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||Neutral Citation Number:  EWHC 3551 (Admin)
||Case No: CO/1652/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE FOSKETT
|| MIKHAEL ANATOLYEVICH TRUSHIN
||- and –
||NATIONAL CRIME AGENCY
Piers Gardner and Julianne Kerr Morrison (instructed by Bindmans LLP) for the Claimant/Respondent
Catrin Evans (instructed by Treasury Solicitor) for the Defendant/Applicant
Hearing date: 9 October
Further written submissions: 15-17 October
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Foskett:
- The Claimant is a Russian national. He arrived in the UK in November 2004 (and was granted leave to remain as an "investor" on 29 December 2004) having left Russia believing he would be likely to be arrested in connection with his involvement with Yukos Oil Company ('Yukos'). The decline and fall of that company has been well-documented and well-publicised and I need say nothing more about it. The Claimant's final position with Yukos was as First Vice-President of Yukos-Moscow and Deputy Chairman of its Management Board. Following the arrest of Mikhail Kodorkhovsky (the principal shareholder and effective CEO of Yukos) in October 2003 the Claimant became President of the Board of Directors of Yukos-Moscow and remained nominally in that position after leaving Russia until his resignation in April 2005.
- The UK Government granted the Claimant political asylum on 19 August 2005, thereby recognising as well-founded his fears of persecution by the Russian authorities. In February 2005 an investigation and proceedings relating to possible criminal charges were instituted in Russia and it was the existence of these processes that formed the backdrop to the grant of asylum. In October 2005 a request for his extradition to Russia was made by the Russian authorities and the matter was considered by the Westminster Magistrates' Court on 20 January 2006. In due course that request was refused. The precise reason is not clear from the material available (and neither party appeared before that court), but it would be surprising if his refugee status was not a significant factor.
- The recognition of his refugee status is consistent with the circumstances giving rise to the subsequent decision of the European Court of Human Rights in the Case of Khodorkovsky and Lebedev v Russia dated 25 July 2013.
- The criminal proceedings continued in Russia and in July 2011 the Claimant was tried and convicted in absentia on various charges of embezzlement and money laundering. He was sentenced to 9 years imprisonment.
- The parties have helpfully agreed a note relating to the circumstances in which someone's refugee status might be revoked or cancelled. Suffice it to say that it would not appear that there is any basis upon which either of those events would be likely to occur in the foreseeable future in the Claimant's case. Accordingly, in so far as these proceedings relate to possible events in the future, the legitimate assumption is that he will remain protected by his refugee status and he must accordingly, in those circumstances, be entitled to the legal protections afforded to someone with that status.
- Against that brief background, the Claimant's concern is the manner in which his personal and sensitive personal data is (and is likely to be) processed by the National Crime Agency ('NCA') - and how it was processed by the Serious Organised Crime Agency ('SOCA') prior to the NCA taking over its responsibilities from 7 October 2013 – in relation to the continued interest of the Russian authorities in securing his return to Russia to face the consequences of the criminal proceedings to which I have referred. He has brought the present proceedings against the NCA in relation to these concerns which I will describe more fully below. In essence, he asserts that processing his personal data whilst he is protected from extradition to Russia by reason of his refugee status is unnecessary and unlawful. The NCA seeks to have those proceedings struck out and/or seeks summary judgment against the Claimant. In her Skeleton Argument, Miss Catrin Evans says that "[the] Defendant submits that the whole claim is entirely without merit and in any event an abuse of the Court's process …."
- The jurisdiction to terminate these proceedings in the manner suggested to be appropriate by the Defendant is set out in CPR 3.4(2)(a) and (b) and CPR 24.2. For completeness, I will set out each. CPR 3.4(2)(a) and (b) is as follows:
"The court may strike out a statement of case if it appears to the Court –
(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;
(b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings…"
- CPR 24.2 is as follows:
"The court may give summary judgment against a claimant … on the whole of a claim or on a particular issue if –
(a) it considers that –
(i) [the] claimant has no real prospect of succeeding on the claim or issue; …
(b) there is no other compelling reason why the case or issue should be disposed of at a trial."
- I will not deal with whether the claim the Claimant seeks to make ought to have been brought under Part 7 or Part 8 of the CPR. It is common ground now that if the proceedings continue, they should be treated as having been issued under Part 7 and should proceed under that Part thereafter.
