Neutral Citation Number: [2025] UKIPTrib 10
Case Nos: IPT/17/110-112/CH
IN THE INVESTIGATORY POWERS TRIBUNAL
Date: 15 October 2025
Before:
LORD BOYD of DUNCANSBY (VICE-PRESIDENT)
ANNABEL DARLOW KC
JUDGE RUPERT JONES
——————————
Between:
AFG (1)
SPR (2)
FYC (3)
Claimants
-and-
CHIEF CONSTABLE OF DYFED POWYS POLICE
Respondent
————————
Georgina Wolfe appeared on behalf of the Respondent.
William Hays appeared as Counsel to the Tribunal.
Hearing date: 28 May 2025
——————————
OPEN JUDGMENT
Introduction
1.This is the judgment of the Tribunal, consisting of Lord Boyd of Duncansby, Vice-President, Judge Rupert Jones and Ms Darlow KC.
2.The three Claimants have each: a) brought human rights proceedings pursuant to s. 7 of the Human Rights Act 1998 (‘HRA’) and section 65(2)(a) of the Regulation of Investigatory Powers Act 2000 (‘RIPA’): and b) made a complaint under section 65(2)(b) of RIPA.
3.This case concerns two search warrants executed at the home address of AFG, the first Claimant, on 4 August 2016 and 24 January 2017. The warrants were executed during the course of an investigation by Dyfed Powys Police, the Respondent, into allegations concerning the downloading and sharing of indecent images of children. The second and third Claimants were both present at the premises when the first warrant was executed; the premises were unoccupied when the second search took place. Electronic devices belonging to each of the Claimants were seized by the Respondent. Subsequently, it was determined that the Internet Protocol addresses associated with the offending had been misattributed to the first Claimant, due to crossed wires in a local telecommunications street cabinet. The correct culprit responsible for the offending was then identified and prosecuted.
4.The Respondent accepts without reservation that each of the Claimants, who were never charged with any offence, was innocent of any wrongdoing in connection with their investigation. The Respondent further acknowledges that the conduct of the Claimants throughout the police investigation was exemplary and without fault.
5.The s. 7 HRA proceedings and complaint raise allegations that the Respondent was responsible for a breach of the Claimants’ human rights under the European Convention on Human Rights (‘ECHR’), in particular Article 8, and that the Respondent acted unlawfully in respect of their acquisition of communications data.
6. The issues have been agreed between the parties to be as follows:
(i) Whether the Tribunal has jurisdiction to determine the complaints.
(ii) As for the Article 8 claims, in relation to the searches of AFG’s home address on 4 August and again on 24 January 2017, were the claimants’ Article 8 rights engaged and, if so, were they breached?
(iii) If the claimants’ Article 8 rights were breached, is Dyfed Powys Police liable for such breach?
(iv) If the Tribunal has jurisdiction under issue (i), have the claimants identified any error of public law on the part of the Dyfed Powys Police such that the complaints should be upheld?
(v) If the answer to (iii) or (iv) is ‘yes’, is Dyfed Powys Police absolved from liability, in whole or in part, by reason of section 6 of the Constables Protection Act 1750?
(vi) If a breach is found to have occurred under issue (iii) or (iv), for which liability is not absolved under issue (v), what is the appropriate remedy for the relevant breach?
7. The Tribunal held an OPEN and a CLOSED hearing on 28 May 2025. Georgina Wolfe appeared as counsel for the Respondent and William Hays appeared as counsel to the Tribunal (“CTT”). We are grateful to them both for the quality of their submissions. The Claimants took no active part in the hearing. In addition to this OPEN judgment, there is a CLOSED judgment.
Anonymity
8. Each of the Claimants has stated a wish for their identities to be anonymised. The Claimants were never charged with any criminal offence and the Tribunal recognises that their legitimate expectation of privacy under Article 8 of the ECHR has been engaged. The Tribunal has therefore decided that the Claimants should be anonymised for the purposes of this judgment. The first Claimant will be referred to as ‘AFG’, the second Claimant as ‘SPR’ and the third Claimant as ‘FYC.’
