Outrage as High Court Permits Secrecy over Undercover Policing

The High Court has today granted an application by the Metropolitan Police for a secret hearing over the claims brought against them under the Human Rights Act, arising from undercover officers engaging in intimate long term relationships with women whilst undercover.  The Claimants, who were involved in protest movements, were deceived into intimate sexual relationships by officers, including Mark Kennedy. One relationship lasted six years and all the Claimants suffered significant psychological damage as a consequence of those officers intruding deeply into their private lives. Lawyers for the women said that their clients are “outraged” at the High Court’s decision today that the claims should be heard in the secret Investigatory Powers Tribunal.

The Investigatory Powers Tribunal (IPT) is a little known tribunal set up under section 65 of the Regulation of Investigatory Powers Act (RIPA, 2000) to deal with claims brought under the Human Rights Act against the police and other security services.

Mr Justice Tugenhadt rejected the police submissions that the IPT was the appropriate tribunal for hearing common law claims also brought by the women (including for deceit and misfeasance in public office).  However, the common law claims can be heard in the open jurisdiction of the High Court, but will be put on hold pending the verdict of the IPT.

In his judgment, Mr Justice Tugendhat states that the actions of these officers must have been contemplated by legislators on the basis that

James Bond is the most famous fictional example of a member of the intelligence services who used relationships with women… 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.”

He did, however, say that if the allegations are true they are very serious.  He went on to say that physical sexual relationships, that are covertly maintained, may amount to inhumane and degrading treatment depending on the degree and nature of the concealment.  This is an important concession because by implication, these relationships could not be authorised under RIPA and would be unlawful.

The rules of the IPT permit the case to proceed with the women denied access to and unable to challenge police evidence, and being powerless to appeal the tribunal’s decisions.  Eight women, who are bringing a case together, were deceived into long term intimate relationships with undercover officers, who as part of the National Public Order Intelligence Unit (NPIOU) and its predecessor the Special Demonstration Squad, seemingly had no other brief than to gather information on political groups. So far, this has meant that unlike a criminal investigation, the actions of the officers and their undercover command structure have never been subject to court scrutiny or public hearing, despite serious concerns over human rights violations.

Harriet Wistrich of Birnberg Peirce said: “This decision prevents both the claimants and the public from seeing the extent of the violations of human rights and abuses of public office perpetrated by these undercover units.  The claimants have already suffered a gross violation of their privacy and abuse of trust by the police, if the case is dealt with by the IPT they will be denied access to justice and may never discover why they were thus violated by the state.

She read a short statement on behalf of the claimants:
We brought this case because we want to see an end to sexual and psychological abuse of campaigners for social justice and others by undercover police officers. We are outraged that the High Court has allowed the police to use the IPT to preserve the secrecy of their abusive and manipulative operations in order to prevent public scrutiny and challenge. In comparison, the privacy of citizens spied on by secret police is being given no such protection, which is contrary to the principles we would expect in a democratic society. It is unacceptable that state agents can cultivate intimate and long lasting relationships with political activists in order to gain so called intelligence on political movements.  We intend to continue this fight.”

The judgment can be read in full here.

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