NI Court of Appeal: Man approached to become informer must take ECHR case against Chief Constable to tribunal

About this case:

• Judgment:
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Background

In 2011 the appellant, Mr Brian Sheridan, pleaded guilty to offences relating to rifles and handguns being in a car in which he was travelling. Press reports at the time suggested that he was a member of the Real IRA or another proscribed organisation, although Mr Sheridan always denied this.

Mr Sheridan claimed that he was approached by three policemen while on holiday in Norway with his partner in February 2015. He claims he told them that he didn’t want to speak to them and that the approach caused him alarm and distress.

Mr Sheridan had no further contact with the police until October 2015 when he was stopped at a police check-point on the Newry Road in Armagh. He claimed that an unmarked car pulled up behind him and one of the men who had approached him in Norway got out. Mr Sheridan said he consistently told the men that he did not want to speak to them but one gave him a card with a mobile number on it and told him to give him a call.

Mr Sheridan’s solicitor phoned the mobile number and was told by the person who answered the call words to the effect of, “If I wanted to speak to Brian, I will get him again”.

Mr Sheridan told his solicitor that he felt he was being put at risk by the police publicly seeking to recruit him to provide intelligence and that other members of the community may have perceived wrongly that he was a police informant. He felt the police officers had failed to take adequate steps to protect his life, security and personal autonomy in breach of Articles 2, 3 and 8 of the European Convention on Human Rights. The solicitor submitted a statement to the Police Ombudsman asking for the matter to be treated as urgent.

In February 2016, the Ombudsman advised Mr Sheridan that his complaint had been rejected on the basis that there was insufficient evidence to support the allegations.

In response to a request that he provide reasons for having rejected the complaint, the Ombudsman stated that, having reviewed the material, he was satisfied that on these occasions the actions of the officers were proportionate, necessary and conducted within the relevant legal framework

Mr Sheridan’s solicitor was told that the Tribunal established under section 65 of the Regulation of Investigatory Powers Act 2000 (RIPA) was the proper forum to bring the complaint.

In May 2016 Mr Sheridan commenced judicial review proceedings, and in February 2017 the High Court refused the application for leave to bring a judicial review, holding that there was an alternative remedy open to him – i.e. the Tribunal.

Having determined that there was an arguable case against the Ombudsman, the judge considered that the proceedings should be stayed until after the determination of the Tribunal proceedings.

Court of Appeal

Section 26 of the Regulation of Investigatory Powers Act 2000 provides that Part II of the Act applies to the conduct and use of covert human intelligence sources (CHIS).

The Court said this case concerned an approach to Mr Sheridan and accordingly the question was “what is he being induced or asked or assisted to do”.

The Court found that Mr Sheridan was at the very least being induced to engage in maintaining a personal relationship with his “friends” and to engage in maintaining or establishing relationships with other members of the community for the covert purpose of facilitating the use of such relationships to obtain information and to disclose information obtained by the use of such relationships in relation to dissident republican terrorist activities.

As such, it was clear that the approaches fell within Part II of RIPA; therefore the trial judge was correct to refuse leave in relation to the challenge that the approach was unregulated.

Human Rights

An approach by a public body to an individual seeking to engage him in the conduct of a CHIS requires compliance with Articles 2, 3 and 8 ECHR

The Court said that a public approach such as occurred on the main Newry Road may not only be in breach of Convention obligations, but also may not be in the public interest as it might be an ineffective method of encouraging the supply of information to the police.

The Court considered that a human rights claim was clearly arguable against the Chief Constable, and the question was whether that claim was one within the exclusive jurisdiction of the Tribunal.

The Court of Appeal agreed with the trial judge’s conclusion that, in relation to the application for leave against the Chief Constable, the complaints the applicant sought to make should be made to the Investigatory Powers Tribunal and that “there is no arguable case in respect of which the court should grant leave to apply for judicial review against the PSNI and that any complaint the applicant may have in this area should be directed to the Investigatory Powers Tribunal and not this court.”

Dismissing all grounds of appeal, the Court held that the Tribunal was the appropriate recourse for Mr Sheridan’s human rights complaint.