have been made elsewhere on data protection grounds also. A group of students who are members of a group called Europe vs. Facebook have filed complaints to the data protection authorities in Ireland (against Facebook and Apple), Luxembourg (against Skype and Microsoft) and Germany (against Yahoo).

European authorities have expressed concerns on these issues in their own right. For example, the Vice President of the European Commission, Viviane Reding, has written to the British Foreign Secretary, William Hague, about the Tempora programme, and has directed similar concerns at the US (including in a piece in the New York Times). The European Parliament has also announced that a panel of its Committee on Civil Liberties, Justice and Home Affairs will be convened to investigate the Prism-related surveillance of EU citizens. It says the panel will report by the end of 2013.

In terms of push-back within the US, it has been reported that Texas has introduced a bill strengthening the requirements for warrants to be obtained before any emails (as opposed to merely unread ones) can be disclosed to state and local law enforcement agencies.

Further complaints, litigation and potential legal challenges will doubtless arise concerning Prism, Tempora and the like.

Robin Hopkins

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Yet more on Article 10 ECHR and FOIA

July 3rd, 2013 by Robin Hopkins

The question of whether the right to freedom of expression conferred by Article 10 of the European Convention on Human Rights has a bearing on the Freedom of Information Act 2000 (particularly as regards absolute exemptions) is an interesting and important one. The Supreme Court will address it later this year in the Kennedy litigation.

In the meantime, there is free expression aplenty on this issue within the Panopticon fold. Joseph Barrett’s post of earlier today is not the only example; Christopher Knight’s recent piece in Public Law is a must-read. The reference is: CJS Knight, ‘Article 10 and a Right of Access to Information’ [2013] PL 468.

Robin Hopkins

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Article 10 and a human right to access information (Yes, again…sigh)

July 3rd, 2013 by Joe Barrett

Article 10 of the European Convention on Human Rights (“the ECHR”) does confer a right of access to information held by public bodies.

So, at least, says the Second Section of the European Court of Human Rights at §§20 and 24 of its judgment in Youth Initiative for Human Rights v Serbia, Application no 48135, 25 June 2013. The Second Section cites the now well-known chamber level judgments of Társaság and Kenedi for this proposition, at the same time entirely ducking the task of explaining or justifying why or how its decision to create this new ‘human right’ is consistent or reconcilable with the Grand Chamber’s prior judgments in Leander and Roche (both of which rejected the submission that Article 10 conferred any such right).

As avid readers of this blog will be aware, this issue has already been the subject of extensive domestic litigation in the UK. While Lord Brown may have thought he gave the argument that Article 10 confers a right of access to documents its quietus in Sugar v BBC, the willingness of the Second Section to flout two Grand Chamber decisions (and, indeed, not even to cite them when doing so) means that the forthcoming Supreme Court hearing in Kennedy v Charity Commrs (in which a smorgasbord of 11KBW members will be appearing) should make for interesting viewing.

One might have thought (and even hoped) that the Strasbourg Court would have learned some lessons about the dangers of merrily ‘discovering’ new ‘human rights’ while ignoring, and refusing to grapple with, inconvenient prior Grand Chamber decisions from the MT and Greens v UK,  Frodl v Austria, Hirst v UK debacle. Apparently not.

The judgment also includes a rather trenchant joint concurring opinion from Judges Sajo and Vucinic, in which those legal luminaries effectively say that they think the Grand Chamber decision in Leander is old hat, at least in so far as it concerns this point.

This view, so it is said by the jointly concurring judges, is supported by the fact that another Grand Chamber judgment (which itself did not have much to say about any of these points), Gillberg v Sweden, did not quote the passage from Leander where the Grand Chamber rejected the submission that Article 10 gives a right to access information. Suffice to say that the jointly concurring judges’ further reasoning in support of their position is of a similar calibre.

What is clear from the first sentence of the joint concurring opinion is that Judges Sajo and Vucinic both think that they are justified in inventing this new ‘human right’, and in the process setting the Strasbourg Court up as the pan-European final appellate court for freedom of information matters, by the need to impose greater transparency on former totalitarian ECHR signatory States.

Joe Barrett

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Blair, Bush, Iraq, oil: two new Upper Tribunal decisions

July 2nd, 2013 by Rachel Kamm

The Upper Tribunal has handed down two decisions on Iraq and section 27 FOIA, which raise some interesting procedural points – FCO v Information Commissioner and Plowden GIA/2474/2012 and Cabinet Office and Information Commissioner v Muttitt GIA/0957/2012.

