Thanks so much to everyone who’s supported the case so far. Even though it’s still in its early days it’s turned into a complex legal battle. With every twist and turn the real issues could get obscured, so we’ve written this brief update of where things stand. This is ahead of yet another court hearing in the coming weeks, on either 20 or 21 November (please put these dates in your diary, as your support around those dates will be very much appreciated.)
Here are the key developments so far:
1. What laws are the police facing in this legal action?
The police are facing civil claims under two different kinds of law: common law, and a parliamentary act.
All eight of the women in this case are bringing claims under common law – for “deceit, assault, misfeasance in public office and negligence”.
They also all assert that their human rights were breached, including suffering “inhumane and degrading treatment” and disruption of their “private and family life, including the right to form relationships without unjustified interference by the state”.
Although all of the women had their human rights breached by what happened, only three of them are able to make claims under UK law. This is because the European Convention on Human Rights wasn’t incorporated into UK law until 2000, when the Human Rights Act was introduced. So only the women whose lives were disrupted after 2000 are able to bring claims under that law.
An important point to remember: while the European Convention hadn’t been incorporated into UK law until 2000, the UK has been a signatory to it since 1950, and it became effective in signatory states in 1953. So the women whose lives were abused before 2000 still had those legal rights, it’s just that UK courts won’t hear claims based on events before that date. Claims can be taken to the European Court, but not until all other UK remedies – right up to the supreme court – have been exhausted.
Just to make it clear: the police had the responsibility to respect the relevant human rights of all of the women, not just the three who can currently bring claims in the UK courts.
2. What’s the secret court thing about?
The Human Rights Act meant that people could bring human rights claims in UK courts, rather than going to the European court. But around the same time they also passed RIPA (Regulation of Investigatory Powers Act). RIPA covers how specific agencies of the state can engage in covert intelligence gathering.
The government was concerned that the right to privacy could be raised in relation to any intrusive surveillance by the state, leading to claims under the Human Rights Act, and didn’t want to secret intelligence gathering techniques and personnel to be exposed to scrutiny in open court. So as part of RIPA, it set up a special secret court – the Investigatory Powers Tribunal – to hear these claims away from the public eye.
3. What happened during the legal battle over the secret court question?
Firstly, in November 2012, there was a hearing in which the women’s lawyers argued that Parliament didn’t say anything in RIPA about intimate sexual relationships, and so hadn’t authorised police officers to have relationships. This was significant, because if the police weren’t operating within the powers that Parliament had given them in RIPA, then RIPA didn’t apply. And if RIPA didn’t apply, then the secret court of RIPA – the IPT – shouldn’t apply. With us so far?
At the hearing, Judge Tugenhat listened to these arguments, and also heard the police lawyers argue that maybe Parliament did mean to allow for sexual relationships. Tugendhat ‘reserved judgment’ (went away to have a think about what everyone had said) but in January he gave his judgment: yes to the secret court.
Not only that, but he said that the three women who were making human rights claims would have their common law claims (remember them?) put on hold until after the IPT court was done with the human rights bit.
But the women’s legal team applied to appeal his decision, and in mid-October 2013, the Court of Appeal had a hearing in which everyone put their arguments forward again – once more with feeling. Again, the three judges in the Court of Appeal initially “reserved judgment” (went away to think). But only a few weeks later, on 5 November, the Appeal judges gave their verdict.
4. So are the human rights claims going to the secret court?
Yes, they are. As soon as this was announced (on 5 November 2013), the women said in a statement: “We are very disappointed that human rights abuses by the police are not subject to [a] fair route to justice”. They also declared that “The IPT is an affront to the principles of natural justice” pointing out that it “has only upheld a handful of claims in it’s history.”