- The claims that the Claimant seeks to advance and the relief sought are based upon –
(a) sections 10(4), 13 and 14 of the Data Protection Act 1998 (the 'DPA');
(b) section 8 of the Human Rights Act (the 'HRA');
(c) Article 8 of the Charter of Fundamental Rights of the European Union (the 'EU Charter');
- In a nutshell, he asserts that SOCA processed his personal data, including sensitive personal data, inconsistently with (i) Data Protection Principles (and thus in breach of the DPA), (ii) his status as a refugee, (iii) his Convention rights and (iv) his rights under the EU Charter. It is alleged that SOCA did so by processing data received from others including the Russian authorities and by providing it to others including the Russian authorities. He alleges that this "improper processing" (as it is characterised on his behalf) has caused him loss and damage for which he should be compensated. I will identify, on the basis of what has been disclosed thus far, what that data has been to-date (see paragraph 13 below).
- He also asserts that the NCA intends to continue processing data of this type in the future and that he is entitled to prevent that occurring. In that connection, there is no issue that this is the present intention of the NCA: in the NCA's Summary Grounds for Contesting the Claim, it is asserted that it "considers that the attempts by the Russian Federation to extradite the Claimant to be an ongoing matter" and, accordingly, "[the] retention of the … personal data continues … to be necessary and proportionate for the fulfilment of the NCA's functions as defined". What the Claimant seeks, in addition to compensation, is an order that the NCA should takes steps to "rectify, block, erase or destroy, and to cease processing" his personal data.
- The record of the data which SOCA determined that the Claimant "was entitled to" see under the DPA was supplied by way of a schedule to his solicitors under cover of a letter dated 23 April 2013. For present purposes, I consider that his solicitors' response to that schedule is sufficient to encapsulate the complaints he makes thus far. I should say that they complained in the letter that insufficient disclosure was made in the schedule, but I can leave that to one side for present purposes. The complaints made about what was characterised in the letter as the "revealed data" (which embraces the period from 1 February 2005 to 20 March 2013) are summarised in five points as follows:
"1. SOCA controls, processes and holds date concerning Mr Trushin (the Revealed Data); and
2. All the Revealed Data concerns and arises as a result of the Russian Proceedings;
3. Of the twenty-seven entries in the Revealed Data, all but five, twenty-two entries, post-date the grant of asylum to Mr Trushin as a result of the Russian Proceedings;
4. On 17 February 2007 (Entry 18) SOCA (as the INTERPOL NCB) actually expressly informed Moscow NCB that Mr Trushin had been granted asylum. As Mr Trushin is a Russian national, that was a notification by SOCA to the authorities whose actions have been determined to caused Mr Trushin to have a 'well-founded fear of persecution' under the terms of the Geneva Convention of 1951; and
5. Those twenty-two entries in the Revealed Data evidence SOCA's efforts to assist the Russian authorise in their attempts to pursue Mr Trushin in the Russian Proceedings. Those efforts continued vigorously up to the penultimate entry (Entry 26 dated 25 February 2013) when SOCA (as the INTERPOL NCB) notified Moscow NCB that they had 'been informed by the Metropolitan Police Extradition Squad that they have identified [Mr Trushin] as residing in the UK. In order to arrest the subject a full order extradition request must be submitted through diplomatic channels. Until such paperwork is received, TRUSHIN will remain at large in the UK'." (Emphasis as in the original)."
- His case, in a nutshell, is that so long as he remains a refugee with political asylum status in the UK, there is no warrant for his personal data, including his sensitive personal data, to be processed either at all or certainly not in a way that results in any aspect of that data being provided to the Russian authorities. His solicitors put it as follows in their letter of 19 August 2013:
"Given [the Claimant's] refugee status and the character of the Russian proceedings, the control, processing and holding of the Revealed Data is not lawful, nor does it pursue a legitimate aim, nor could it be proportionate to such an aim if legitimate."