Factual Background
9. In May 2016, Dyfed Powys police commenced an investigation into the sharing of indecent images of children (‘IIOC’). Proactive enquiries identified that images had been shared between 10 to 15 May 2016, using the public Internet Protocol (‘IP’) address ‘86.150.37.175’.
10. An IP address is assigned to the internet or local network by an internet service provider and must be used in order to browse the internet via broadband. IP addresses may change without any deliberate action by the customer and may be moved between customers by internet services providers, as and when required. This may happen in various circumstances, including where a dynamic IP address is changed by the service provider, a router is restarted or a Virtual Private Network (‘VPN’) is used. The geolocation of a device may be determined based on its IP address. Identifying who was using an IP address at a particular time requires an application under RIPA.
11. A proactive tool is available to police forces within the United Kingdom enabling the police to monitor IP addresses in their force area that are accessing and downloading IIOC, providing the IP address, time and date and a description of the material. There is also a cross-referencing system to corroborate the data provided by the tool.
12. The Respondent carried out a subscriber check using Charter, a database which facilitates the application, authorisation, processing and storage of telecommunications data. The search showed that the provider of the relevant IP address was British Telecommunications PLC (‘BT’). The Respondent thereafter made an application under section 22(2)(b) of RIPA 2000 for ‘communications data’, requesting that BT provide the user of the IP address corresponding to the time and date of the relevant IIOC download. In response, BT provided information indicating that the IP address was registered to an address within the Respondent’s area of operation in Wales. AFG was the registered tenant at this address. SPR also resided at the address and his girlfriend, FYC, was a visitor to the address.
13. On the basis of the information obtained from BT, on 9 June 2016, a warrant to search the first Claimant’s address was obtained, under section 4 of the Protection of Children Act 1978. Before the warrant was executed, further enquiries identified that a second IP address, ‘109.148.1…8’ had shared IIOC between 8 and 9 June 2016 and a third IP address, ‘109.148.11…7’ had shared IIOC on 15 June 2016. RIPA applications in respect of communications data for the second and third IP addresses each resolved to the first Claimant.
14.The search warrant was executed at the first Claimant’s address on 4 August 2016. The first Claimant was not present at the address and was only later made aware of the search; however SPR and FYC were both at the address when the police attended. Electronic devices were seized from the address and from SPR and FYC. AFG was at work at the time of the search. He was spoken to by the police on the same day and proved fully compliant and willingly provided his mobile phone to the police. His laptop, memory stick and his son’s iPod were also seized pursuant to the warrant. On 4 August 2016, voluntary interviews were conducted of all three Claimants, each of whom co-operated and assisted the police. During interview, AFG indicated that a large number of people visited his address and would have access to the wi-fi router.
15. The search was distressing for each of the Claimants and led to serious consequences which impacted upon their family and work lives. The visit was made subject of a Multi-Agency Referral Form. AFG’s employer was informed on 10 August 2016 that a child protection investigation was ongoing against AFG, and as a result he was placed on restricted duties. A disclosure was made on or about 7 August 2016 to the mother of his child that a child protection investigation was ongoing against him. A similar disclosure was made to the mother of SPR’s children and a job offer to SPR was withdrawn. On 5 August 2016, a child protection referral was made to Social Services and FYC was spoken to and advised that her children could not reside with her alone until such time as she might be cleared by the investigation.
16. The devices seized on 4 August 2016 were examined on 12 August 2016 and no IIOC were found on any device. Each of the three Claimants were informed that there would be no further action against them. In respect of FYC, this occurred on 12 August 2016; SPR on 18 August 2016 and AFG, on 19 August 2016. The devices seized were returned to their owners. The investigation was closed on 15 September 2016, following a review which concluded that in the absence of any IIOC or admissions, there was no evidence to proceed with a prosecution against any of the Claimants. This information was disseminated to Social Services and other agencies.
