Summary of April 5th hearing ruling

This is a summary of the key points from Pitchford’s ruling from the latest preliminary hearing in the Undercover Policing Inquiry.

We are prioritising speed of getting this summary out, to help people understand the ruling, rather than giving analysis on what it means for the progress of the Inquiry.

Obtaining evidence/Restriction order applications from all officers
·         He has rejected the Met’s submissions that it’s unnecessary to seek witness statements from all SDS and NPOIU field and cover officers, managers, back room staff, senior officers and commanders who were responsible for undercover operations (para 165).
·         He doesn’t think it would be possible for the Inquiry to be more selective in its request for RO applications from SDS and NPOIU officers (para 170). It is his view that ‘the Inquiry was fully justified in announcing its intention to seek evidence from all former officers employed by the [SDS].’ (para 173)

 Risk assessments
·         While he doesn’t regard the preparation of risk assessments as essential to his consideration of RO applications – he believes that the steps now being taken by the Met to sort risk assessments is ‘sufficiently robust to deserve and require testing.’ (para 183)
·         He accepts the police submissions that there is a value to the Inquiry in receiving a reasoned opinion of risk from a police officer – and, he thinks this will have an important positive impact on undercover officers’ confidence in the RO process. (para 185)
·         He concludes that ‘the time has not yet come when I should dispense with police generated risk assessments. But I make it clear that further shortcomings in the risk assessment process may well lead to a change of practice by the Inquiry, especially if such shortcomings result in unacceptable delay.’ (para 186)
·         He is ‘satisfied that a properly conducted risk assessment exercise conducted by experienced senior officers independent of the issues under consideration is the fairest, most reliable and most secure means of ensuring that the relevant material is placed efficiently before the Chairman for decision on applications for restriction orders.’ (para 235)

 Cover names
·         He rejects NSCP suggestion that there should be a presumption, rebuttable only by compelling evidence, that cover names should be disclosed.
·         He doesn’t accept that the Met have deliberately attempted to delay the process (para 189), and even if this was the case, this wouldn’t change the balancing exercise he has to undertake to determine RO applications.
·         However, he agrees ‘with the general view among core participants that the early release of cover names, where that can be achieved without significant risk of harm or damage, should be a priority for the Inquiry, as indeed it has been to date. It now appears to be generally accepted that the disclosure of cover names is necessary, where possible, to enable core participants, witnesses and the public to participate effectively in the Inquiry.’ (para 191)
·         When an officer has retired from undercover deployment with the link between real and cover identity preserved, there is no obvious reason why the cover name should not be revealed – so long as steps are taken to ensure that the cover name is not later linked to the real identity.
·         He details circumstances where a cover name is likely to be suitable for release:
(i) When the cover name is already in the public domain (for example, when the officer has given evidence as an undercover officer using the cover name and special measures, or the officer has, anonymously, self-disclosed);
(ii) When, with the exercise of reasonable precautions by the officer, the cover name will not be associated with the real name and personal details of the officer; (iii) When, although exposure of the cover name might lead to revelation of the true identity of the officer (for example, by means of a photograph), the consequential risk of significant harm is slight. (para 199)

Real names
·         He dislikes the presumption suggested by the police that a real identity will only be disclosed in exceptional circumstances – he wants to make decisions on this issue on the basis of evidence for individual officers. (para 203)

Deceased officers
·         He doesn’t think there should be a presumption that deceased officers cover names should have exceptional treatment (cites need for public interest assessment, risk to third parties and need to deal sensitively with relatives of deceased). (para 207)
·         He doesn’t think that the Met have been deliberately obstructive (paras 162,

Role of NSCPs in relation to police applications for anonymity
·         He’s rejected NSCP submissions that NSCPs should be able to have a role in the process of determining police anonymity applications. The suggestion had been that closed applications for anonymity should be accompanied by an open application justifying the closed version, which NSCPs would be able to make representations on. He said this would be impractical and the Inquiry alone will determine what can be disclosed of the application. (para 211)

Disclosure of schedules of  deployment and organisations targeted
·         He rejects the NSPC request for this disclosure on the basis that he thinks the info would be used to prematurely identify officers or fuel ‘damaging speculation’ on the same (para 212).

Disclosure of special branch files to NSCPs (and presumably all other types of files, although not specifically mentioned)
·         Pitchford has asked for NSCPs to make written submissions on this issue. He says his preliminary view is that: ‘At first sight this submission appears to fall foul of the limited jurisdiction imposed on the Inquiry by the Inquiries Act 2005. The Inquiry has no jurisdiction outside its terms of reference. It may only admit evidence that is relevant to the terms of reference. It is tolerably well known that Special Branch obtained information about persons in whom it was interested from all sources available to it, public and confidential. The Inquiry cannot decide what evidence it will admit until it knows whether it is necessary to fulfil its terms of reference. The Inquiry cannot therefore decide upon admission and disclosure until it examines the material for relevance.’ (para 214)

Narrowing the scope of the Inquiry
·         His current view is that he should not ‘in any way exclude issues or limit the depth of the investigation.’
·         He notes that the ‘scope and ambition of the investigation are not responsible for the slow progress of the Inquiry thus far.’
·         However, once there is a clearer understanding of the overall picture, some issues will need to take precedence. (para 221)

 Funding additional counsel for NSCPs
·         He rejects submission that RLRs should be able to instruct separate counsel without reference to the Inquiry.
·         He also rejects submission that a second junior barrister should be permanently instructed to support Ruth (the current junior barrister)
·         He adds that he doesn’t understand why existing counsel couldn’t have made the arguments made by Kate Wilson and Helen Steel at the hearing as, in his view, the minority view was so close to that expressed on the behalf of the majority. (para 229)

Funding NSCP travel costs and RLR attendance at preliminary hearings
·         In general he is not willing to fund RLR attendance or travel costs for NSCPs to attend preliminary hearings as written submissions are published in advance, counsel and Tamsin (RLR co-ordinator) are funded to attend and hearings aren’t the best opportunity for CP instructions to be taken. In exceptional circumstances he will consider an application on its merits. (para 231)

Holding hearings at a different venue
·         He says its very unlikely hearings will be heard anywhere other than the Royal Courts of Justice.
·         He says the Inquiry will try to consult more in advance of hearings to ensure there is enough space. (para 233)

Met application for extension of time
·         He says he is clear that ‘the failure to meet deadlines was not deliberate and was not the consequence of a spirit of evasion.’ (para 234)
·         He is ‘satisfied that the Metropolitan Police Service now has in place arrangements calculated to meet the reasonable requests of the Inquiry for the processing of anonymity applications.’
·         He appears to be saying the Met’s current proposal for a timetable is unrealistic and he doesn’t want to impose a timetable which fails. (para 236)
·         He grants the application for an extension of time, and he is going to ask counsel to the Inquiry to meet with the Met to come up with a timetable, and he will issue directions within 21 days.

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