- So far as his claim for damages is concerned, in the Amended Details of Claim dated 16 January 2014 the following heads of claim were identified:
"a. The damage Mr Trushin has suffered as a result of the fact that the Improper Processing accentuated the restrictions on Mr Trushin's ability to travel, which affected Mr Trushin's ability to travel to the United States of America to see his daughter and in developing business interest there with her;
b. The wasted costs he incurred in: (i) seeking advice (in relation to which there is no waiver of Mr Trushin's privilege) about the Memorandum of Understanding signed in November 2006 between the Russian General Prosecutor's Office and Crown Prosecution service; and (ii) having his then legal team correspond with the Home Office and the CPS seeking reassurance (which was provided) that the confidentiality of his refugee status, and the grounds for it, would be preserved. The total wasted costs was £141,640.89 including VAT;
c. Harm to Mr Trushin's reputation;
d. The distress caused by the disclosure of his refugee status to the Russian authorities and/or the Improper Processing in general. For example, not only did the Improper Processing involve the disclosure of Mr Trushin's confidential refugee status, the dispersal of Mr Trushin's sensitive personal and personal data to a range of agencies has caused considerable distress and anxiety which has resulted in the Metropolitan Police making enquiries in to Mr Trushin's home address; and/or
e. The continuing damage and distress caused by the threat of future Improper Processing."
- A closer analysis of the points quoted in paragraph 13 above reveals that some aspects of the processing of which complaint is made constituted responses to Interpol Red Notices issued through the Interpol system. I will return to the alleged relevance of this in due course (see paragraphs 28-42 below).
- That, therefore, indicates the essential factual basis upon which the claim, as presently formulated, is advanced. I will deal shortly with the way the matter is put in law from the Claimant's perspective.
The claim under the DPA
- It is not disputed that SOCA was and the NCA is a "data controller" for the purposes of the DPA which means that it must process personal and sensitive personal data in accordance with the detailed provisions of the Act. In order for data to have been processed lawfully, it must have been processed in accordance with the Data Protection Principles (which are set out in Part I of Schedule 1 to the Act). The first principle is as follows:
"Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless—E+W+S+N.I.
(a) at least one of the conditions in Schedule 2 is met, and
(b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met."
- I need not set out Schedules 2 and 3 for present purposes.
- Section 10(1) provides as follows:
"Subject to subsection (2), an individual is entitled at any time by notice in writing to a data controller to require the data controller at the end of such period as is reasonable in the circumstances to cease, or not to begin, processing, or processing for a specified purpose or in a specified manner, any personal data in respect of which he is the data subject, on the ground that, for specified reasons—
(a) the processing of those data or their processing for that purpose or in that manner is causing or is likely to cause substantial damage or substantial distress to him or to another, and
(b) that damage or distress is or would be unwarranted."
- Section 13 provides the grounds for compensation under the Act as follows:
"(1) An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage.
(2) An individual who suffers distress by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that distress if—
(a) the individual also suffers damage by reason of the contravention, or
(b) the contravention relates to the processing of personal data for the special purposes.
(3) In proceedings brought against a person by virtue of this section it is a defence to prove that he had taken such care as in all the circumstances was reasonably required to comply with the requirement concerned."
- Section 14(4) provides:
"If a court is satisfied on the application of a data subject—
(a) that he has suffered damage by reason of any contravention by a data controller of any of the requirements of this Act in respect of any personal data, in circumstances entitling him to compensation under section 13, and
(b) that there is a substantial risk of further contravention in respect of those data in such circumstances,
the court may order the rectification, blocking, erasure or destruction of any of those data."
The claim under the HRA
- It is not disputed that the Claimant's Article 8 rights are engaged by virtue of the handling of his personal data. SOCA was and the NCA is a "public authority" within the meaning of the HRA and, accordingly, is obliged to give effect to Convention rights. The Claimant's case is that his rights have been violated by SOCA and are threatened to be violated by the NCA. His case in that regard has assumed a further dimension since the matter was argued before me (see paragraph 45-52 below).
- Section 8 permits compensation for breach of Article 8 in the following circumstances:
"(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.
(2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.
(3) No award of damages is to be made unless, taking account of all the circumstances of the case, including—
(a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and
(b) the consequences of any decision (of that or any other court) in respect of that act,
the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made …."
The EU Charter
- Article 8 of the EU Charter provides:
"1. Everyone has the right to the protection of personal data concerning him or her.
2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.
3. Compliance with these rules shall be subject to control by an independent authority."
- It is not entirely clear to what extent this adds anything to the case advanced under the DPA and the HRA.
Why does the NCA submit that these claims are without merit and doomed to fail?
