Absurdity and inconsistency of “NCND”

This case has been subject to various delaying and secrecy tactics by the police. Currently at issue is “Neither Confirm Nor Deny” (known as NCND) for short. Not long ago, we explained here why NCND should not stand as a response to this case, including the strike-out application. The police subsequently withdrew their application, while still insisting on NCND.

The absurdity and inconsistency of NCND has been ably illustrated by evidence that senior officers – right up to the Commissioner himself – didn’t seem to be aware of NCND until it suited them. Here are two examples:

 

Hogan-Howe in 2011

Commissioner of the Metropolitan Police, Bernard Hogan-Howe, appeared before a meeting of the Metropolitan Police Authority on 27 October 2011. At the meeting, Hogan-Howe was asked by members of the London Assembly about the activities of officer Jim Boyling (who used the name “Jim Sutton” whilst undercover).

It’s revealing that at this meeting (which took place shortly before the women’s legal action had been lodged) Hogan-Howe does not hesitate to confirm the identity of undercover “Jim Sutton” as one of his officers.  It’s hard to avoid the conclusion that the asserted ