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Backing on undercover sex cases

A ruling that some actions brought by people who claim they were tricked into forming relationships with undercover police officers can be heard by a tribunal which may sit in private has been backed by t he Court of Appeal .

Mr Justice Tugendhat gave the go-ahead in January for the cases brought under common law by 10 women and one man, who want compensation for emotional trauma allegedly caused by officers infiltrating environmental activist groups.

But he said that claims brought under the Human Rights Act against the Metropolitan Police and South Wales Police should be determined by the investigatory powers tribunal (IPT), which holds a number of hearings in private and has no obligation to take oral evidence.

Today, the Master of the Rolls Lord Dyson, Lord Justice Maurice Kay and Lady Justice Sharp said the IPT did have jurisdiction to decide all the human rights claims.

They went on to allow the appeal against the judge's decision to stay the High Court proceedings pending the determination of proceedings at the IPT.

The women say they had a sexual relationship with a man who was later discovered to be a covert human intelligence source (CHIS), while the male claimant alleges a non-sexual relationship.

The police have argued that the IPT, which was formed in 2000, was the appropriate forum for all the claims as Parliament intended such cases to be decided by a specialist tribunal with a specially tailored procedure.

Some of the claimants say they had relationships with Mark Kennedy, the undercover police officer who spent seven years spying on environmental activists posing as Mark ''Flash'' Stone.

Ruling that the IPT was the appropriate forum, Lord Dyson said the question was whether the alleged conduct complained of was that to which the relevant part of the Regulation of Investigatory Powers Act 2000 (RIPA) applied - on the footing that the conduct was the establishing and maintaining of a "personal or other relationship".

"If an intimate sexual relationship is not a personal or other relationship, the IPT has no jurisdiction to entertain the human rights claims and they must, therefore, be determined by the court.

"What is meant by 'personal or other relationship'? These are ordinary words. A personal relationship is a relationship between persons. As a matter of ordinary language, a sexual relationship is an example of such a relationship.

"At first sight, it seems obvious that the IPT has jurisdiction to deal with the human rights claims."

Despite this, lawyers for the group contended that a personal or other relationship did not include an intimate sexual relationship.

Rejecting that interpretation, he said that to give "personal or other relationships" its ordinary meaning so as to include intimate sexual relationships did not produce any "startling or unreasonable" consequences which Parliament could not have intended.

"That is why we do not consider that the principle of legality requires the words to be given a narrower meaning than they naturally bear."

He added that Parliament clearly intended that human rights proceedings about the establishing or maintaining of relationships by undercover police officers should only be determined by the IPT.

"The proposition that sex is the thing that makes all the difference between a case that is sensitive enough to be required to be heard in a special tribunal and a case which is not so sensitive is absurd.

"The reason why the case needs to be heard in the special tribunal is because it relates to undercover operations, arising out of personal or other relationships."

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