17. However, on 6 September 2016, enquiries identified that a fourth IP address ‘109.15…86’ had shared IIOC between 22 and 25 August 2016. Subscriber checks on 28 September 2016 established that the fourth IP address resolved to the address of the first Claimant. The previous investigation was reviewed and further enquiries were made with AFG’s employer, which established that the first Claimant was working during one of the previous incidents of sharing.
18. On 10 January 2017, enquiries identified that further IIOC were shared by a fifth IP address ‘109.156…9’, on 21 December 2016. This IP address was revealed by later enquiries to have been active on multiple occasions during the period 26 to 29 December 2016, and also on 6 January 2017. Subscriber checks in respect of the fifth IP address resolved to the first Claimant on 12 January 2017.
19. On 19 January 2017, an internal review was conducted by the Respondent at which it was agreed that AFG should be advised to change his router password and not disclose the new password to anyone visiting his premises. The Respondent requested further information from BT, including the identities of devices that had been attached to the first Claimant’s wi-fi router and the relevant upload and download data usage. In response, BT stated that they were unable to provide this information.
20. A sixth IP address, ‘86.150.37…90’ was indicated to have been active on two occasions on 23 January 2017. Subscriber checks established that this IP address resolved to the first Claimant.
21. The Respondent made an operational decision to obtain access to the wi-fi router at the first Claimant’s address at the earliest available opportunity and identify the device(s) attached to the router at the point in time when the sharing of IIOC on 23 January 2017 took place. It was anticipated that the information held on the router would be deleted within approximately 48 hours of use and a swift application was therefore of the essence. The previous RIPA applications were checked for administrative errors, with a negative result.
22. A further search warrant was therefore executed at the first Claimant’s home address on 24 January 2017. It may be noted that there is a slight discrepancy of fact as between the Claimants, who recall that the search warrant was executed on 17 January and the Respondent, who states that it occurred on 24 January, but nothing appears to turn on the discrepancy and, on the basis that the contemporaneous documentation supports the later date, it will be adopted by the Tribunal. No-one was present at the address at the time. The wi-fi router was associated with an Xbox and two android devices, which were each examined at the scene. No IIOC or file sharing software was found. The router was also associated with a Samsung device, which was not at the address, but was later voluntarily provided to police by the first claimant, who was spoken to by police on the same day. An examination of the router at the scene indicated that no devices were attached to it whilst the downloading of IIOC on the previous day had taken place. The IP address used by the router differed from the IP address identified as accessing and downloading IIOC.
23. The router was recovered from the address and all information held on the device was downloaded. A review of the download established that a seventh IP address, ‘86.181…53’ was allocated to the router during a period which included the download of the IIOC on 23 January 2017; this was not the same IP address which had been used to download the IIOC. A RIPA application in respect of the usage of this seventh IP address resolved instead to ‘Individual X’ who lived at ‘Address X’, which was within very close proximity to the home of the first Claimant.
24. Enquiries made of BT on 27 January 2017 were responded to on the following day. Following a network test involving the temporary break and restoration of service at both addresses, BT identified that a pair of crossed connections in the local network had caused a high likelihood that the IP addresses had been misattributed as between ‘Address X’ and the home address of the first Claimant. BT explained that approximately eight years previously, two wires within a street cabinet servicing both addresses had been inadvertently crossed. In consequence, the authentication result for the IP address relating to ‘Address X’ had been incorrectly attributed to the first Claimant’s address.
25. On 30 January 2017, a search warrant was executed at ‘Address X’ and the occupant, ‘Individual X’ was arrested on suspicion of possession of IIOC. Subsequent examination of devices seized from Individual X upon arrest identified the presence of IIOC. Individual X made partial admissions and was subsequently convicted of related offences.
