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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Outrage as High Court Permits Secrecy over Undercover Policing

The High Court has today granted an application by the Metropolitan Police for a secret hearing over the claims brought against them under the Human Rights Act, arising from undercover officers engaging in intimate long term relationships with women whilst undercover.  The Claimants, who were involved in protest movements, were deceived into intimate sexual relationships by officers, including Mark Kennedy. One relationship lasted six years and all the Claimants suffered significant psychological damage as a consequence of those officers intruding deeply into their private lives. Lawyers for the women said that their clients are “outraged” at the High Court’s decision today that the claims should be heard in the secret Investigatory Powers Tribunal.

The Investigatory Powers Tribunal (IPT) is a little known tribunal set up under section 65 of the Regulation of Investigatory Powers Act (RIPA, 2000) to deal with claims brought under the Human Rights Act against the police and other security services.

Mr Justice Tugenhadt rejected the police submissions that the IPT was the appropriate tribunal for hearing common law claims also brought by the women (including for deceit and misfeasance in public office).  However, the common law claims can be heard in the open jurisdiction of the High Court, but will be put on hold pending the verdict of the IPT.

In his judgment, Mr Justice Tugendhat states that the actions of these officers must have been contemplated by legislators on the basis that

James Bond is the most famous fictional example of a member of the intelligence services who used relationships with women… fictional accounts (and there are others) lend credence to the view that the intelligence and police services have for many years deployed both men and women officers to form personal relationships of an intimate sexual nature (whether or not they were physical relationships) in order to obtain information or access.”

He did, however, say that if the allegations are true they are very serious.  He went on to say that physical sexual relationships, that are covertly maintained, may amount to inhumane and degrading treatment depending on the degree and nature of the concealment.  This is an important concession because by implication, these relationships could not be authorised under RIPA and would be unlawful.

The rules of the IPT permit the case to proceed with the women denied access to and unable to challenge police evidence, and being powerless to appeal the tribunal’s decisions.  Eight women, who are bringing a case together, were deceived into long term intimate relationships with undercover officers, who as part of the National Public Order Intelligence Unit (NPIOU) and its predecessor the Special Demonstration Squad, seemingly had no other brief than to gather information on political groups. So far, this has meant that unlike a criminal investigation, the actions of the officers and their undercover command structure have never been subject to court scrutiny or public hearing, despite serious concerns over human rights violations.

Harriet Wistrich of Birnberg Peirce said: “This decision prevents both the claimants and the public from seeing the extent of the violations of human rights and abuses of public office perpetrated by these undercover units.  The claimants have already suffered a gross violation of their privacy and abuse of trust by the police, if the case is dealt with by the IPT they will be denied access to justice and may never discover why they were thus violated by the state.

She read a short statement on behalf of the claimants:
We brought this case because we want to see an end to sexual and psychological abuse of campaigners for social justice and others by undercover police officers. We are outraged that the High Court has allowed the police to use the IPT to preserve the secrecy of their abusive and manipulative operations in order to prevent public scrutiny and challenge. In comparison, the privacy of citizens spied on by secret police is being given no such protection, which is contrary to the principles we would expect in a democratic society. It is unacceptable that state agents can cultivate intimate and long lasting relationships with political activists in order to gain so called intelligence on political movements.  We intend to continue this fight.”

The judgment can be read in full here.

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