Retired police chief awarded £25,000 for ‘unlawful surveillance’ by British Transport Police 

A retired police chief who brought a claim against British Transport Police for “unlawful surveillance” has been awarded damages of £25,000.

 

The Investigatory Powers Tribunal also awarded the claimant more than £20,000 in costs after rejecting the BTP’s claim that its failure to secure authorisation under the Regulation of Investigatory Powers Act 2000 (RIPA) was merely a “technical breach”, adding that the force’s actions breached the claimant’s right to privacy.

 

 

President of the IPT Sir Michael Burton QC, sitting with Professor Graham Zellick QC, heard that the claimant Gary Davies, a retired chief superintendent of another police force with an “exemplary record”, was arrested following a train journey and eventually charged with five offences of sexual assault, before being acquitted on all counts by a jury in the Crown Court. 

 

While travelling on a train on 10 May 2016, Mr Davies was subject to surveillance by a BTP officer and a colleague who decided on this course of action the previous day if Mr Davies were to appear at the railway station, which he did. 

 

Mr Davies was observed throughout the journey and photographs were taken and was publicly arrested at the close of the journey, removed from the train and then interviewed. 

 

BTP’s communications team also issued a press release, well before the claimant’s trial, trumpeting his arrest.

 

The nature of the surveillance emerged during the Crown Court trial when the claimant learnt that there was no authorisation.

 

Following Mr Davies’s acquittal of all charges he complained to the police and an internal investigation was conducted by a BTP Detective Inspector, who concluded that, as the officer’s actions were pre-planned and not an immediate response, a RIPA authorisation should have been sought and therefor constituted an admission of liability.

 

The tribunal accordingly found that the claimant was subject to “unlawful surveillance” contrary to the 2000 Act, which amounted to a breach of his right to privacy under article 8 of theEuropean Convention on Human Rights.

 

 

Mr Davies, who now works for a local authority, sought a monetary award totally more than £85,000, which included £20,000 to cover the “unlawful action” itself and the non-pecuniary damaging consequences that flowed from it; £44,000 in respect of salary lost for not being promoted while he was awaiting trial; and £21,694 being the difference between his actual defence costs in the criminal trial of £33,150 and the £11,455.60 which he was awarded from central funds.

 

However, the respondent argued that it was “merely a technical breach” of RIPA with “no bad faith” and that none of the consequences detailed by Mr Davies – which were not challenged - flowed directly from the unlawful surveillance itself but rather from the “entirely proper decision” to charge him with several counts of sexual assault resulting in a Crown Court trial. 

 

In support of this contention, the respondent provided a witness statement by Detective Superintendent Nick Sedgemore, the BTP officer empowered to grant authorisations for surveillance under RIPA, who said he had “no doubt” that he would have granted an authorisation if he had been asked to consider the application by the investigating officer DC Day.

 

It was claimed that the failure by DC Day to seek the requisite RIPA permission was attributable to “lack of knowledge” that an authorisation was necessary.

 

In BTP’s view, “just satisfaction” for the breach of RIPA and invasion of privacy would be “adequately afforded” by a declaration alone and no monetary award was either necessary or appropriate. 

 

Rejecting that argument, the tribunal said it was “astonished” that Superintendent Sedgemore would have been prepared to grant authorisation for surveillance, adding that the case revealed a “disturbing lack of familiarity” with the relevant requirements of RIPA by almost every officer who was involved.

 

 

The judgment stated: “The legal requirements for an authorisation do not come close to being met and it is disturbing that the senior officer entrusted with decision-making in this area has so imperfect a grasp of the relevant law. The tribunal’s conclusion is that no authorisation could properly have been granted and, if one had been, it would have been unlawful. 

 

“As for any want of malice or bad faith on DC Day’s part, we observe that, while malice or bad faith would have measurably aggravated the breach, a failure based on ignorance offers no mitigation. A detective of any standing, let alone one with several years’ experience, should have knowledge of the legal requirements relating to the investigation of crime, including RIPA, and ignorance is neither excuse nor mitigation.”

 

It added: “The tribunal concludes that this was very far from being a mere technical breach of RIPA. It was a breach founded on ignorance that led to extremely severe and damaging consequences to the claimant. The invasion of the claimant’s right to privacy on the train by the BTP was exacerbated by his arrest in full view of fellow commuters; the prosecution and trial that in our judgment would in all probability not have taken place; the issue of a wholly unnecessary press release; the inexcusable ignorance of all the investigating officers of the requirements of RIPA; the attempt to make light of the breach by Superintendent Sedgemore; the absence of any evidence that efforts are being made to make good the widespread ignorance of BTP officers of the relevant law; and the absence of any apology or offer of amends. 

 

“We therefore make an award of £25,000 to reflect the gravity of the breach and the damage suffered by the claimant and a further award of £21,694 in respect of the claimant’s defence costs, making a total of £46,694. We make no further or separate award in respect of the possible loss of income resulting from a missed promotion. Although the claimant presented some evidence in support of the claim, we regard it as too speculative and remote to constitute a separate head of damage, but it has influenced our assessment under the first head. We observe that the damage to his reputation and career prospects has been mitigated by his acquittal and, we hope, this judgment.”