26. AFG was visited by police officers on the same day and provided with disclosure relating to the investigation, including the fact that subsequent inquiries had revealed that the police had acted upon inaccurate information. AFG was informed that the Respondent would forward a report to the Interception of Communications Commissioner’s Office (‘IOCCO’) and that they would investigate the issue and inform him of the outcome. A verbal report was made to IOCCO on the same day and on 30 January 2017, a written report was submitted.
27. The report prepared by IOCCO did not identify any unlawful actions or misconduct on the part of the Respondent and concluded that ‘there was nothing DPP could have done that would have identified the error. Errors at source are effectively undetectable until discovered.’ It should be noted at this juncture that the conclusions of the IOCCO are not binding upon the Tribunal.
Material Legislation
Acquisition of Communications Data
28. RIPA has been subject to a number of revisions since its enactment and the analysis set out in this judgment will therefore refer to the version of RIPA in force at the time of the relevant conduct. At the material time, the acquisition and disclosure of communications data was governed by Chapter II Part 1 of RIPA. Communications data, as defined in section 21(4) of RIPA, includes traffic data comprised in or attached to a communication, for the purpose of any postal service or telecommunication system by which it is transmitted. Traffic data, as defined in section 21(6) of RIPA, may include IP address allocation.
29. Section 22 of RIPA applies where a person, designated for the purposes of Chapter II of RIPA, believes that it is necessary on grounds falling within section 22(2) of the Act, to obtain any communications data. A designated person is someone holding a prescribed office, rank or position within a relevant public authority (which may include a police force) that has been designated for the purpose of acquiring communications data by order. Grounds falling within section 22(2) include that the obtaining is necessary for the purpose of preventing or detecting crime or of preventing disorder. An authorisation or notice in respect of the acquisition of data may not be granted or given unless the designated person believes that the obtaining of the data in question is proportionate to what is sought to be achieved by obtaining the data. Where this is so, the designated person is then authorised to require the telecommunications operator to disclose the data sought.
The Jurisdiction of the Investigatory Powers Tribunal
30. The Tribunal holds jurisdiction pursuant to RIPA to consider two types of cases; human rights proceedings and complaints. In respect of human rights proceedings, the jurisdiction of the Tribunal is pursuant to section 65(2)(a) of RIPA, which provides that the Tribunal shall be, ‘the only appropriate tribunal for the purposes of section 7 of the Human Rights Act 1998 in relation to any proceedings under subsection 1(a) of that section (proceedings incompatible with Convention rights) which fall within subsection (3) of this section.’
31. Proceedings falling with subsection 65(3) of RIPA include those within subsection 65(3)(d), namely those ‘relating to the taking place in any challengeable circumstances of any conduct falling within subsection (5).’ The types of conduct enumerated in subsection (5) includes ‘conduct to which Chapter II of Part 1 applies’1; such conduct includes the obtaining of communications data. Subsection (5) relates to ‘any entry on or interference with property or any interference with wireless telegraphy.’
1 Section 65(5)(c) of RIPA
32. ‘Challengeable circumstances’ include, for the purposes of section 65, conduct of a public authority which takes place with the authority or purported authority of anything falling within subsection (8). An authorisation or notice under Chapter II of Part 1 of RIPA is included within subsection (8), at subsection (b). Alternatively, conduct takes place in challengeable circumstances if, ‘the circumstances are such that (whether or not there is such authority) it would not have been appropriate for the conduct to take place without it, or at least without proper consideration having been given to whether such authority should be sought.’
33. Secondly, the Tribunal holds jurisdiction to consider complaints: section 65(2)(b) of RIPA provides that the jurisdiction of the Tribunal shall be to, ‘consider and determine any complaints made to them which, in accordance with subsection (4) are complaints for which the Tribunal is the appropriate forum.’