At the time of writing, the Appeal judgment is still fresh; we may yet provide further updates concerning the full implications of the commentary that the judges gave over RIPA and the IPT. For now it seems that they did not necessarily agree that Parliament had authorised sexual relationships, but more that Parliament had not formulated the the wording of RIPA enough to exclude sexual relationships. The judges also agreed that such an intrusion would be very serious:
“The establishing and/or maintaining of an intimate sexual relationship for the covert purpose of obtaining intelligence is a seriously intrusive form of investigatory technique. We do not think that it is in issue that it amounts to an invasion of an individual’s common law right to personal security and of a most intimate aspect of the right to privacy under article 8 of the Convention.”
RIPA is now under heavy criticism as a deeply flawed piece of legislation. Its flaws are having a massive impact on the people who are fighting for justice after having their lives abused by police.
5. Who are the other people affected by the secret court question?
As we’ve mentioned elsewhere on this website, this case of eight women is not the only case against the police over undercover operations.
Three other people, represented by Tuckers solicitors, are taking legal action against the police for a breach of their human rights by undercover officers engaging in intimate relationships. These breaches also took place after 2000, and so the courts have organised that hearings take place together. That makes six people, three of whom are part of this case, three of whom are a separate case, whose human rights claims against the police are now going to secret court.
You’d be forgiven for thinking, by now, that there should be some kind of venn diagram to keep track of all this. But the key thing is that the number of cases and claimants shows that a) there were a lot of undercover relationships, that b) a lot of breaches of human rights as a result and that c) people really shouldn’t have to be fighting all these complicated and costly legal battles to get justice over something so obviously and utterly wrong.
6. What’s happened about the common law claims?
These claims are now even more important than ever. Why? Well, first of all the five women in this case who can’t make human rights claims in the UK were already scheduled to have their first day in court this month. (It will be either the 20th or 21st of November – the precise date will not be known until closer to the time.)
But now, it’s not just those five women taking forward common law claims; now, it may be all eight of the women in this case – including the three who are also making human rights claims (which have been sent to the secret court). While Tugendhat had ruled that these three had to wait until after the IPT (secret court), the Appeal judges disagreed, and ruled that “The stay on the High Court proceedings will be lifted”. The women had won a small victory.
The immediate impact of this is not just the number of claimants in court, but the span of the police activities which will be under scrutiny. It will be over two decades’ worth – rather than just the activities up until 2000. The claims concern recent deployments alongside those of the eighties and nineties – making it much harder for the police to argue that the intrusions are confined to the long-distant past.
7. So what’s happening at the hearing in November over the common law claims?
Yet again, the police are trying to put blocks in the way of this legal action. The hearing in November is a new legal battle – yet again, over secrecy.
The police are applying to have the whole case (of common law claims) “struck out”; they are applying to the court to dismiss the women’s claims before any information is disclosed by the police. (They applied to do this with the human rights claims too. Tugenhat disagreed with them, and wouldn’t strike out those claims.)
Over the coming weeks, we hope to explain further what issues the women will be facing in this latest round, but for now we can simply outline the two main points that the police are arguing:
Firstly, they say they have a policy called “Neither Confirm Nor Deny” – known in short as NCND. (This means that if they are asked whether so-and-so person is an undercover cop, they won’t confirm it, nor will they deny it. They will keep you guessing.) They say that they need to have this policy in order to protect the identities of the “brave” police officers who undertake undercover roles. They say that they – the police authorities – can’t answer claims of “deceit, assault, misfeasance in public office and negligence”, because of this policy – and so they want the claims struck out.
Secondly, they will be asking the court that if the claims aren’t struck out, that proceedings only go ahead with a ton of secrecy measures in place. We hope to explain these further in the build-up to the hearing.
So, in summary:
At this stage it seems to us that the police are mainly interested in covering up the whole scandal of how women’s lives were abused by their officers, and in hiding from questions about why campaigners for social and environmental justice were subjected to such appalling intrusion and disruption. In short, it looks like police authorities are more interested in protecting their backs, than in protecting the rights and lives of members of the public from abuse by their officers.
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This post was updated on 4 November to include the timing of the Appeal judgement, and again on 5 November to include the outcome of the Appeal judgment.