Abuse of process
- I can deal with and dispose of one aspect of the NCA's case in this regard at the outset. It was suggested that the purpose (or a substantial part of the purpose) of the Claimant's proceedings was to obtain a declaration of an English court condemning the Russian proceedings against him. It was contended that this would amount to a collateral attack upon "the sovereign acts of a foreign state". Whatever the potential legitimacy of that argument, it is right to say that no aspect of the Claimant's pleaded case truly gave rise to the expectation that such relief was being sought. At all events, Mr Piers Gardner, for the Claimant, has made it quite clear that no such relief is sought or contemplated. In my view, that disposes of that issue.
The NCA's role
- A substantial part of the NCA's attack on the substance of this claim is based upon what is said to be its true role in the processing and disseminating of personal data. The starting point for this purpose is the relationship between the NCA and Interpol.
- Interpol is an international organisation which possesses observer status at the General Assembly of the United Nations. Its aim is the facilitation of international police cooperation, but upon the strict basis, confirmed in Article 3 of its Constitution, "that in order to ensure the widest possible cooperation between the police authorities of its member States, it is strictly forbidden for the organisation to undertake any intervention or activities of a political, military, religious or racial character." This is often referred to as "the neutrality clause".
- Miss Evans has highlighted also the following provisions of the Constitution:
Its aims are:
(1) To ensure and promote the widest possible mutual assistance between all criminal police authorities within the limits of the laws existing in the different countries and in the spirit of the "Universal Declaration of Human Rights";
(2) To establish and develop all institutions likely to contribute effectively to the prevention and suppression of ordinary law crimes.
In order to further its aims, the Organization needs the constant and active co-operation of its Members, who should do all within their power which is compatible with the legislations of their countries to participate diligently in its activities.
In order to ensure the above cooperation, each country shall appoint a body which will serve as the National Central Bureau. It shall ensure liaison with:
(a) The various departments in the country;
(b) Those bodies in other countries serving as National Central Bureaus;
(c) The Organization's General Secretariat.
- The NCA (and SOCA before it) constitutes the UK's National Central Bureau ('NCB').
- Interpol has a detailed set of rules relating to the processing of data running to some 57 pages. For present purposes, all I need to do is to identify what a 'Red Notice' is and also to mention the expression 'diffusion'. Article 82 of these rules describes a Red Notice as follows:
"Red notices are published at the request of a National Central Bureau or an international entity with powers of investigation and prosecution in criminal matters in order to seek the location of a wanted person and his/her detention, arrest or restriction of movement for the purpose of extradition, surrender, or similar lawful action."
- Miss Evans helpfully describes the process by saying that a Red Notice is issued centrally by Interpol and is usually published on the Interpol public website. A less formal form of request for cooperation or alert is known as a 'diffusion'. A diffusion is circulated by an Interpol member direct to other member countries of their choice or to the entire Interpol membership. Article 97 says this of the diffusions system:
"The diffusions system consists of standardized requests for cooperation and alerts each corresponding to a specific purpose:
(a) to arrest, detain or restrict the movements of a convicted or accused person;
(b) to locate and trace;
(c) to obtain additional information;
(d) for identification purposes;
(e) to warn about a person's criminal activities;
(f) for information purposes."
- Most of the requests from the Russian authorities through Interpol in relation to the Claimant were in the form of a Red Notice or a diffusion. Miss Evans contends that the NCA's specific function in relation to a Red Notice in the context of an extradition request under Part 2 of the Extradition Act 2003 is limited to acting as the NCB with the consequence that, consistent with "the neutrality clause", it acts "merely as a conduit" between Interpol and other NCBs (including the Russian NCB in Moscow) and the relevant designated UK executive authority. The designated authority responsible for effecting extradition requests from territories designated under Part 2 of the Extradition Act is the Secretary of State for the Home Department, acting through the Judicial Cooperation Unit ('JCU'), with the assistance of the MPS. The Secretary of State is also the relevant executive authority responsible for asylum.
- The argument advanced is that once a Red Notice has been issued the NCA is obliged to process it in accordance with its role as the UK's NCB and the fact that the Claimant was granted asylum does not remove the NCA's obligation to hold and process his personal data in that role. As I understand the argument, the NCA submits that it is obliged (or at least permitted) by the Crime and Courts Act 2013 to supply personal information in certain specified circumstances. Reliance is placed on section 7 of the Act, two relevant subsections being as follows:
"(3) Information obtained by the NCA in connection with the exercise of any NCA functions may be used by the NCA in connection with the exercise of any other NCA function.
