Women face fresh legal battle over secrecy

This legal action against the police (brought by women who were deceived into long-term intimate relationships with undercover officers) will face a new fight against secrecy later this month, just days after a year-long fight against human rights claims going to a secret court.

Later this month the women will face an attempt by the police to have their common law claims of “deceit, assault, misfeasance in public office and negligence” struck out – with the police claiming that their asserted “Neither Confirm Nor Deny” policy prevents them from answering questions, disclosing any documents or giving evidence, and therefore they say they will be prevented from having a fair trial.

Not only this, but the police are also applying, in the alternative (i.e if the strike out application fails) for orders:
1. releasing them from standard disclosure obligations (so they don’t have to provide any documents to the claimants or their lawyers)
2. that the identities of each claimant and each police officer and each witness in the proceedings must not be disclosed.

Some months ago, two of the women involved in the case made the difficult decision to waive their anonymity in relation to these deeply personal experiences, so they could speak out publicly about what had happened. Now the police are now applying to silence their voices by having them made anonymous again. The clear picture from this application is that the police are attempting to cover up these scandalous operations and prevent the public from hearing or understanding what went on.

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Additional Notes:

1. The hearing will take place on either 20 or 21 November – the date will be confirmed by the courts closer to the time.

2. Jenny Jones of the London Assembly this week voiced criticism of Bernard Hogan-Howe, the Commissioner of the Metropolitan Police over what these court battles are “putting the victims through” – key points here.

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Metropolitan Police criticised for what they are “putting the victims through” in court battles

Jenny Jones of the London Assembly this week heavily criticised the Commissioner of the Metropolitan Police, Bernard Hogan-Howe over the Met’s handling of this case and the entire issue. The following points of her criticism are worth noting:

The commissioner constantly assures the people elected to scrutinise him that he wants as much transparency on this issue as possible, but he is paying his lawyers to act otherwise. The only opaqueness in this is created by him.

I should like to see a resolution which would give the public confidence and end the confusion. The commissioner should make clear that what has happened was a breach of policy and law, he should say sorry and stop putting the victims through this court case. He should tell the public they can and should expect better in the future from the police. He should stop using thousands of pounds of public money to pay for a QC, junior barrister and a team of solicitors to fight this case.

The full article can be found here.

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Statement re today’s Appeal judgment

Below is the full text of a public statement from three of the women in this case. These three women, alongside three other claimants, appealed against their human rights claims being sent to a secret court. This statement is in response to the judgment on that appeal as handed down today at 10.30am, and it outlines two key decisions made by the Appeal judges.

Public Statement: Tuesday November 5th 2013

The Court of Appeal has today decided against us in the first part of our appeal, namely our attempt to have our human rights cases against the police heard in open court, and have upheld the decision that the claims should be heard by the shadowy and secretive Investigatory Powers Tribunal (IPT). [1] 

However, we welcome the clarity from the Court of Appeal that the actions of the police were intrusive and amount to a breach of Human Rights. They said:

“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.”  

 
However, despite this recognition of the extreme gravity and potentially abusive nature of this technique, they ruled that the only forum that can adjudicate on the human rights violations, and the “necessity and proportionality” of its uses, is the IPT.
 
The second part of our appeal was successful, which lifts the stay on High Court proceedings, allowing the common law part of the claims to proceed. We welcome this decision, with which the court recognises our “right to have [our] claims heard in open court in accordance with procedures which have been developed and designed to provide a fair route to a just result.” However, we are very disappointed that human rights abuses by the police are not subject to the same fair route to justice. 

