The Data Brief

A monthly data protection bulletin from the barristers at 5 Essex Chambers

Karpichov v National Crime Agency [2023] EWHC 2653 (KB)

28 November 2023

Overall, a poor week for defendants seeking summary judgment in information law claims. In Karpichkov v NCA, Master McCloud dismissed a strike out/summary judgment application by the NCA. The claim, in misuse of private information and under the DPA 2018, is based on what is said to be the unlawful disclosures to the Latvian authorities in 2018 and 2019 by the NCA of the Claimant’s current name and UK address, as part of EU-wide law enforcement cooperation. Since the Claimant’s background is – on his account – as a former double agent for both the Latvian and Russian intelligence services, who subsequently sought asylum in the UK (and subsequently became a UK citizen), changed his name, and took steps to keep his address private, the disclosure of his current name and address to Latvian authorities is a cause of some concern for him. On his account, the result of this is that the Russian state has become aware of his new details and that his life has been put at risk as a result.

The NCA’s position was that it was obliged to provide disclosure by virtue of the agreements entered into for information sharing between European law enforcement agencies (which remained in force in 2018-19 as part of the Brexit transitional arrangements). The Claimant had been the subject of multiple extradition requests from Latvia. Though some of these had been refused or declined, a European Arrest Warrant (“EAW”) was outstanding. In 2018, a request was made by Latvia, through an EU information sharing programme, for information about the Claimant’s whereabouts with a view to extradition. The relevant local police force initially decided not to execute the EAW, seemingly in disagreement with the NCA. The NCA provided Latvia with details of the Claimant’s new identity in 2018. Later that year, the local police did arrest the Claimant under the EAW. Latvia issued a second EAW, in the Claimant’s new name; he was further arrested under this warrant, and as part of the information provided to Latvia as a result, his new address was given. Ultimately, the Claimant’s extradition to Latvia was refused by the UK courts.

The claim relates to the disclosure of both the Claimant’s new identity and his new address by the NCA to the Latvian authorities, and is put under both Part 3 DPA and in misuse of private information. In short, the Claimant says that these disclosures were not necessary, while the NCA says that they were. The NCA applied for strike out (on the basis that there were no reasonable grounds for bringing the claim) or summary judgment.

Master McCloud held that although the relevant statutory instruments did on their face appear to require the transmission of the personal data in question, there had to be carve outs where fundamental rights were in issue. The Claimant’s case that they were was not so unfounded as to be unarguable or fanciful. The application was refused.

As with the Baroness Lawrence case considered elsewhere in this update, this case demonstrates the technical nature of many claims in this field, which will often make strike out/summary judgment challenging to obtain. It also illustrates the challenges facing law enforcement authorities, who have to apply complex legal frameworks while increasingly at risk of civil liability if they go wrong – or even if there is a credible argument that they have gone wrong, which may turn on contested views of issues such as ‘necessity’.

Further reading: Karpichkov v NCA [2023] EWHC 2653 (KB)

The Data Brief

A monthly data protection bulletin from the barristers at 5 Essex Chambers

The Data Brief is edited by Francesca Whitelaw KC, Aaron Moss and John Goss, barristers at 5 Essex Chambers, with contributions from the whole information law, data protection and AI Team.

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