(4) An NCA officer may disclose information obtained by the NCA in connection with the exercise of any NCA function if the disclosure is for any permitted purpose."
- A permitted purpose is defined in section 16 as including –
"(a) the prevention or detection of crime, whether in the United Kingdom or elsewhere;
(b) the investigation or prosecution of offences, whether in the United Kingdom or elsewhere;" (Emphasis added)
- Miss Evans drew attention to similar statutory provisions that applied to SOCA and the National Criminal Intelligence Service ('NCIS') before SOCA.
- She also asserted that any order preventing the NCA from processing the Claimant's personal data would be likely to prejudice its ability to comply with its NCB function of acting as a conduit for Interpol related matters including the obligation to maintain a record of the actions it takes in fulfilment of its role as NCB. She drew attention to section 29(3) of the DPA which provides:
"(3) Personal data are exempt from the non-disclosure provisions in any case in which—
(a) the disclosure is for any of the purposes mentioned in subsection (1), and
(b) the application of those provisions in relation to the disclosure would be likely to prejudice any of the matters mentioned in that subsection."
- Subsection (1) provides as follows:
"Personal data processed for any of the following purposes—
(a) the prevention or detection of crime,
(b) the apprehension or prosecution of offenders, or
are exempt from the first data protection principle (except to the extent to which it requires compliance with the conditions in Schedules 2 and 3) and section 7 in any case to the extent to which the application of those provisions to the data would be likely to prejudice any of the matters mentioned in this subsection."
- The contention is that since one purpose of the processing of personal data by the NCA as the UK's NCB is the prevention or detection of crime, the Claimant's personal data is exempt from the non-disclosure provisions of the DPA because the application of those provisions "would be likely to prejudice" that purpose. This means, she argues, that the data is exempt from the First Data Protection Principle (that the data be processed fairly and lawfully) except to the extent to which the First Principle requires compliance with the conditions in Schedules 2 and 3, the Second, Third, Fourth and Fifth Principles and sections 10 and 14(1) to (3): see section 27(4). She contends that Schedule 2 is satisfied in this case because (pursuant to paragraph 3) "the processing is necessary for compliance with any legal obligation to which the data controller is subject other than an obligation imposed by contract" and also because (pursuant to paragraph 6) the processing is "necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed" which she equates with the NCA's statutory obligations relating to crime functions "except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject" (Schedule 2, paragraph 6(1). She submits that the processing is not so unwarranted.
- For reasons that will become apparent below, I do not consider that the grounds for striking out this claim are made out, or that there are grounds for granting the Defendant summary judgment. Since that is my view, I do not want to say more for present purposes than is absolutely necessary about these statutory provisions: that will be a matter for the judge dealing with the substantive trial. However, two things are plain: (a) the governing statutory provisions are quite complex (as the Defendant has, in any event, suggested) and (b) whatever the precise effect of those provisions may be, it is acknowledged that the NCA is a "data controller" and, irrespective of that, is obliged to consider the Article 8 rights of someone in respect of whom it has information when fulfilling its responsibilities as a "public authority".
- I should, perhaps, record at this point that one aspect of Mr Gardner's response to the suggestion that the NCA is, in effect, bound to comply with the requirements of Interpol without question is to highlight the words "do all within their power which is compatible with the legislations of their countries" in Article 31 of its Constitution (see paragraph 30 above) and to draw attention to Articles 7 and 11 as follows (the emphasis being his):
"Article 7: Control of data processing
(1) National Central Bureaus and international entities shall retain, at all times, control over the processing of their data, in accordance with the present Rules. Any National Central Bureau or international entity shall be free, in particular, to restrict access to or the use of its data in one of the Organization's police databases, under the conditions provided for in Article 58 of the present Rules…
Article 11: Lawfulness
(1) Data processing in the INTERPOL Information System should be authorized with due regard for the law applicable to the National Central Bureau, national entity or international entity and should respect the basic rights of the persons who are the subject of the cooperation, in accordance with Article 2 of the Organization's Constitution and the Universal Declaration of Human Rights to which the said Article refers.
