The ongoing ‘spycops’ litigation continued this week in the High Court, as a group of the victim claimants asked the court to order the Metropolitan Police to file a proper defence to their legal claim. Despite abandoning their attempt to strike out the claims entirely in March, the Met have continued to stick to a policy of NCND (neither confirm nor deny) in respect of all allegations, including matters as simple as the identities of the officers, and whether or not they were in fact employed as police officers at the relevant time.
Five of the eight claimants – who are bringing civil claims for assault, deceit, misfeasance and negligence in respect of SDS officers who deceived them into long-term relationships – therefore argued this week that the NCND defence should be struck out by the court and the defendant be ordered to plead a more substantive defence.
The Civil Procedure Rules (CPR) govern how parties must conduct themselves in legal proceedings. Rule 16.5 concerns defences, and states that a defendant must state which allegations he admits, denies, and is unable to admit or deny and requires the claimant to prove (a non-admission). NCND falls within this third category. The Claimants assert that the police cannot make non-admissions because they are plainly aware of whether the allegations are true or not, and should therefore be required to admit or deny.
The Claimants (represented by Phillippa Kaufmann QC, Charlotte Kilroy and Harriet Wistrich) argued on Thursday that the use of NCND is a balancing exercise for the court which follows that of public interest immunity – a doctrine which allows a litigant to withhold relevant evidence from proceedings on public interest grounds (a notable exception to the general rule which compels parties to disclose all relevant evidence, even if harmful to their own case.) They referred to the recent decision of Mohamed and CF v SSHD (2014) a case which sought to quash the claimants’ control orders and TPIMs. In that case the Court of Appeal stated:
“Lurking just below the surface of a case such as this is the governmental policy of “neither confirm nor deny” (NCND)…I do not doubt that there are circumstances in which the courts should respect it. However, it is not a legal principle. Indeed, it is a departure from procedural norms relating to pleading and disclosure. It requires justification similar to the position in relation to public interest immunity (of which it is a form of subset). It is not simply a matter of a governmental party to litigation hoisting the NCND flag and the court automatically saluting it.”
They also pointed to the case of Savage v Chief Constable of Hampshire (1997) – in which it was ruled that following a police informant’s own disclosure of his identity, the primary justification for maintaining his anonymity (in that case through public interest immunity) would “disappear”.
The Met assert that NCND is a policy which is regularly used to protect the safety of undercover officers and informants. (eg see their statement here re Hillsbrough) The Claimants accept this but believe that the facts of this case set it apart- a number of disclosures have in fact been made over the years which suggest that the Met themselves have not been adhering to the policy, leading the claimants to the conclusion that its use now is not to protect officers or operations, but simply to avoid legitimate scrutiny and ultimately deny justice to them as victims. They claim that the Court should look to what the Police have done, rather than what they say when assessing whether the public interest lies in secrecy or disclosure of the information.
In particular, the Claimants pointed out a number of instances in which the Met (or individual officers) have made disclosures, thereby departing from the NCND policy:
- ‘True Spies’, a three-part television documentary which was aired in 2002 (available on Youtube here, here, and here) – in which former undercover officers reveal specific details of their operations, including long-term deployment, legend building and the types of groups they infiltrated. Crucially the documentary was made with the co-operation and blessing of Met bosses.
- A legal claim by former SDS officer Peter Francis (who famously blew the whistle on the SDS in the ‘Undercover’ book and Channel 4 documentary last year) against the Met for psychological harm suffered after being withdrawn from his deployment. The claim was heard in open and at the time the Met did not seek to rely on NCND.
- When Met Commissioner Sir Bernard Hogan-Howe was questioned about Jim Boyling (who was undercover as Jim Sutton), rather than relying on NCND, publicly admitted that he was the subject of disciplinary proceedings – and therefore by implication, employed as a police officer at that time.
- Bob Lambert discussed his undercover deployment in a TV interview and publicly apologised to the claimant with whom he fathered a child whilst undercover. Lambert’s involvement was also confirmed in the Government-commissioned report by Mark Ellison QC.
It was submitted that disclosures such as these show that the NCND policy is not at all necessary for the protection of officers or operations. Indeed, Bob Lambert was deployed in the Animal Liberation Front, of which some members were eventually convicted of serious violent offences, and yet Lambert himself is now enjoying a successful career in academia – no harm had come to him or indeed any other officers.
Perhaps most crucially, it was pointed out that no operationally sensitive matters would need to be disclosed in any event. For example – in a claim for deceit, the claimants will need to show that the men were in fact police officers, that they lied about their true identities, and that the Claimants suffered loss. For misfeasance, it must be shown that the officers misused their powers. Confirmation or denial as to very basic information from the Police is all that is required – not, as the police claim, sensitive information which could jeopardise future operations.
In their defence, Counsel for the Police told the court once again that they are in a ‘difficult position’ – they need to be able to defend themselves properly, especially in light of the very high damages being claimed by the claimants. They assert that NCND strikes the right balance, permitting the claim to go ahead whilst being able to defend themselves.
The Met claim that their previous decision to abandon their attempted strike out of this claim was based on the announcement of an inquiry, the Ellison report, and the potential for criminal proceedings against officers – as relevant material may come to light which would change the landscape here. However they insisted that it would be wrong for the court to completely strike out their NCND defence.
It was claimed that the NCND defence did in fact comply with CPR 16.5 – as for the purposes of the rule “unable” to admit or deny should mean not just where the defendant does not know the answer but also where the defendant cannot admit or deny for reasons of public policy. Furthermore it was claimed that even if this argument fails, it would be wrong for the court to strike out the entire defence and instead, those allegations which have not been sufficiently dealt with should be taken to be admitted.
They cited the case of McNally (citation unknown, sorry!) which holds that material concerning the identity of informants is generally immune from disclosure as the public interest tends to weigh in favour of the police. The police’s judgment should be given credence when weighing up whether to allow NCND or grant PII.
In response to the case law principles raised by the Claimants, they suggested that the judges in Mohamed and CF (above) had reached a “surprising conclusion” which should not detract from the importance of NCND as a sound legal principle. They also say that, in spite of self-disclosure by an informant, there is still a legitimate interest in protecting those who may be associated with that individual.
The Judge did appear rather reluctant to accept some of the Defendant’s points, and was clearly frustrated when told that the Met were still not in a position to reveal exactly what evidence they would be ready to disclose. There was also a tense moment after the Judge repeatedly asked whether the Defendant would in fact view long-term sexual relationships in this case as appropriate or not. After a phonecall it was finally conceded by the Met that this would be inappropriate.
In the Claimants’ reply Ms Kaufmann pointed out that the Met appear to be couching their argument in terms which suggest that it is up to them to choose where to strike an appropriate balance of fairness – and that this is in fact the job of the Court. She reminded the Judge that there is a serious risk of miscarriage of justice which cannot be justified by concerns over jeopardising police tactics and future operations. She also raised the compelling point that the SDS is not even in operation any longer – making it difficult to see how information could be operationally sensitive – especially given that the Met did not use NCND in respect of Mark Kennedy even though the NPOIU (the unit under which he worked) is still in operation. Put simply, if it is ‘fairness’ the Met want then they should stop hiding and defend the claim properly.
Judgment was reserved. If successful the Claimants will move a step towards exposing to proper scrutiny the actions of those officers that turned their lives upside down. However there is still the potential for the Met to attempt to withhold evidence on the grounds of public interest immunity, ask for a closed hearing, or strike out the claim altogether at a later stage on the grounds that they are unable to defend themselves properly. It is clear that the Police will do all they can to prevent the truth coming out in this shocking case.