In an unexpected and welcomed move the Met yesterday announced that it will no longer attempt to strike out claims brought by five women in respect of the undercover police officers who deceived them into sexual relationships.
I have previously written about the ongoing #spycops saga here, here, and here. The claimants had brought civil claims for deceit, assault, misfeasance in public office and negligence, and also claimed an infringement of their human rights under articles 3, 5 and 8 of the ECHR. The Court of Appeal ruled in November last year that the human rights claims would be heard in the secretive Investigatory Powers Tribunal but had lifted a stay on the civil proceedings, ruling that they should be heard in open in the High Court and that this should take place before the IPT hearing.
Police had applied to have the civil claims struck out entirely, on the basis that they intended to stick to their ‘NCND’ policy of neither confirming nor denying the identities or involvement of undercover operatives, and that doing so would diminish their chances of being able to defend themselves in court. This has been widely regarded as ludicrous given that several officers have themselves admitted involvement and the identities of several others is now common knowledge.
Yesterday’s announcement states:
“In light of the upcoming Public Inquiry into undercover policing, the most recent Operation Herne investigation report and the huge public interest in these issues, the Met has decided it would not be appropriate or proportionate to go ahead with the application to strike out the claims.
The legal arguments involved in this case are novel, complicated and important and the ramifications of departing from NCND, during litigation, was likely to have far reaching implications. We are not prepared to discuss, at this stage, how we will proceed with defending these claims.”
The move should be welcomed and this is really the first time the Police have even acknowledged the gravity of the situation. The claimants have released a press statement welcoming the announcement. However I suspect the Police have only made this concession as they are confident that they can apply for a closed material procedure under the recently introduced Justice and Security Act 2013. This allows the Secretary of State to make an application for a closed hearing in situations where a party would be required to disclose ‘sensitive information’- that is, information which would be damaging to the interests of national security.
This would introduce yet more secrecy, allowing for the Police to disclose evidence which cannot be properly examined or tested by the claimants.
The first such declaration under the new regime was given in November in the case of CF and Mohamed (which concerns an individual dubbed by the media as the “burqa fugitive”). In an admittedly fascinating judgment Justice Irwin explained:
“The Act permits the State to establish a regime, if the relevant criteria are established in the case in hand, allowing evidence to be adduced in private, under strict conditions which do not threaten national security. This can avoid the need for a concession which threatens or carries injustice for the State. It imports a corresponding risk of injustice to the Claimant acting against the State, whose case will now be met by evidence he never hears and cannot answer.
The risk of injustice to the Claimant can be minimised in a number of ways: principally the testing of the State’s case by the Special Advocates, and by the vigilance and care of the court itself, ensuring all points are explored, ensuring a proper caution in the inferences to be drawn, with the limitations of the closed material procedures in mind. These safeguards are imperfect…The Claimants make a number of specific points in this vein: special advocates are not instructed by the Claimants, cannot communicate with them once having seen closed material; special advocates cannot often in practice adduce evidence; their role is limited to making “purely forensic points” and “taking blind shots at a hidden target”.
A CMP would make it incredibly difficult for the claimants as they would be unable to test any evidence disclosed by the Police, and would also help the Police to evade the public scrutiny which so clearly needs to happen.
The case appears to be becoming more high profile. Following Mark Ellison QC’s report into police corruption in the Stephen Lawrence investigation, the Home Secretary last week announced that a public inquiry would be held to investigate the conduct of undercover officers in the Special Demonstration Squad. I previously wrote that it was dangerous to view the undercover policing revelations in isolation or as a relic of the past, and it is therefore good to see that people are now connecting the dots rather than viewing this as a scandal which relates to the Stephen Lawrence case only. Two weeks ago the Campaign Opposing Police Surveillance was launched, bringing together a range of victims including the Stephen Lawrence campaign, the victims involved in the spycops litigation, environmental protesters and blacklisted union workers, and calling for an end to insidious undercover surveillance.
The police’s climbdown is good news but should be treated with caution. The campaign continues to build momentum. A demonstration will take place outside the Royal Courts of Justice on Tuesday 18th March at 9am.