34. Subsection (4) provides that:
The Tribunal is the appropriate forum for any complaint if it is a complaint by a person aggrieved by any conduct falling within subsection (5) which he believes-
(a) to have taken place in relation to him, to any of his property, to any communications sent by or to him, or intended for him, or to his use of any postal service, telecommunications service or telecommunications system; and
(b) to have taken place in challengeable circumstances or to have been carried out by or on behalf of any of the intelligence services.
35. As has been seen, subsection (5) includes conduct to which Chapter II of Part 1 applies, namely the acquisition of communications data and challengeable circumstances would include conduct taking place in accordance with an authorisation or purported authorisation for communications data under Chapter II of Part I.
The European Convention on Human Rights
36. Article 8 ECHR provides:
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The Parties’ Submissions
37. The case on behalf of each of the Claimants has been advanced in their claim and complaint forms and in supplementary personal statements and other supporting documents. The Claimants were legally represented at an earlier stage of proceedings, but were not represented at the OPEN hearing. The Tribunal have been assisted by written and oral submissions from Mr William Hays, who having been appointed as CTT, developed points that could be made on their behalf.
38. The grounds on which the Claimants’ cases are advanced are broadly similar and are based upon the execution of the search warrants. AFG alleges that he has been the victim of unlawful action under RIPA and/or the Acquisition and Disclosure of Communications Data Code of Practice 2015. He states that his Article 8 rights have been infringed and points to the disruption to his life, including the temporary deprivation of his property, resulting from his unwitting and innocent involvement in an investigation into offences which are rightly regarded with abhorrence by society. SPR and FYC advance similar cases, pointing to the particular and distressing disruption each has suffered.
39. Although each of the Claimants have expressed concern that they may have been subjected to directed and/or intrusive surveillance by or on behalf of the Respondent, the Respondent has confirmed that no such activity took place and the Claimants have each accepted this assurance.
Issue One: Jurisdiction
40. It is common ground between CTT and Ms Wolfe for the Respondent that the jurisdiction of the Tribunal is engaged both as to a complaint by reason of section 65(2)(b) RIPA and proceedings under section 7 of the Human Rights Act 1998 in so far as concerns the acquisition of communications data. The obtaining of communications data by the Respondent required an authorisation under Chapter II of Part 1 of RIPA and thus fell within section 65(5). It was done in challengeable circumstances because it took place with the authority, or purported authority, of an authorisation to obtain communications data. In so far as the complaints relate to the obtaining of communications data under RIPA, the conduct also falls within the jurisdiction of the Tribunal.
Issue Four: Error of public law
41. CTT notes that it is for the Claimants to establish that the obtaining of communications data was unlawful on public law grounds. In determining the claims and complaints, the principles to be applied by the Tribunal are those of judicial review as required by section 67(2) and 67(3)(c) RIPA.
42. The complaint is to be determined by reference to the factual position as it appeared to the decision maker, in accordance with the principles explained in R (Law Society) v Lord Chancellor [2019] 1 WLR 1649. A duty is imposed on decision-makers to acquaint themselves with the relevant facts, often referred to as the Tameside duty2. If the Claimants could demonstrate that the inquiry eliciting the explanation from BT as to the crossed wires, should have been made in advance of the obtaining of communications data, this might provide a ground for upholding the complaint. The argument would be advanced on the basis that it was irrational to seek the communications data without first making such an inquiry. The success of such an argument appears to be predicated upon the existence of a particular fact or circumstance, such as to put the respondent upon notice that further inquiry should be made in advance of seeking to acquire communications data.
2 Secretary of State for Education and Science v Tameside MBC 1 (1977) AC 1014.
43. The Respondent contends that no error of public law has been identified and no such error is discernible from the evidence before the Tribunal. The decision of the police to seek authorisations to resolve the identity of the individual connected with downloading or sharing IIOC was a lawful and proper response, which had been made to prevent criminal activity and associated harm. The error arose from crossed connections and was not one which the Respondent could have known or suspected prior to the outcome of the executions of the warrants. Once it had become apparent that no devices had been connected to the router at the time when the relevant unlawful activity took place on 23 January 2017, the Respondent sought further advice and guidance from BT. This prompted the investigation which identified the suspected crossed connections to the local network.