In Plowden, the disputed information was a letter which was relevant to a telephone call on 12 March 2003 between Tony Blair and George Bush during which it was said that they had agreed to say that it was the French who had prevented them securing a UN resolution. The Information Commissioner had ordered the FCO to disclose the information provided by Mr Blair to Mr Bush, but not also the information provided by Mr Bush to Mr Blair. The Tribunal broadly agreed with the Information Commissioner, deciding the appeal under sections 27(1) (international relations) and 35(1)(b) (formulation of Government policy) of the Freedom of Information Act 2000. The Upper Tribunal first considered two preliminary matters, which are of general importance:

  1. Closed hearings. Judge Jacobs found that he could have set aside the Tribunal’s decision on ground that evidence had been given in closed session which could have been given in open session. He emphasised that as much evidence as possible should be given in open session and that, after evidence has been given in closed session, the other party should be told of any evidence that could properly be disclosed (paragraph 10).
  2. Respect for the Tribunal’s expertise. The Upper Tribunal generally will be reluctant to interfere with the (specialist fact-finding) First-tier Tribunal’s assessment of the public interest (paragraph 11). However, less respect will be due where the Tribunal does not have relevant specialist knowledge, for example in relation to the diplomatic consequences of disclosure (paragraph 12).

Having dealt with those preliminary issues, Judge Jacobs went on to set aside the First-tier Tribunal’s decision. It had failed to take account of the benefits of disclosure when assessing the public interest. It had also erred in considering the information line by line, instead of as a package; it was unrealistic to isolate one side of a conversation from the other. The appeal was remitted to the First-tier Tribunal for rehearing. To comply with Article 6 ECHR, that rehearing will be a full reconsideration of the issues which were before the Information Commissioner and it will not be limited to arguments raised by the appellant (paragraph 18).

Judge Jacobs had considered section 27 (international relations) a month earlier, in the Muttitt case. Again, this raised a preliminary issue of general procedural importance. Judge Jacobs found that the parties were not entitled to rely on the reasons given by the First-tier Tribunal for refusing permission to appeal (paragraph 4). These did not supplement the original reasons given by the Tribunal on determining the appeal, which was the decision under challenge. Turning to the substantive issues in the appeal, the disputed documents related to a vist by Mr Blair to Iraq in May 2006. Judge Jacobs found that the Tribunal had erred in law when ordering disclosure, in that it had failed to take into account the nature of the information (in contrast to its content). Reading the First-tier Tribunanl’s reasons as a whole, either it had failed to take account of the circumstances in which the documents came into existence or it had failed to give adequate reasons for its analysis of the information in light of those circumstances.  Judge Jacobs set aside the decision and remitted it for a rehearing of all of the issues raised by the appeal.

In Plowden, Julian Milford of 11KBW was led by James Eadie QC and represented the FCO, with Robin Hopkins of 11KBW representing the Information Commissioner.  In Muttitt, Julian Milford represented the Cabinet Office, Robin Hopkins represented Mr Muttitt and Ben Hooper of 11KBW prepared a written submission on behalf of the Information Commissioner.

Rachel Kamm, 11KBW

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Google and data protection: no such thing as the ‘right to be forgotten’

June 28th, 2013 by Robin Hopkins

Chris Knight has blogged recently about enforcement action against Google by European Data Protection authorities (but not yet the UK’s ICO). I blogged last month about a German case (BGH, VI ZR 269/12 of 14th May 2013) concerning Google’s ‘autocomplete’ function, and earlier this year about the Google Spain case (Case C‑131/12). The latter arises out of complaints made to that authority by a number of Spanish citizens whose names, when Googled, generated results linking them to allegedly false, inaccurate or out-of-date information (contrary to the data protection principles) – for example an old story mentioning a surgeon’s being charged with criminal negligence, without mentioning that he had been acquitted. The Spanish authority ordered Google to remove the offending entries. Google challenged this order, arguing that it was for the authors or publishers of those websites to remedy such matters. The case was referred to the CJEU by the Spanish courts.

Advocate General Jääskinen this week issued his opinion in this case.

The first point concerns territorial jurisdiction. Google claims that no processing of personal data relating to its search engine takes place in Spain. Google Spain acts merely as commercial representative of Google for its advertising functions. In this capacity it has taken responsibility for the processing of personal data relating to its Spanish advertising customers. The Advocate General has disagreed with Google on this point. His view is that national data protection legislation is applicable to a search engine provider when it sets up in a member state, for the promotion and sale of advertising space on the search engine, an office which orientates its activity towards the inhabitants of that state.

The second point is substantive, and is good news for Google. The Advocate General says that Google is not generally to be considered – either in law or in fact – as a ‘data controller’ of the personal data appearing on web pages it processes. It has no control over the content included on third party web pages and cannot even distinguish between personal data and other data on those pages.

