The government held a public consultation on proposals to update their codes of practice relating to undercover officers (known in these codes as “Covert Human Intelligence Sources”). The draft codes and the consultation document can be viewed HERE. The consultation closed on Thursday 27 March 2014. What follows below is the submission from the 8 women who are bringing this case:
We are a group of 8 women bringing a legal action against the Commissioner of the Metropolitan Police arising from the intrusion into our lives by undercover officers, and we are responding to the consultation on proposals to update the Covert Human Intelligence Sources Code of Practice and the Covert Surveillance Code of Practice.
The following points for the consultation are made without prejudice to our view that there are profound structural flaws within RIPA, which suggest that the whole Act requires a radical overhaul. Nor does our participation in this consultation constitute tacit acceptance of the use of undercover policing against political dissent. We simply wish to try and ensure that the abuses we experienced cannot happen again.
We note that despite the controversy over the issue of undercover relationships in the past couple of years, the Codes of Practice fail to make any mention of intimate and sexual relationships.
On your website it states that “both codes of practice have greatly improved control and oversight of the way public authorities use covert investigatory techniques, in order to protect our right to privacy.” Having had our privacy intruded upon to a huge and damaging degree we feel that these guidelines fail to address the issues raised by our claims, and fail to offer any increased protection to the public.
The changes proposed to the Codes of Practice are not sufficient to prevent the kinds of abuses that have been perpetrated by undercover officers like Mark Kennedy and Marco Jacobs, who were operating under very similar Codes of Practice. It is irrational and represents a dereliction of duty for new guidelines to ignore this behaviour, which has been called “unacceptable and grossly unprofessional” by Jon Murphy, head of ACPO (January 2011).
In the light of inconsistent statements by senior police and ministers** on the subject of sexual relationships, a duty is owed by the government to the public (and to officers) to ensure the regulations are clear. The situation as it stands currently gives free reign to officers and their handlers, and in view of the fact that women have been disproportionately affected by these relationships, a failure to introduce measures to prevent further abuse, amounts to institutional sexism.
** Inconsistent statements on the policy in respect of sexual conduct by undercover officers can be found detailed here.
PROPOSED ADDITION TO CODES OF PRACTICE
In our view, in order to provide protection to the public against this abuse, the Codes of Practice need to incorporate a clear statement so officers know from the start of their deployment that sexual and intimate relationships while undercover are not acceptable. We propose that the following statement be added to the text of para 2.13 (p7):
“Officers are expressly forbidden from entering into intimate or sexual relationships whilst in their undercover persona.”
Such a statement is necessary for the following reasons:
1) Intimate and sexual relationships by undercover officers concealing their real identity from the other person/s in the relationship/s represent a clear violation of the right to respect for private and family life (Art 8) and the right not to be subject to inhumane and degrading treatment (Art 3). When used by officers infiltrating campaigning and political organisations, they also represent a violation of the right to freedom of expression (Art 10) and freedom of assembly and association (Art 11).
2) Intimate and sexual relationships by undercover officers concealing their real identity from the other person/s in the relationship/s causes serious long-term harm and psychological trauma to those persons and others close to them.
3) Such relationships additionally harm the officers’ families and the officers themselves.
4) Intimate and sexual relationships by officers concealing their true identity from other person in the relationship amounts to a gross invasion of an individual’s fundamental common law right to personal security.
5) The tactic as it has been used, plainly has had and will have a discriminatory effect on women and is thus prohibited by Article 14 ECHR.
6) Under Section 74 of the Sexual Offences Act 2003, a person can only consent to sex if she “agrees by choice, and has the freedom and capacity to make that choice”. Recent case law adds strength to the argument that undercover officers would be committing sexual offences if they enter into a sexual relationship. (Assange v Swedish Prosecution Authority  EWHC 308 and R v McNally  2 Cr.App. R.28). It has also been suggested by Chief Constable Mick Creedon in Operation Trinity Report 2 that offences of Misconduct in Public Office may apply. This means that sexual relationships cannot be permitted under these codes, whatever the level of authorisation. This needs to be made clear.