Issues 2, 3 and 5: Article 8 rights
44. On behalf of CTT, it is submitted that the jurisdiction of the Tribunal does not extend to the determination of whether other investigative steps, such as the obtaining and execution of the two search warrants at the first Claimant’s address, were compatible with Article 8, since such steps did not require authorisation under RIPA. CTT recognises, without supporting the submission, that an argument might be advanced on behalf of the Claimants that proceedings for a breach of Article 8 in connection with the search are proceedings ‘relating to’ the obtaining of communications data, on the grounds that the searches were based decisively on the data obtained. The conduct therefore would fall within section 65(3) RIPA and thus under the Tribunal’s jurisdiction. Similar reasoning might apply in respect of the interrogation of mobile phones and/or other overt steps taken during the investigation.
45. However, this contention would involve an expansion of the jurisdiction of the Tribunal based upon the undefined term ‘relating to’ and would potentially draw many other decisions taken by investigators into the jurisdiction of the Tribunal, including for example decisions about bail and charge which might be said to ‘relate to’ communications data obtained under RIPA powers. Further, the contention would imply that the subject matter forming the basis of a human rights claim before the Tribunal is significantly wider than that upon which a complaint might be based; a consequence lacking any apparent rationale. Such an analysis would not deprive the Claimants of a remedy; they might alternatively pursue a civil claim against the Respondent.
46.In light of the conclusion of CTT that the conduct of the Respondent in connection with the overt investigatory steps falls outside the Tribunal’s jurisdiction, it is submitted that consideration of section 6 of the Constables’ Protection Act 1750 is unnecessary.
47. Ms Wolfe, for the Respondent, adopts the submissions of CTT that complaints or claims concerning the further investigative steps taken by the Respondent, such as the search warrants as obtained and executed, fall outside the jurisdiction of the Tribunal. She submits that the conduct of the Respondent was not in breach of the Claimants’ rights under Article 8 and that any interference with their Article 8(1) rights were necessary and proportionate and in accordance with the law. The Respondent’s actions were necessary in a democratic society and in the interests of the prevention of crime, for the protection of morals and for the protections of the rights and freedoms of others. She maintains that the police had received credible intelligence indicating the commission of a serious criminal offence, upon which it was required to act, and the Respondent could not have known of the inaccuracies in the information provided by BT. In the alternative, the Respondent relies upon the provisions of section 6 of the Constables’ Protection Act 1750 which provides relevantly:
“6 Action not to be brought against constable till demand made of copy of warrant
No action shall be brought against any constable, headborough, or other officer, or against any
person or persons acting by his order and in his aid, for any thing done in obedience to any warrant under the hand or seal of any justice of the peace…”
Discussion and Decision
48. It is clear to the Tribunal that for each of the Claimants, the investigation by the Respondent of the alleged sharing of IIOC had highly distressing and far-reaching consequences, which affected both their work and personal lives. Each was entirely blameless and cleared of any wrongdoing.
Issue One: whether the Tribunal has jurisdiction to consider the complaint and claim of each claimant
49. In so far as the applications for communications data are concerned, the conduct complained of falls within the jurisdiction of the Tribunal to determine, both as a human rights claim and as a complaint. The Respondent rightly concedes that it engaged in conduct falling within section 65(5), namely conduct to which Chapter II of Part 1 applies (the acquisition and disclosure of communications data), which was done in challengeable circumstances, because it took place with the authority, or purported authority, of an authorisation to obtain communications data.
Issue Four: any error of public law
50. In determining whether the acquisition of communications data by the Respondent constitutes an error of public law, the Tribunal has applied the principles of judicial review. The three principle grounds of judicial review are unlawfulness, procedural impropriety and irrationality.