Thirdly, the Advocate General tells us that there is no such thing as the so-called “right to be forgotten” (a favourite theme of debates on the work-in-progress new Data Protection Regulation) under the current Directive. The Directive offers accuracy as to safeguards and so on, but Google had not itself said anything inaccurate here. At paragraph 108 of his opinion, the Advocate General says this:

“… I consider that the Directive does not provide for a general right to be forgotten in the sense that a data subject is entitled to restrict or terminate dissemination of personal data that he considers to be harmful or contrary to his interests. The purpose of processing and the interests served by it, when compared to those of the data subject, are the criteria to be applied when data is processed without the subject’s consent, and not the subjective preferences of the latter. A subjective preference alone does not amount to a compelling legitimate ground within the meaning of Article 14(a) of the Directive.”

It remains to be seen of course whether the Court agrees with the Advocate General. The territorial issue and the ‘data controller’ question are of great significance to Google’s business model – and to those whose businesses face similar issues. The point about objectivity rather than subjectivity being the essential yardstick for compliance with data protection standards is potentially of even wider application.

“This is a good opinion for free expression,” Bill Echikson, a spokesman for Google, said in an e-mailed statement reported by Bloomberg.

Robin Hopkins

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RIPA: hacked voicemails and undercover officers

June 28th, 2013 by Robin Hopkins

The Regulation of Investigatory Powers Act 2000 (RIPA) has featured prominently in the news in recent weeks, both as regards undercover police officers/“covert human intelligence sources” and as regards the phone-hacking scandal.

Hacked voicemails

This morning, the Court of Appeal gave judgment in Edmonson, Weatherup, Brooks, Coulson & Kuttner v R [2013] EWCA Crim 1026. As is well known, the appellants face charges arising out of the News of the World phone-hacking controversy – specifically, conspiring unlawfully to intercept communications in the course of their transmission without lawful authority contrary to section 1(1) of the Criminal Law Act 1977.

The communications in question are voicemails. Under section 1(1)(b) of RIPA, it is an offence intentionally to intercept, without lawful authority, any communication in the course of its transmission by means of a public telecommunications system (my emphasis). The central provision is section 2(7) of RIPA:

“(7) For the purposes of this section the times while a communication is being transmitted by means of a telecommunication system shall be taken to include any time when the system by means of which the communication is being, or has been, transmitted is used for storing it in a manner that enables the intended recipient to collect it or otherwise to have access to it.”

The appellants applied to have the charges dismissed on the grounds that the words “in the course of transmission” in section 1(1) of RIPA do not extend to voicemail messages once they have been listened to (by the intended recipient, that is, rather than by any alleged phone-hacker). They argued that the ordinary meaning of “transmission” is conveyance from one person or place to another and that section 2(7) is intended to extend the concept of “transmission” only so as to cover periods of transient storage that arising through modern phone and email usage, and when the intended recipient is not immediately available. Thus, once the message has been listened to, it can no longer be “in the course of transmission”.

The point had previously been decided against the appellant. The Court of Appeal (the Lord Chief Justice, Lloyd Jones LJ, Openshaw J) took a similar view. While it accepted that the application of section 2(7) may differ as between, for example, voicemails and emails, “there is nothing in the language of the statute to indicate that section 2(7) should be read in such a limited way” (as the appellants had contended) (paragraph 23). Further, the words “has been transmitted” in section 2(7) “make entirely clear that the course of transmission may continue notwithstanding that the voicemail message has already been received and read by the intended recipient” (paragraph 26).

The same conclusion was reached by focusing on the mischief which section 2(7) is intended to remedy, “namely unauthorized access to communications, whether oral or text, whilst they remain on the system by which they were transmitted. As the prosecution submits, unlawful access and intrusion is not somehow less objectionable because the message has been read or listened to by the intended recipient before the unauthorized access takes place” (paragraph 28, quoting an earlier judgment in this matter from Fulford LJ).

The Court accepted that section 2(7) went further than the prohibitions imposed by Directive 97/66/EC concerning the processing of personal data and the protection of privacy in the telecommunications sector (which RIPA sought to implement) and its successor, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector (which postdates RIPA).  The Court found, however, that the Directives imposed minimum harmonisation; Parliament was entitled to go further and to set higher standards for the protection of privacy of electronic communications, provided that those additional obligations are compatible with EU law (paragraph 42).

Both the Data Protection Act 1998 and the Computer Misuse Act 1990 also raised their heads. The DPA, for example, contains a public interest defence which is not available under RIPA. It was argued that this risked creation parallel offences without parallel defences, violating the principle of legal certainty. This submission too was rejected (paragraphs 44-45).

The cases will now proceed to trial, apparently to commence in September.

Undercover officers

As regards the activities of undercover police officers, the major issue this week has concerned the alleged smearing of the family and friends of Stephen Lawrence: see for example The Guardian’s Q&A session with undercover-officer-turned-whistleblower Peter Francis.

The other major ongoing case regarding a former undercover officer concerns 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, J 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.

Unlike with the phone-hacking cases, it is not clear when this case will resume before the Court/Tribunal.

Robin Hopkins

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