(2) The National Central Bureaus, national entities and international entities shall be responsible for ensuring [the] lawfulness of the collection and entry of their data in the INTERPOL Information System.
(3) The National Central Bureaus, national entities and international entities shall also be responsible for ensuring the lawfulness of the consultation of the data entered in the INTERPOL Information System."
- These provisions, he argues, demonstrate that as data controllers, the NCA remains (and SOCA remained) subject to its obligations under the DPA, HRA/ECHR and the EU Charter when acting as an NCB. Whilst it would be a matter for evaluation at trial if there is one, that argument appears to have force in it.
- He also says that the effect of the NCA's argument is to suggest that section 29(3) of the DPA provides a complete or absolute defence to the claim and that that provision in effect provides a blanket exemption from non-disclosure of private information for agencies charged with the prevention or detection of crime and/or in relation to dealing with any Interpol-related request for information. In answer he draws attention to the exception to the exemption reflected in the words "to the extent to which the application of those provisions to the data would be likely to prejudice any of the matters mentioned in this subsection" at the end of subsection (1). He contends that no evidence of prejudice has been advanced by the NCA and that any consideration of that issue should, in any event, be left to a trial because it depends on the facts of the particular case. This was recognised, he submits, by R (Lord) v Secretary of State for the Home Department  EWHC 2073 (Munby J).
- I make no comment other than to say that, in my view, the points Mr Gardner raises are such that it would preclude striking the case out at this stage. However, irrespective of those matters, it was the apparent dichotomy between the need for the NCA to give effect to Convention rights and yet to claim to act "merely as a conduit" that led me to raise the question during the course of argument of what would happen if the NCA was asked by the Russian authorities for the Claimant's private address. If the NCA had it, or came into possession of it, would it reveal it? If the NCA was a "mere conduit" for the passage of personal data, it seemed likely that his address would simply be passed on without any appraisal being made of whether the risks to him and his family occasioned by the revelation of his address overshadowed or overtopped any public interest in co-operating with Interpol and, via Interpol, with the Russian authorities. It is not difficult to see why the Claimant might be very concerned if his private address was revealed.
- Miss Evans, together with her instructing solicitor, undertook to let the court know how the NCA would discharge its acknowledged duty to give effect to Article 8 rights in a situation like this. In a letter to me after the hearing (copied, of course, to the Claimant's solicitors) the NCA explained the background. I will endeavour to summarise it.
- Where the NCA intends to disclose intelligence to an overseas authority, the procedure apparently is that the responsible officer must ensure that the disclosure is genuinely required for a permitted purpose and to consider any risks that may arise from giving the disclosure. The internal procedure requires the production of a formal intelligence log, grading each item of intelligence using the well-known "5X5X5" criteria. That, however, as I understand it, applies only where the NCA is the source of the intelligence itself. When it is not the source of the intelligence and is acting in what is described in the letter as "a liaison capacity", an intelligence log of the sort indicated is generally not required. The justification for this is that the "originator of the intelligence is best placed to assess its reliability and how the intelligence should be handled".
- The letter goes on to say that where "the responsible officer" identifies a serious human rights risk, a "Form C" risk assessment must be completed and the intelligence must be graded according to the 5X5X5 criteria before any disclosure is made. Form C contains seven questions, one of which is whether there are "any human rights, ethical, personal, collateral intrusion or operational risks that are likely to result as a consequence of … dissemination" of the intelligence/evidential material. There is no question or box on the Form which asks the specific question as to whether the person in respect of whom intelligence/evidential material might be supplied is a political refugee. At all events, the dissemination cannot take place until an "authorising officer" has reviewed the decision-making process of the responsible officer and the authorising officer cannot authorise the dissemination if a higher level of authorisation is required under the "Overseas, Security and Justice Assistance Guidance" (the most recent formulation of which was published on 28 February 2014). I do not think it necessary or appropriate at this stage to go into a great deal of detail, save to say that certainly some of the considerations highlighted in one of the checklists to be gone through by the official considering the matter at that level would appear potentially to relate to someone in the Claimant's position. As the Claimant's solicitors correctly indicate in their response to this new information, the checklist undoubtedly envisages "a case specific, individualised assessment" before any information is supplied.