51. The relevant principles applicable to an application to obtain communications data were helpfully summarised in the judgment of the Tribunal in Damian Hill v Metropolitan Police Service & Independent Office for Police Conduct [IPT/20/62/H] at [17]:
“In News Group Newspapers Limited v Commissioner of Police for the Metropolis (IPT/14/176H) the Tribunal considered the operation of section 22 of RIPA and held:
(a) An applicant for authorisation under RIPA has a duty to include in the application the necessary material to enable the authorising officer to be satisfied that the statutory conditions are met, and must also make full and accurate disclosure, including disclosure of anything that might militate against the grant of an authorisation (para 81, applying Chatwani IPT/15/84/88/CH at para 15).
(b) The lawfulness of the authorisation(s) to obtain communications data must be judged on the basis of the information known to the investigation team at the time when the authorisations were issued (para 34).
(c) The belief of a designated person as to necessity and proportionality under section 21(1) and (5) must be an honest and reasonable belief (paras 74 and 89),
and
(d) Whether or not Convention rights have been breached is an objective question which does not depend on the procedural propriety of the decision-making process or the adequacy of the reasoning of the relevant designated person (para 65, applying Belfast City Council v Miss Behavin’ Limited (2007) 1 WLR 1420).”
52. Considering the grounds of necessity and proportionality, the Tribunal has concluded that in the circumstances of this case, both grounds were made out. The investigation which gave rise to both applications was one involving the downloading and sharing of indecent images of children, and there was a strong public interest in ensuring that the identity of the individual(s) responsible should be resolved, in order to prevent further criminal activity and associated harm to children and to bring the offender(s) to justice. There was no other discernible route open to the Respondent by which it might confirm the identity of the user of the IP address at the relevant times. The applications themselves were not an intrusive measure, did not result in collateral intrusion, and an appropriate balance was struck between an interference with the rights and freedoms of the Claimants and the benefits to the investigation.
53. The applications under section 22(2)(b) RIPA in respect of communication data made before the execution of the first warrant were made in response to information received by the Respondent, which the Tribunal is satisfied constituted a lawful basis for the authorisation to obtain communications data. The error giving rise to the incorrect identification of AFG as the user of the IP address at the relevant times, was contained within the response of a third party, namely BT, to the applications. The mistake was unknown to the Respondent at the time, and the cause of the error, namely a crossed wire, was one that the Respondent could not have reasonably foreseen and there were no additional checks that might have been made by the Respondent to identify the error. It was a rare occurrence, unknown to BT, the internet service provider and was of course entirely unsuspected by the first Claimant.
54. In respect of the section 22(2)(b) applications made after the execution of the first warrant, the Respondent conducted an internal review on 19 January 2017 and took steps to seek further information from BT, which yielded no meaningful response. The downloading of IIOCs from an IP address apparently associated with the first Claimant continued after the execution of the first warrant and the Respondent remained under a duty to investigate the matter. The Respondent acted promptly and proactively to attempt to resolve the apparent anomalies presented by their investigation, by seeking to interrogate the router shortly after a known incident of downloading IIOCs; the consequence of this step led to the exoneration of the first Claimant.
55. The Tribunal concludes that in the circumstances of this case, the acquisition of data by the Respondent did not constitute an error of public law.
Issues Two, Three and Five: jurisdiction in respect of the searches and Article 8 claims.
56. Turning to question as to whether the Tribunal holds jurisdiction over the circumstances surrounding the execution of the two search warrants, the conduct constituted an entry on, or interference with property, and thus may fall within the provisions of section 65(5)(f) of RIPA. However, the additional requirement that the proceedings took place in challengeable circumstances, within the meaning of the provisions set out in section 67(7) to (8) of RIPA, has not been fulfilled. The application for, and execution of a search warrant under section 4 of the Protection of Children Act 1978, is not conduct which requires an authorisation, permission or notice under any of the relevant provisions of RIPA. The conduct did not therefore take place with the authority or purported authority of anything falling within subsection (8) of section 65, or in circumstances such that it would not have been appropriate for the conduct to take place without consideration having been given to whether such authority should be sought.
