Since we launched our first legal case in 2011, women involved in Police Spies Out of Lives have been campaigning to ensure nothing like this can happen to other women again. In recent years, however, there has been an onslaught of new legislation that does nothing to protect women’s rights nor the right to protest free of interference from the State – quite the opposite in fact. We set out here some of the areas where we are calling for legal reform.
CHIS ACT / COVERT HUMAN INTELLIGENCE SOURCES (CRIMINAL CONDUCT) ACT – MARCH 2021
The Centre for Women’s Justice, End Violence Against Women, Rights of Women, and JUSTICE, among others have all spoken against the dangerous and unfettered powers outlined in the Covert Human Intelligence Sources (Criminal Conduct) Act 2021.
As outlined by Lord Stewart of Dirleton, “…the Bill amends the Regulation of Investigatory Powers Act 2000 to provide an express power to authorise CHIS to participate in conduct that, but for the authorisation, could be criminal. This is known as a criminal conduct authorisation. The effect of an authorisation is to make the conduct lawful for all purposes”.
In light of recent news items about institutional misogyny in the police, parliamentarians must be engaged with this issue and commit to reforming this Act to ensure limits are placed on what can be authorised.
1. WHY WE BELIEVE THE ‘CHIS’ ACT MUST BE REFORMED
Since we first launched civil cases against the Metropolitan Police Service (MPS) in 2011, it has become clear that undercover officers have used intimate, sexual relationships as a standard tactic to infiltrate ‘target’ groups over a period of nearly fifty years. In order to prevent this happening to others, we have campaigned using strategic litigation, drawing public attention to this abusive practice and its impact, and have argued for a parliamentary review of the Regulation of Investigatory Powers Act 2000 (RIPA) which failed to protect us. In 2013 we gave evidence to the Home Affairs Select Committee, and in 2014 we made submissions to the consultation on new CHIS codes of Practice. In 2021, in the ruling of KATE WILSON v (1) COMMISSIONER OF POLICE OF THE METROPOLIS (2) NATIONAL POLICE CHIEFS’ COUNCIL, the Investigatory Powers Tribunal (IPT), concluded that five of Kate’s human rights were breached by undercover officers from the MPS, including Article 3 (Prohibition of torture) of the European Convention on Human Rights.
The Covert Human Intelligence Sources (Criminal Conduct) Act (or CHIS Act as it has become known) enshrines in law the very wrongdoing and criminality we have exposed.
The most recent Code of Practice claims that authorisations must be necessary, proportionate, and in compliance with the European Convention on Human Rights. However, in reality the current safeguards are wholly inadequate. This is because the Act would allow a range of public bodies, including the police, to grant CHIS, like those undercover officers currently being investigated, with potentially broad authorisations to commit offences which would be “lawful for all purposes”, with no statutory limit on what may or may not be authorised. There exists, therefore, wide scope for abuse with limited recourse for victims – many of whom will be unaware of the crimes committed against them.
2. WOMEN’S HUMAN RIGHTS: NOW LEGALLY VIOLATED
In 2015, Metropolitan Police Assistant Commissioner Sir Martin Hewitt apologised to seven spied upon women, saying “I acknowledge that these relationships were a violation of the women’s human rights, an abuse of police power and caused significant trauma.”This acknowledgment was important but such relationships must be prohibited in law to prevent a recurrence of similar abuse. Without this specificity, interpretation of the law can be warped by institutional prejudice and discrimination.
We are told that the Human Rights Act (HRA) will protect us from such abuses. We do not agree, and it seems neither does the Undercover Policing Inquiry[1] which published its interim report in June 2023.
The HRA became effective in 2000 in the UK, after which undercover officers (UCOs) such as Mark Kennedy, Marco ‘Jacobs’, James ‘Straven’, Jim Boyling, Carlo Soracchi and Rob ‘Harrison’ were deployed covertly, conducting sexual relationships with multiple women connected to their target groups. Neither RIPA nor the HRA protected these women. The most recent case revealed in the Guardian in September 2023 occurred in Avon and Somerset Constabulary where ‘Mary’ was deceived into a nineteen year relationship by an undercover officer with whom she had a child. She discovered in 2020. The HRA and RIPA did not protect ‘Mary’.
Our civil cases have been forced to settle out of court and our criminal cases have been effectively blocked by the Crown Prosecution Service (CPS) claiming these abusive relationships were based on ‘genuine feelings’. Only Kate Wilson has so far successfully been able to pursue her case in the Investigatory Powers Tribunal. The IPT found the UCO deployments into the lives of Kate and her friends to be disproportionate, unnecessary and a breach of her human rights under Articles 3 (Prohibition of torture), 8 (Right to respect for private and family life), 10 (Freedom of expression), 11 (Freedom of assembly and association) and 14 (Prohibition of discrimination) of the European Convention on Human Rights, given domestic effect through the HRA.