- The further information given in the letter from the NCA is to the effect that the transfer of personal data to overseas authorities through Interpol in category 2 extradition cases is "extremely limited". What is said that occurs is that the Metropolitan Police Service ('MPS') Extradition Unit directs the NCA (as NCB) to notify the overseas authorities that an individual is located in the United Kingdom which then prompts an extradition request through diplomatic channels. It is said that responsibility for "risk assessing" such disclosure lies primarily with the MPS Extradition Unit. Where the NCA (as NCB) is aware of significant relevant information (for example, where the subject of the request has asylum) "operational practice is to refer the matter back to [the Metropolitan Police Service Extradition Unit] to ensure that they are aware of the relevant information." Responding, I imagine, to my question about the supply of a private address, what is said that the transfer of such information "does not usually fall within the NCB liaison function, for the purposes of category 2 extradition cases, as the extradition process can only be pursued through diplomatic channels."
- It is also said that Form C risk assessments are not routinely undertaken in cases of this kind because of the limited nature of the information being shared and it goes on to say that there is "no record of a Form C risk assessment in relation to the transfer of any of [the Claimant's] data to the Russian Federation" and that none of the material thus transferred "has been graded using 5X5X5 criteria". The conclusion of the NCA is that it appears "that the responsible officer did not consider that there was a serious human rights risk and relied upon the assessment of the originator in each case."
- On the basis of this further disclosure, it does seem to me that the Claimant's advisers are entitled to say that, as it stands, it is arguably inconsistent with the NCA's assertion that it is "merely a conduit", but also raises the question of whether there has been any assessment by reference to the applicable criteria when deciding whether the Claimant's data could be processed lawfully or whether, if it be the case that the NCA relies on the assessment of others in such a situation, that is an adequate discharge of its obligations. It may prove to be the case that there has been an adequate assessment, but there are at least the makings of a case that one has not been undertaken or undertaken sufficiently and it would be wrong to say, on the evidence as it stands, that the prospect of establishing that case is fanciful on the facts. Equally, if that case is established, it would raise concerns about the future processing of personal data. Miss Evans suggested that the Claimant's Article 8 rights were too weak to outweigh the data-processing functions of the NCA as an NCB. I do not consider that the court can say that at this stage of this case.
- I do not propose to venture any further along this path because it seems to me that this is pre-eminently a matter for investigation at a trial. Even if all other matters were decided against the Claimant at this stage (which I do not say that they should be), this does seem to me to amount to a "compelling reason" why there should be a trial so that these matters can be investigated: they raise issues of some importance, possibly going beyond the precise circumstances of this case.
- That being my conclusion, strictly speaking, the other matters raised on behalf of the NCA do not fall for consideration. However, I will deal with each fairly briefly.
Damages claim has no reasonable prospects of success
- Miss Evans submits that to establish a claim for relief under section 10(4) of the DPA the Claimant must establish that the processing has caused and is likely to cause him substantial unwarranted harm or substantial unwarranted distress. She says that the Amended Details of Claim (which are set out in paragraph 15 above) are largely unparticularised and under (a) refer to damage alleged to have arisen from the processing having "accentuated the restrictions" on his ability to travel, in particular to the United States, under (b) to seeking "wasted costs" incurred in connection with various legal challenges relating to his asylum status, under (c) to damage to his reputation and under (d) to distress caused by disclosure of his refugee status to the Russian authorities "and/or the Improper Processing in general" and/or the "threat of future of Improper Processing". She also says that damages for loss of reputation are irrecoverable.
- She contends that the prospect of proving that such heads of loss could be "substantial" is fanciful and, in any event, there is no real prospect of showing that they were caused by the Defendant's processing of the specific personal data in question – in other words, those within the "revealed data".
- Causation is "quintessentially a matter of fact" (per Lord Browne-Wilkinson in Barrett v Enfield London Borough Council  2 AC 550) and it would be unusual to strike out a claim on the basis of a proposition such as the second part of Miss Evans' submission and, as it seems to me, whether a claim is or is not "substantial" is itself a matter of fact. Mr Gardner says, on this point, that even if the court rejected the Claimant's claim for pecuniary loss, the court may award nominal damages for the losses he has suffered: cf. A B v Ministry of Justice  EWHC 1847 (QB) and Halliday v Creation Consumer Finance Limited  EWCA Civ 333. I agree with Miss Evans that the prospect of the Claimant establishing a right to damages for loss of reputation is remote, but that is, to my mind, a relatively minor aspect of this claim. I would not strike it out as such notwithstanding its slim prospects of success because it is at least the kind of claim that has a logical connection with the essential claim being made and it is something which it is legitimate to ask the trial judge to consider if the issue is still alive at the time.