57. In consequence, the Tribunal does not have jurisdiction either to determine the section 7 human rights proceedings, or the complaint, advanced by each Claimant in so far as they concern the execution of the searches or, for the avoidance of doubt, the consequences of those searches including the seizure of property and the actions taken by third parties, such as employers and social services.
58. CTT has suggested that a potential submission might be available to the Claimants, based upon the wording of section 65(3)(d) of RIPA3, namely that the proceedings arising from the execution of the search warrant might be said to ‘relate to’ the obtaining of communications data, thereby bringing the proceedings within the jurisdiction of the Tribunal as a human rights claim.
3 (‘proceedings relating to the taking place in any challengeable circumstances of any conduct falling within subsection (5)’)
59. However, as acknowledged by CTT, such an interpretation would imply an expansion of the jurisdiction of the Tribunal to encompass many decisions taken by police on the sole basis that those decisions might be said to ‘relate’ to the obtaining of communications data. Those decisions would ordinarily fall outside the scope of the Tribunal’s jurisdiction. The interpretation suggested would unduly strain the ordinary meaning of the words of the subsection.
60. The types of conduct which, pursuant to section 65(8) of RIPA, are deemed to take place in challengeable circumstances, relate to a core function of the Tribunal, namely providing a right of redress to anyone who has been subjected to the unlawful use by public authorities of intrusive powers, such as surveillance and the interception of communications, whose deployment requires authorisation, notice or approval under RIPA. An extension of the Tribunal’s jurisdiction to include conduct ‘relating to’ the acquisition of communications data, would enlarge its jurisdiction far beyond its statutory function.
61. Further, a wider interpretation of the wording of section 65(3)(d) RIPA is incompatible with the restricted statutory footing of the Tribunal. Singh LJ, President, considered the jurisdiction of the Tribunal in Al-Hawsawi v Security Service and ors [2023] UKIP Trib 5; ‘The Tribunal is a creature of statute. It does not have a general jurisdiction, for example, to consider or determine civil proceedings. The extent of its jurisdiction is as set out in Parliament in RIPA, no more and no less.’
62. The Tribunal’s conclusion that the circumstances of the execution of the search warrants at the first Claimant’s address are not within its jurisdiction does not however deprive the claimants of an effective remedy before the civil courts. The powers of search and seizure are governed by a separate regime under Part II of the Police and Criminal Evidence Act 1984, the regulation of which falls outside the jurisdiction of the Tribunal.
63. In light of the conclusion that the Tribunal does not hold jurisdiction in relation to the searches of AFG’s premises on 4 August 2016 or 24 January 2017, it is unnecessary for the Tribunal to consider whether any liability on the part of the Respondent is absolved by reason of section 6 of the Constables Protection Act 1750.
Conclusion
64. For the reasons set out in the judgment, the claims and complaints brought by each of the Claimants are dismissed. No determination is made in their favour for the purposes of s.68(4)(b) RIPA. It is therefore unnecessary to consider Issue Five, namely the appropriate remedy for any breach.
65. Pursuant to section 67A of RIPA there is a right to apply for leave to appeal this decision. The Tribunal specifies that the relevant appellate court for the purposes of an appeal under section 67A(2) RIPA is the Court of Appeal of England and Wales.
66. An appeal is possible only in respect of a point of law that raises an important point of principle or practice (or for any other compelling reason) and is not a decision on a procedural matter. An appeal requires permission so an application must first be made to the Tribunal for leave to appeal. A form applying for leave to appeal is attached and full details of the provisions relating to appeal may be found on the Tribunal’s website: www.investigatorypowerstribunal.org.uk.