Applications for property interference, the duty of candour, the risk of acquiring material covered by legal professional privilege and the limitations of prior judicial approval

Judgments of the Investigatory Powers Tribunal (IPT) are not routinely published but those that are offer a rare and often valuable insight on how the judiciary consider authorisations for property interference and surveillance should be handled. The recent case of Chatwani and others v National Crime Agency [2015] UKIPTrib 15_84_88-CH considered the duty of candour and evaluation by the lead officer and others on the risk of acquiring legal professional privilege. It also highlighted the efficacy of prior judicial approval as a form of oversight.

The claimants were members of a successful family business (operated by the Chatwani and Tailor families) whose headquarters were based in Kanta House, South Ruislip. The National Crime Agency (NCA) suspected some members of the two families to be involved money laundering activities running into millions of pounds as part of an organised crime group.

The NCA sought and obtained an authorisation for property interference and for the installation of covert listening devices at Kanta House. The installation took place during the execution of a search warrant at the premises on 28 January 2015. The search warrant was later quashed by the High Court. The families complained to the Investigatory Powers Tribunal that the authorisation for the installation of the covert listening devices was unlawful.

Authorisations to interfere with property are provided for by ss 93 to 97 of the Police Act 1997 (the 1997 Act). An authorising officer may, if he or she believes it is necessary for the purpose of preventing or detecting serious crime and proportionate, authorise the taking of such action in respect of such property as he or she may specify. In determining whether the requirements of necessity and proportionality are met, account should be taken as to whether the objective of the authorisation could reasonably be achieved by other means.

Certain types of authorisation, specified in s 91 of the 1997 Act require prior approval from the Office of the Surveillance Commissioner. These include authorisations where the authorising officer believes any of property is used wholly or mainly as a dwelling, bedroom in a hotel or constitutes office premises or where the authorisation is likely to result in the acquisition of matters subject to legal privilege, confidential personal information or confidential journalistic material.

Before the IPT, the NCA’s counsel submitted that there were only two criteria for the granting and approval of authorisations, necessity and proportionality. The Chief Officer had to believe the interference was necessary and proportionate and the Commissioner, in approving the authorisation, satisfied that this belief was based on reasonable grounds.

The IPT set out the terms of the authorisation. The NCA summarised their case resisting the complainants.

There was no dispute that in making their application the NCA was under a duty of candour. The IPT helpfully stated the practical effect of this duty at paragraph 15 of its judgment:

The applicant for authorisation (just as an applicant for a warrant) has a duty to include in it the necessary material to enable the authorising officer (and where appropriate the Commissioner) to be satisfied that the statutory conditions are met, but must also make full and accurate disclosure to them, including disclosure of anything that might militate against the grant. So far as necessity and proportionality is concerned, the authorising officer must (pursuant to s 93(2)) believe that the action proposed is necessary (for the purpose of preventing or detecting serious crime) and proportionate: where the Commissioner is required to give approval he must, pursuant to s 97(5), be satisfied that there are reasonable grounds for such belief.    

The propriety of the authorisation was attacked on a number of grounds each of which broadly amounted to, if established, material non-disclosure. The primary complaint however was that there had been a breach of the duty of candour in the NCA’s failure to disclose that its main objective around the planned arrests and interviews was not evidence gathering but to “provoke a behavioural reaction on [the suspects] release from custody”. This (according to an email from the lead officer in the case) meant that, “legal topics will be at the forefront of conversations of those suspected of being involved”. This gave rise to a second complaint about the likelihood of acquiring material attracting legal privilege. The view that legal topics would be a predominate theme of the conversations following the release of the suspects was difficult to square with the fact that the boxes on the authorisation form were not ticked to indicate there was a likelihood of obtaining matters subject to legal privilege or other confidential material (the evidence of one officer was that he “never” ticked the boxes). Officers gave evidence to the IPT that their belief was that the acquisition of such material was unlikely. In fact significantly quantities of communications subject to legal privilege was obtained.

The majority of the complaints of non-disclosure were rejected by the IPT at paragraphs 18 to 24 of the judgment.

The IPT then considered the two main and inter-related complaints, “the plan” and the assessment of the likelihood of acquiring matter protected by legal privilege.

The evidence of the lead officer suggested that there was some awareness that the plan to arrest in order to provoke a response from the suspects that would then be caught by the surveillance devices was pushing the envelope. He described it as “lawfully audacious” when giving evidence at the High Court in respect of the warrant but the application described it as “simple” and designed to create “a sterile environment to work in, minimising operational compromise”. The question for the IPT was whether non-disclosure of the full extent of the plan amounted to a material non-disclosure. It held that it did.

Moreover, had the main objective been disclosed, the IPT held, it should have become apparent to the authorising officer but in any event the Commissioner that there was a risk of capturing material covered by legal privilege, either because lawyers would visit Kanta House to meet with clients or the complainants would speak to their lawyers using telephones located there. This would have had the effect of engaging paragraphs 4.11 and 4.12 of the Code of Practice, requiring the authorising officer and the Commissioner to be satisfied that exceptional and compelling circumstances existed making the authorisation necessary and identifying the steps to be taken to mitigate the risk of acquiring legal privileged material.

Having reached the conclusion that it did, the IPT applied the appropriate test to determine was whether the error would have in fact have made a difference to the decision. Although the Tribunal was persuaded in principle that the Commissioner may have been satisfied that exceptional and compelling reasons existed it held that in the absence of any explanation as to what steps would be taken to ensure matters subject to legal privilege obtained was not used by law enforcement investigations or prosecutions, the authorisation would not have been given. The authorisation and approval were quashed and the IPT cautioned those applying for such authorisations in the future to ensure that greater care is taken to comply with their duty of candour.

The practical points to emerge from this judgment are:

– there is a need to always consider as a discrete issue, based on the individual facts of the case and in every case, the risk of acquiring privileged or other confidential material; officers should avoid the temptation to rely on the mere existence of a policy

– officers need to assiduously apply their mind to the duty of candour (the “duty to disclose anything that might militate against the grant” of the authorisation)

– there is no room for blanket policies – a policy, even if unwritten – of not ticking boxes requiring a judgment to be made is to be deprecated

– where a legal challenge is made, the focus of the court will always be the authorisation, it should be drafted on the basis that lawyers, a judge or judges may pour over it at some later date

– the authorisation will be judged not on its length but on the application of the correct principles and exercise of judgment

It also underlines the limits of prior judicial approval – which is only as good as the material disclosed in fact in the application – and likely to be a key in issue in the consultation following the publication of the Investigatory Powers Bill.

© Simon McKay (2015). Please ask for my permission before using or copying the material contained on this blog. If you do attribute it to me with a link to the original content. This is opinion, not legal advice.