The CHIS Act provides for little, if any, judicial or independent oversight or protection. As it now stands, the police and security services act not only as investigators, but as judge and jury. This legislation reaches far wider than political activists. It puts at risk people who may think this Act has nothing to do with them. For example, it will enable an undercover officer (or informer) to legally embark on an intimate, sexual relationship with any person who happens to be considered of use in infiltrating a target group. Maybe a woman living across the road from a pub where the group meet? Perhaps the sister of one of its ring leaders? More ordinary women – often vulnerable women in working class communities – will have their human rights violated as they are written off, like us, as ‘collateral intrusion’.
3. RIGHT TO REDRESS: NOW DENIED
The Act denies complainants like us any right to redress, even where authorisations are exposed to have been wrongly issued. The legal redress some of us have received has been hard won and deserved. It doesn’t replace the years of trauma or loss of opportunity to have children, but it has at least recognised some of what we experienced. Several women affected are still fighting difficult civil claims. The idea that women in the future who were to find themselves in our situation have no access to legal redress – however difficult such litigation might be – is undemocratic and unjust.
4. INSTITUTIONAL SEXISM, MISOGYNY & ACCOUNTABILITY
Since the murder of Sarah Everard, the serial rapes and sexual assaults by David Carrick and other horrific stories of violence against women, there has been a public conversation about institutional misogyny in the police. When eight of us brought the case in 2011, we shared our stories to reveal a clear picture of this same sexism and misogyny: an assumption that it was acceptable to use women as dispensable props to shore up officers’ fake identities, for sexual gratification or as a gateway into a target group. This culture impacts on the attitudes and behaviours of all undercover units not just those which infiltrate political groups.
The secrecy of undercover work lends itself to abuse since much ‘intelligence gathering’ information about the deployment will never be revealed or tested in a court of law. The actions of officers in the SDS and NPOIU demonstrate how apparently difficult it is for covert deployments to be effectively managed and overseen to avoid such human rights violations. The law must provide women with this protection.
5. UNDERCOVER POLICING PUBLIC INQUIRY: 2015 – present [current report date: 2026]
On November 2nd 2020, after more than five years since it was established, the Undercover Policing Public Inquiry began. This inquiry came about as a direct result of the exposure of CHIS wrongdoing by campaigners and journalists.
In spring 2021, during Covid, the CHIS Act was rushed through parliament in an unusually speedy fashion. It appears the goalposts have been moved, and that the Home Office has signalled that the findings and recommendations of the Public Inquiry will not matter.
6. LIMITS TO AUTHORISATIONS
Legislation must include limits to authorised criminal acts. The argument that such specificity creates a checklist for criminals to test a suspected informant is not tenable. CHIS already have the defence of necessity for such circumstances, and this could be set out within an updated Act to prevent any future abuses, making sure that the harm which we suffered never happens again.
We welcomed the cross-party amendments to the Act which protected the sexual integrity of a person[2]. We seek a commitment from parliamentarians to make these amendments after the next General Election. We urge the following also be included in future amendments:
“CHIS are expressly forbidden from entering into intimate or sexual relationships whilst in their covert persona.”
7. ACT NOW
The CHIS Act places state operatives officially above the law. The abuses they have perpetrated against women like us will continue to be sanctioned and authorised. A society that allows for authorised murder, sexual violence and torture is one that is brutalised and dangerous. If we live in a democracy, the law should protect human rights not violate them. Please support a change to this law.
Raise it with your union branch using this model motion and use this template to write to your MP.
- [1] ‘We are keenly aware that in Tranche 4 we will be receiving evidence about a unit whose members had specific training and operated under the statutory framework imposed by the Regulation of Investigatory Powers Act 2000. Despite these developments we know that deeply problematic activities continued.’ https://www.ucpi.org.uk/wp-content/uploads/2023/02/20230216-CTIs_T1_Closing_Statement.pdf
- [2] Tabled in House of Commons: Amendment 8 – Clause 1, page 3, at end insert ‘Nothing in this section justifies – …. (c) violating the sexual integrity of an individual;’
FURTHER INFORMATION
House of Commons Library Briefing Paper Number 8660, 13 September 2019 Undercover policing in England and Wales By Joanna Dawson, Jennifer Brown. Please note, this document was downloaded from https://researchbriefings.parliament.uk/ in September 2019 but has since become available. We are interested to know why it was removed.
[1] https://www.bbc.co.uk/news/uk-34875197
[2] https://publications.parliament.uk/pa/bills/cbill/58-01/0188/amend/covert_rm_cwh_1012.pdf p.5 [Cross-party amendment to put express limits in the Bill – Insertions to Clause 1, page 2, line 36]
SEX BY DECEPTION
A new report advocating change to the laws on consent and deception is a welcome contribution to a debate that is more complicated than it might first seem.