7) Sexual relationships may produce children and have done in at least two of the reported cases. This means that the tactic poses a risk to women’s bodies and could also have a profound effect on the rights of a child as contained in the UN Convention on the Rights of the Child (UNCRC). Article 7 of the UNCRC requires children to be given the right to know their parents. It is difficult to see how the use of a tactic which carries with it the risk that a child will be born to an undercover police officer who will disappear into thin air at a certain stage in the child’s life could be compatible with the UNCRC.
8) Conversely, where relationships are long-lasting, and the officer is unwilling to have children, they have an effect on a woman’s right to have children, as protected by the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), since women’s fertility is so much more short-lived than that of men.
9) There is clearly a disproportionate use of the tactic against women. The failure to provide any guidance in relation to sexual relationships itself has a discriminatory impact on women because it makes it more likely that their rights will be unjustifiably interfered with. The impact on women also gives rise to the need to conduct an equality impact assessment in relation to the publication of any new Code of Guidance. No such Equality Impact Assessment has to our knowledge been produced.
1) Article 3 rights are absolute or unqualified human rights – it is not possible to authorise someone to violate an unqualified human right under any circumstances. We note that in a recent High Court judgement, Justice Tugendhat stated that a physical sexual relationship, which is covertly maintained, is more likely to fall into the category of degrading treatment, “depending on the degree and nature of the concealment or deception involved”.
2) Article 8, 10 & 11 rights are qualified rights, but interference with qualified rights is permissible only if:
a) there is a clear legal basis for the interference with the qualified right that people can find out about and understand.
We note that there is nothing in law which states that if a police officer suspects an individual of involvement in a crime or with a political movement, that officer is entitled to have a sexual relationship with the person to try to find out.
b) the action/interference is necessary in a democratic society.
Sexual and intimate relationships cannot be said to be necessary – It was asserted by Nick Herbert in June 2012 that “to ban such actions would provide a ready-made test for the targeted criminal group to find out whether an undercover officer was deployed among them.” We believe this to be a ludicrous argument designed to allow abuse to continue. There are a multitude of reasons why any individual might decline to become intimate with another person. Such reasons are given in every day life and would not lead to an assumption that the person declining was an undercover officer.
In any event, such an argument would not be tolerated in respect of murder or child abuse, so why should it be tolerated in respect of abuse of women?
Further a defence of necessity and self-defence already exists in British law – therefore any officer genuinely in fear of his or her life and forced by circumstances into breaking the prohibition would be able to argue this in their defence.
c) the action/interference is proportionate to what is sought to be achieved by carrying it out. The action or interference must be in response to ‘a pressing social need’, and must be no greater than that necessary to address the social need. Given the level of invasion of privacy and the serious psychological harm caused by such relationships they would clearly fail the hurdle of proportionality.
3) The rights of women to autonomy in reproduction are protected by the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), Article 16(1) of which provides: States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:
(a) The same right to enter into marriage;
(b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent;
(c) The same rights and responsibilities during marriage and at its dissolution;
(d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount;
(e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights.
4) Article 3 of the UNCRC provides that “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” Article 7 states: “The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents.”
5) German Police internal guidelines expressly forbid the use of intimate or sexual relationships for the purpose of gathering information because this would violate basic privacy rights (“Kernbereich privater Lebensgestaltung”). This applies to undercover investigators as well as informants employed by the federal authorities. If it is possible to ban this tactic in another European country without risking a “ready-made test” for a targeted group then there is no reason not to implement such a ban here.
SECTION ON COLLATERAL INTRUSION (p12)
In our experience the depth of the intrusion into our lives also meant a deep intrusion into the lives of family members and close friends. For example, undercover police officers “infiltrated” deeply emotional family gatherings such as funerals, weddings and birthday celebrations. The psychological harm inflicted, not only on us, but on close members of our family (including infirm, elderly relatives) cannot be justified.
