Summary of Pleadings filed over Human Rights abuses committed by undercover police.
The pleadings, filed in April by Kate Wilson, in her case at the Investigatory Powers Tribunal, claim that the police violated her Human Rights when they deceived her into a long-term, intimate relationship with an undercover police officer, Mark Kennedy (MK). If it is successful, it will finally give clarity as to whether sexual relationships between undercover officers and members of the public under are unlawful.
What is the claim trying to achieve?
The claim, firstly, seeks a declaration that the Claimant’s rights under Articles 3, 8, 10, 11 and 14 European Convention of Human Rights (ECHR) were violated. Secondly, it is seeking a declaration that the legal frame work of RIPA has neither sufficient clarity nor sufficient safeguards that might make RIPA authorisations of undercover policing operations be “in accordance with the law”.
Claims around Article 3
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
MK’s decision to deceive Ms Wilson into a long-term intimate and sexual relationship amounted to inhuman and degrading treatment of her under Article 3 ECHR. He actively maintained that treatment over a considerable period of time, either to maintain his cover, or obtain intelligence, or for his own gratification. He invaded her bodily integrity, debased her, showed complete disregard for her human dignity, deeply degraded and humiliated her, grossly interfered with her sexual autonomy and caused her intense mental suffering.
MK knew that sexual consent had been fraudulently obtained, and would never have been given if she knew his true identity, yet he made every effort to prolong the sexual relationship, and ensure it was deeply intimate and emotionally involved. Recent case law makes it clear that deception can vitiate consent to sexual intercourse, and, whether or not the deception perpetrated by MK on KAW would amount to rape in criminal law, it significantly impaired her sexual autonomy and diminished her human dignity. Ms Wilson’s chances of discovering the deception were minimal, because it was based on a false identity, created with all the support, resources, money and false documents provided by the police, who failed to issue any guidance, training or supervision or take any steps to prevent it, and who either knew and/or authorised this tactic, or failed to identify and act upon it or remove MK from his undercover role.
Everyone has the right to respect for his private and family life, his home and his correspondence.
The long-term, intimate sexual relationship constituted the most grave interference with Ms Wilson’s right to private life for which there was no justification under Article 8 ECHR. MK invaded her home, mind, body and family. In addition, her right to privacy was also infringed by the extensive presence in her life of at least 6 UCOs between 1998 and 2010, and probably longer. Ms Wilson had relationships of varying degrees with MK, Jim Boyling, “Jason Bishop”, “Rod Richardson”, “Lynn Watson” and “Marco Jacobs”. Together this amounts to long-term and extensive state interference in her private life.
Article 8 is a qualified right, however neither the intensity of the romantic relationship, nor the length of time, scale or number of interferences can be deemed to be proportionate or necessary based on the need to gather intelligence on protest movements in a democratic society, or the activities of Ms Wilson herself.
Articles 10 & 11:
10: Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
11: Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
MK and the other UCOs interfered with Ms Wilson’s private life while she was expressing her political views and exercising her right to join movements that supported those views and to protest in favour of those views. It thus unjustifiably infringed her rights to freedom of expression and association under Articles 10 and 11 ECHR.
Furthermore, the discovery of the true identities of MK and the UCOs and her justified fear of surveillance and intrusion has had a chilling effect on her ability to exercise those rights, and has deterred and restricted Ms Wilson’s political activities.
The ECHR has emphasised that the right to freedom of expression is an “essential foundation of a democratic society” and a “basic condition for its progress and for the development of every man” and that freedom of assembly is a “fundamental right in a democracy and… is one of the foundations of such a society”
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any grounds such as sex, race, colour, language, religion, political or other opinion.
The risk of being deceived into one of these undercover relationships was one which disproportionately affected women; the failures to prevent it thus had a discriminatory effect which cannot be justified under Articles 3 and 8 ECHR read with Article 14 ECHR.
The majority of UCOs are men, and all those known to have formed long-term sexual relationships targeted women, thus women are disproportionately affected by the police’s failures and abuses. Furthermore, the impact of such relationships on women is more severe, because they risk pregnancy and its consequences for their body, health and future life; or because the relationship and the considerable distress caused in the aftermath occupies a significant period of the woman’s childbearing years, and decreases her chances of having children.
The failings of RIPA:
The existing legal frame work, namely sections 26 and 29 of RIPA and the associated statutory instruments and Codes of Practice, has neither sufficient clarity nor sufficient safeguards to satisfy the requirement under Article 8 ECHR that might make RIPA authorisations of undercover policing operations be “in accordance with the law”.
RIPA establishes a hierarchy of powers. The powers considered to be most intrusive are available in more limited circumstances, to fewer public bodies and subject to more stringent requirements than is the case in relation to the powers that are considered to be less intrusive. In descending order of intrusiveness:
(i) interception of communications
(ii) intrusive surveillance
(iii) demands for decryption
(iv) CHIS (Undercover officers)
(v) directed surveillance
(vi) acquisition of communications data.
The three powers considered most intrusive require warrants or authorisations provided by the Secretary of State, a Surveillance Commissioner or a judge; authorisation may be sought only by a core of investigating authorities (such as the intelligence services, the police, HMRC and SOCA); authorisation may be sought only for the purpose of national security, the prevention or detection of serious crime and the economic well-being of the UK; and there is a statutory requirement that those authorising the use of the power must consider whether the information could reasonably be obtained by other means.
By contrast, for the three powers considered to be the least intrusive, which include the use of Undercover Officers, there is no requirement for warrants or prior approval and they can be authorised by relatively low-ranking officials in a wide range of public authorities, and for a wide range of purposes such as non-serious crime, public safety and public health.
Judge Tugendhat has stated that the relationships described in the civil claims would amount to “the gravest interference with their fundamental rights recognised by the common law”, and that sexual relationships established or maintained covertly pursuant to RIPA could violate Article 3 ECHR. Yet there is neither in RIPA, nor in the Codes of Practice published on the use of CHIS under section 71 RIPA, any mention at all of the use of sexual relationships or sexual conduct by undercover officers, still less provisions about when, whether and how such a technique might be used.
This has resulted in considerable public confusion on the part of the police and the Home Office as to whether and when sexual relationships could ever be used as an undercover intelligence technique. The Home Affairs Select Committee stated in its interim report dated 26 February 2013 (para 11) that “there is an alarming degree of inconsistency in the views of Ministers and senior police officers about the limits of what may and may not be lawfully authorised..” and that “the current legal framework is ambiguous to such an extent that it fails adequately to safeguard the fundamental rights of the individuals affected.”
We therefore hold that RIPA was not written to be able to authorise sexual relationships for undercover police officers, nor does it prevent or safeguard against them, and it must be rewritten.