Earlier this year a book and Channel 4 documentary by Paul Lewis and Rob Evans blew the lid off the darker side of British undercover policing, revealing that since the 1970s undercover police officers of the Special Demonstration Squad (SDS) had routinely deceived female activists into committed sexual relationships. This followed the inadvertent outing in 2010 of Mark Kennedy, an undercover officer who had infiltrated left-wing activist groups for seven years (See my previous blog post here)
In the wake of the Mark Kennedy revelations a number of victims who claim they had in more recent years been deceived by undercover officers from the SDS’s successor, the NPOIU- mounted a legal challenge against the police. They claimed a breach of their human rights under Art.3 (right not to be subject to inhumane and degrading treatment) and Art.8 (right to private and family life) of the ECHR, along with common law claims in deceit, assault, negligence and misfeasance in public office.
The police asserted that under the Regulation of Investigatory Powers Act 2000 (RIPA) the human rights elements of the claims would have to be heard in the Investigative Powers Tribunal rather than the High Court. The IPT only has jurisdiction to hear human rights claims which concern surveillance by police and intelligence services, and as such is particularly secretive. Claimants do not get to see and test the evidence against them, judgments need not even be set out and cannot be appealed. Between 2000 and 2010 less than 0.9% of the 1120 claims heard were upheld.
Last November the High Court ruled in favour of the police, confirming that the human rights claims would need to be heard by the IPT. Understandably this disappointed the claimants, who were concerned that they would not receive a fair hearing. This week the appeal was heard in the Court of Appeal.
The appeal largely rests on the issue of whether, in drafting RIPA in the way in which it did, Parliament intended for ‘sexual relationships’ to be regulated by the Act. If Parliament did intend this, the claims will be heard by the IPT; if not, the IPT will not have jurisdiction and the claims will be heard in open in the High Court.
Part II of RIPA deals specifically with undercover operatives (Covert Human Intelligence Sources, to use the proper term), under which s.26 provides for the ‘type of conduct’ which is governed by Part II of the Act. In what seems to be accepted as a poor piece of drafting, s.26(8) provides that:
“For the purposes of this Part a person is a covert human intelligence source if—
(a) he establishes or maintains a personal or other relationship with a person for the covert purpose of facilitating the doing of anything falling within paragraph (b) or (c);
(b) he covertly uses such a relationship to obtain information or to provide access to any information to another person; or
(c) he covertly discloses information obtained by the use of such a relationship, or as a consequence of the existence of such a relationship.”
As such, much of the appeal centred around whether or not the wording ‘personal or other relationship’ should be taken to include sexual relationships, with the claimant activists arguing that it cannot and the defendant police forces asserting that it must.
In his original decision of last year, Mr Justice Tugendhat took the view that Parliament must have envisioned that undercover officers might sleep with their targets, citing fictional stories such as James Bond:
“James Bond is the most famous fictional example of a member of the intelligence services who used relationships with women to obtain information, or access to persons or property…fictional accounts (and there are others) lend credence to the view that the intelligence and police services have for many years deployed both men and women officers to form personal relationships of an intimate sexual nature (whether or not they were physical relationships) in order to obtain information or access”
As such he ruled that the IPT was the correct court to consider the human rights claims and that proceedings in relation to the common law claims should be stayed until the IPT has ruled. In this week’s appeal, counsel for the Claimants have sought to convince the Court of Appeal otherwise.
I was unfortunately only able to attend the second day of the hearing but followed the arguments as best as I could without any documentation in front of me. On behalf of the Claimants, Phillippa Kaufmann QC and Heather Williams QC submitted that due to inequality of arms, any conclusion drawn by the IPT would be “fundamentally unbalanced and unfair”. It was pointed out that the High Court had the power to redact sensitive information, anonymise identities and restrict circulation of sensitive documentation in order to quell the security concerns of the Police.
It was submitted that the principles of open and natural justice must be upheld – claimants should have the opportunity to test the case against them and unchallenged evidence may mislead.
The Claimants also asserted that the IPT cannot have jurisdiction over ACPO (Association of Chief Police Officers) as it is not a ‘police force’ for the purposes of s.81(1). ACPO is joined in the proceedings as it is alleged that the police officers were working under the NPOIU and therefore would have been authorised by ACPO.
Monica Carss-Frisk QC for the Defendants submitted that sexual relationships cannot be “carved out” from the wording of s.26(8), asserting that if it were possible to ‘read down’ sexual relationships from the wording of the provision then it would be possible to do so for other types of relationship (such as close platonic relationships), and that this is not what parliament intended when drafting in the way it did. This was elaborated upon by Jeremy Johnson, who professed of the “complex and multifaceted nature” of human relationships. He attempted to draw a parallel with “kiss and tell” sagas and one night stands, suggesting that sexual relationships do not necessarily have to be greatly intrusive by their nature.
The Defendants’ case is that Justice Tugendhat in his judgment struck the right balance, allowing the police to sufficiently defend themselves whilst allowing the Claimant’s common law claims to be heard. The Defendants’ current position has been NCND (neither confirm nor deny) as to details of the operatives in question, to whom they refer as ‘MK’ and ‘MJ’ (their full names will be fairly obvious to anyone who has been following the scandal). They submit that they would be “severely hampered” in their ability to defend themselves in open court as details and identities of operatives would need to be disclosed, though interestingly it was admitted that some disclosure had been made to ‘MK’ in his own action against the Defendants.
Responding to the Claimants’ point about the IPT’s jurisdiction over ACPO, the Defendants submitted that as a limited company with no statutory function, ACPO should not be joined as a defendant at all, as it is police commissioners who are vicariously liable for the actions of police officers.
The result of this appeal will have enormous implications; if the claims must be heard in the IPT the Claimants will face an even harder uphill struggle, and the public will not learn the full extent of what the undercover officers were up to. Recently Mr Justice Burton, newly appointed head of the IPT, hinted this week at a willingness to open the court up to more accountability by listing cases to be heard in public. However this is a minor concession, Claimants would still be denied the opportunity to test defendants’ evidence and the right of appeal.
Judgment is expected in early 2014; activists will be waiting with bated breath.