Such intrusion is referred to in the guidelines as “Collateral Intrusion” and, perversely, its authorisation appears to require less rigorous tests than intrusion into the lives of “suspects”. Collateral Intrusion is, it seems, a euphemism for violating the fundamental human rights of people who are not even the specific subjects of surveillance, without any real consideration of the psychological damage that such deep deceptions might cause.
As can be seen from some of the authorisations for the activities of Mark Kennedy, it was considered that any “like minded activist” was a valid target for infiltration, and so further authorisation was not sought for their inclusion into the operation, regardless of their relevance to any investigation (and despite such an approach being a clear interference with Article 10 & 11 rights). It is also evident from documents that have come to light thus far that the extended family of political activists were also considered ‘fair-game’. The Codes of Practice have not altered in any meaningful way to ensure that this behaviour does not continue.
In the same way that we don’t consider that forming intimate sexual relationships could ever be considered necessary or proportionate, it is always wholly inappropriate for a police officer to insert themselves into extended families, in the way that being part of long-term relationships would necessitate.
In our view every individual whose Article 8 Human Rights may be breached by an operation should be afforded the respect of having the merits of that intrusion specifically considered and recorded, including the specific reasons why it is considered necessary and proportionate.
LEVELS OF AUTHORISATION
In terms of intrusiveness, entering into deceitful long-term relationships and/or moving into people’s homes and becoming party to the most intimate details of their private lives is quite clearly more intrusive than the interception of post and telephone calls, and the positioning of recording devices in people’s homes or cars. The authorisation requirements should therefore be at least as stringent. It is inconceivable that despite increases in levels of authorisation provided for in these codes of practice, it is still the case that a phone tap needs greater authorisation than a CHIS.
It is still the case that whilst ‘Warrants signed in person by the Secretary of State, authorisations from the Secretary of State or prior approval from a Surveillance Commissioner or judge’ are required for what are considered the most intrusive methods of surveillance, it is not a requirement for the deployment of Covert Human Intelligence Sources. Whilst it is never acceptable to form intimate long-term relationships whilst operating undercover, it is still plainly absurd to consider a CHIS less intrusive than a phone tap in many cases.
To assist with understanding the impact of this type of intrusion on people’s lives, we attach our evidence presented to the Home Affairs Select Committee, as well as our Letter before Claim. Given this evidence it is clear that the most intrusive methods of surveillance used to date are not adequately dealt with by RIPA. These Codes of Practice should be changed to ensure that the abuses we have suffered would not be allowed in future.
This public consultation is taking place in the shadow of a consistently obstructive approach by the police to any public criticism. Their attitude to our cases has been to refuse to provide a properly pleaded defence or standard disclosure, even refusing to confirm or deny that the officers involved were in fact working for the police. Combine this with the recent allegations of corruption and cover-ups surrounding inquiries into cases such as Stephen Lawrence and Hillsborough, amongst others, and revelations about the shredding of documents pertaining to controversial police activity, the public perception of police accountability is low.
It is clear that the Codes of Practice as they applied to the NPOIU and the Kennedy operation, and as they now stand, will not be enough to ensure accountability. They must not be used to provide immunity from public scrutiny when wrong decisions are made, as has so patently happened in the past.
We must never lose sight of the fact that intrusive surveillance violates fundamental human rights. The test of whether something is ‘proportionate or necessary’ alone hasn’t been sufficient to prevent abuse of position by undercover officers in the past.
The most rigorous standards possible must be applied to ensuring the enforceability of these guidelines and other laws relating to the use of CHIS. Those who make the decision to violate someone’s Human Rights under these Codes of Practice must be fully accountable to the public.
The above is a submission by the eight women who are bringing this case to a government consultation. The draft codes and the consultation document to which this submission refers can be viewed HERE. The consultation closed on Thursday 27 March 2014.