On January 18th 2023, we attended the Criminal Legal Reform Now Network’s launch where Harriet Wistrich explained our cases, in particular that of ‘Monica’, that are referenced in the report.
In December 2022, we submitted our response to the Crown Prosecution’s consultation about sex by deception which seemed primarily concerned with deception by gender. We believe, however, that deception as to gender cannot be looked at in isolation from other forms of deception in sexual relationships.
For those who have followed our campaign for a while, you will know that we are clear on this: our relationships with undercover officers were not consensual. You will also know that the CPS told us we were wrong and the officers had no case to answer because ‘genuine feelings’ were involved. And then in December 2018 that the courts rejected Monica’s judicial review and upheld the CPS decision.
In a parallel universe, it seems, in May 2021 during his evidence to the Undercover Policing Inquiry, ex-undercover officer Vincent Harvey who had a deceitful relationship with ‘Madeleine’ admitted that he knew ‘Madeleine’ would not have consented to a sexual relationship with him had she known who he was:
Q: Would “Madeleine” have slept with someone she knew to be an undercover police officer?
A: No.
[See: https://www.ucpi.org.uk/wp-content/uploads/2021/05/20210511-ucpi-t1_p2-evidence_hearings-transcript.pdf]
The deception perpetrated by undercover police violated our right to sexual autonomy and resulted in severe emotional and psychological harm to many of us. Our ‘consent’ to sexual activity with those men was fraudulently obtained. They knew that we would never have consented to sex with them had we known who they really were. Their deception removed our ability to meaningfully consent – our freedom to make decisions based on our own priorities and values.
The application of the law relating to consent is confused and inconsistent and its implementation has failed to protect some types of victims and allowed many perpetrators to escape justice. For this reason, we are pleased to see lawyers engaging with this issue and proposing change. We have some concern, however, with a couple of details. In particular, clause 4A 1(d) and 4A (3), as follows:
4A. Inducing a person to engage in sexual activity by deception
- (1) A person (A) commits an offence if—
- (a) A deceives another person (B);
- (b) A intends by his deception to induce B to engage in sexual activity;
- (c) B engages in sexual activity;
- (d) B’s decision to engage in sexual activity is induced by A’s deception; and
- (e) A has no reasonable excuse for deceiving B.
And:
(3) Where evidence is provided of a reasonable excuse for A’s deception, it will be for the prosecution to prove that there was no reasonable excuse.
We worry this ‘reasonable excuse’ would be a get out of jail free card for undercover cops & other covert human intelligence sources (CHIS). ‘A’ may have a reasonable excuse for deceiving ‘B’, but that shouldn’t be relevant to having sex and it feels like 4A 1(d) & (3) are muddying the waters.
We understand the need to create space for a defence but we have bitter experience of the Met police’s misogyny, lies and self-preservation instinct. We think the officers could argue that infiltrating our groups was a reasonable excuse to deceive their ‘legitimate targets’; that the sex was an add-on extra and that their ‘reasonable excuse’ means they are not culpable of this offence.
We know the guidelines say no relationships these days and we know we’ve had an apology. But with the lack of limits in the CHIS act (which fails to specifically prohibit rape, murder or torture), we fear that state-perpetrators of sex by deception might use this clause to wriggle their way out of being found guilty of a crime. Again.
State involvement in the deception we were subjected to is what makes our cases unique. But that doesn’t mean there aren’t lots of them. We know of more than fifty women deceived into sex by policemen employed by Special Branch (SB). The SDS and NPOIU – the SB units who cultivated these spycop abusers – are approximately 5% of undercover policing in the UK. So how are the other 95% of undercover police behaving? What scrutiny is there of these deployments? How many more women have been deceived by on-duty police officers wearing their own clothes?
Like everyone else we’re shocked and horrified by recent stories of rape and murder by uniformed officers. The institutional misogyny in the so-called elite units and elsewhere is clear for all to see. If this is how the uniformed officers behave, what is going on undercover?
It’s time for the laws on consent to change but this law must apply to perpetrators including those employed by the state: undercover police, agents of the security services and their informers must be stopped from acting as a law unto themselves. Without this line in the sand, we have no faith that state-sponsored sexual abuse will stop.
POLICE, CRIME, SENTENCING & COURTS BILL
The Police, Crime, Sentencing and Courts Bill is legislation with huge scope. Some of its most concerning proposals focus on protest, criminalisation of trespass and the strategy for tackling serious violence.
The Bill extends the police’s already extensive powers, creates new offences, and targets demonstrations. It fundamentally restricts our freedom of assembly and expression, and undermines our ability to stand up to the State and make our voices heard.
From our experience as activists spied on by undercover police, and from the evidence in the first tranche of the public inquiry into undercover policing (UCPI), it is clear that state control of protest is nothing new. This latest piece of legislation is its latest attack.
We are fiercely opposed to this bill.
For further information about the bill, read Liberty’s briefing document here.