- In my view, each of those reasons is a reason for not striking out the claim at this stage: the issues should be left for resolution at trial.
The application to the Commission for the Control of Interpol Files ('CCF')
- Data protection within Interpol is governed by the Interpol Rules on the Processing of Data (see paragraph 32 above) and is supervised by the CCF. The Claimant applied to the CCF in December 2012 seeking access to all the personal data relating to him that was held or processed by Interpol and for the correction or deletion of all data concerning him. It is correct to say that the point was made strongly on his behalf that the proceedings against him in Russia were politically motivated.
- The Claimant was told in April 2014 that his application had been unsuccessful. Whilst it was acknowledged that there were "political elements surrounding [the] case", the proceedings against him in Russia were, it was said, not considered to be "predominantly political in nature". In consequence the information concerning him had been processed in compliance with Interpol's rules and the request for deletion was rejected.
- Miss Evans says that the application to the CCF was for materially the same relief against Interpol as is sought in this action and it was unsuccessful. It follows, she argues, that the Claimant cannot restrain the continued issue of Red Notices by Interpol or the processing by Interpol of his personal data and, accordingly, even if the court restrained the processing by the NCA in this jurisdiction this would not prevent the continuing publication of the Red Notices and processing by Interpol which, she asserts, is the very "harm" which he seeks by these proceedings to cease or prevent.
- I cannot accept this argument. Mr Gardner is, in my judgment, right to say that the assessment by the CCF of the Russian proceedings is irrelevant to these proceedings because it is the UK Government's assessment of the nature of the Russian proceedings that is determinative of the Claimant's status in this claim. Equally, as he says, the relief sought in these proceedings is neither worthless nor negated by the fact that Red Notices will still be in place or issued. The relief he seeks is in this jurisdiction.
- The fact that the decision on the application to the CCF was not disclosed to the NCA for 6 weeks after it was promulgated is suggested to warrant the inference that the Claimant was aware that the CCF's decision wholly undermined his claim in these proceedings and that was why he did not draw attention to it sooner. Since the application is, for the reasons already given different from the basis of the present proceedings, I do not see how such an inference could be drawn. Nonetheless, whatever the thinking behind its non-immediate disclosure, I do not consider that it operates to declare these proceedings an abuse of process.
- The final point relied upon by Miss Evans is delay. It is said that the delay in bringing this claim and/or the historic and fragmentary nature of the personal data in question is likely to lead to the Defendant being prejudiced in defending the claim and is likely to obstruct its fair disposal. In her Skeleton Argument she had suggested that "the prospect must be very poor of the Defendant being able to obtain relevant evidence of historic matters relating to the merits of a conviction in [Russia] in 2011 and involving no doubt complex and involved fraud allegations going back to before 2004." I do not think she advanced this in the oral argument before me, but I cannot see the need for this kind of evidence. The broad nature of the Claimant's conviction in Russia, to the extent that it is relevant to this claim, can no doubt be ascertained from any particulars given by the Russian authorities looked at in the light of the record of the substantial consideration given in Europe to the prosecution of former Yukos employees.
- At all events, Mr Gardner is correct to say that the most recent provision of information to Russia by SOCA was in February 2013 and the threat is that further requests will be responded to by the NCA (see paragraph 12 above). On that basis the proceedings relate, amongst others, to a relatively recent occurrence and to the threat of further disclosures in response to further requests from Russia through Interpol.
- For these reasons, I do not consider that the grounds for striking out this claim are made out or that this is a case for summary judgment. Plainly, nothing I have said binds the trial judge who will hear full argument and evidence on the issues to be considered. All that I have concluded is that it is not certain that the claim will fail and, in any event, that it raises an issue of some importance in relation to the NCA's responsibilities for processing personal data which goes beyond the circumstances of the present case.
- Accordingly, the Defendant's applications are dismissed.
- I am grateful to Miss Evans, Mr Gardner and Miss Kerr Morrison and their respective Instructing Solicitors for their assistance.
Note 1 For the meaning of ‘NCB’ see paragraphs 30-31 below. [Back]
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