The civil claims being brought before the High Court may now be our only access to justice.  However, the approach of the Metropolitan Police to this litigation has shown that they intend to obstruct our access to truth and justice by any means necessary, regardless of costs. They have stated that they will apply for ‘closed materials proceedings’ in the event of claims reaching the High Court, and they are currently applying to strike the other five claims in our case out of the High Court on the basis of their wish to ‘neither confirm nor deny’ that the men involved were undercover officers. [2] 
 
In allowing the High Court stay to be lifted for the common law part of our case, the court has recognised the severe limitations of the IPT procedure.  They described the original decision by Mr Justice Tugendhat to allow the IPT to take precedence as “flawed and plainly wrong”, and described the IPT as being a forum that “…is ill-suited to the determination of claims that involve many issues of fact relevant to both liability and damages.” recognising that hearings before the IPT…

“…may take place in the absence of the applicants; applicants have no  right to the disclosure of evidence relied on by the opposing party or  to know the case against them; there is no right to cross-examine  opposing witnesses or to representation or funded representation; there  is no right to a reasoned judgment and no right of appeal.”

 
It is alarming then that the human rights claims aspect of our case will proceed to the IPT. The judges’ conclusions also highlight the extreme shortcomings of the RIPA legislation, stating that “There is no doubt that, in enacting RIPA, Parliament intended to override fundamental human rights” The Act purports to protect our rights but in fact exists only to override them. 

We remain painfully aware that the contradictions and obstructions that surround our fight for justice continue. Last week the College of Policing re-iterated the words of other senior police officers by stating that undercover police entering into intimate sexual relationships with those they are surveiling is morally reprehensible and should be banned. Yet this week the Court of Appeal decision would seem to indicate that RIPA, the legislation covering these issues, is capable of authorising such relationships.   
 
It is surely now time for the public to demand a thorough overhaul of legislation that can effectively allow state agents to abuse people and then limit the scrutiny of their actions to a secret court process.

The IPT is an affront to the principles of natural justice, and has only upheld a handful of claims in it’s history [3] while the RIPA legislation is deeply flawed and requires a total overhaul if human rights in this country are genuinely to be respected. 

NOTES: 
1 This hearing formed a part of the legal action against the police by women who were deceived into long-term intimate relationships by undercover officers. Read an outline of the legal battle so far.
2 The police’s application to strike out the claims will be heard in the High Court on the 20th or 21st November 2013
3 Alan Travis Time to review the surveillance tribunal, The Guardian, 2nd August 2010

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Appeal over secret court – judgment expected 10.30am Tues 5 November

Further to the Court of Appeal hearing last month (over whether the human rights claims of three of the women will be heard only by a secret court), we’ve heard that the Appeal judgment will be handed down at 10.30am tomorrow morning (Tuesday 5 November 2013) . At that point the three women will issue a statement, which we hope to upload to this website as soon as possible.

For an understanding of what this is all about, see today’s blog post explaining the twists and turns of the case so far.

As ever, thank you to everyone who has been following the case, and to everyone who has sent or voiced support for the women as they face this latest legal hurdle.

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The case so far – twists and turns – UPDATED

stayinformedThanks 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.

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, the Human Rights 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?

The five women in this case who can’t make human rights claims in the UK were scheduled to have their first day in court this month. Update: this has now been scheduled for mid-March 2014.

At this stage, only these five women are taking forward common law claims. The other three women (who are also making the human rights claims which have been sent to the secret court) may be bring their common law claims soon. 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. Eventually it is hoped that the full span of the police activities will be under scrutiny – over two decades’ worth – rather than only the activities up until 2000 – making it much harder for the police to argue that the intrusions are confined to the long-distant past or were isolated incidents, rather than an institutionalised pattern of abuse.

7. So what’s happening at the hearing in March over the common law claims?

Yet again, the police are trying to put blocks in the way of this legal action. The hearing in March (postponed from 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.

To keep updated about developments in this case, please follow us on facebook, twitter, and/or sign up to our supporters email list (see top right of this website). If you are a journalist or blogger, send an email request to be added to the press list: contact#@#policespiesoutoflives.org.uk (remove hashtags which are there to prevent spam)

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. It was further updated on 24 January 2014 with the new date of the NCND hearing, and to correct erroneous information which suggested that all 8 common law claims would be affected by that hearing. We apologise for any inconvenience caused by this temporary error.

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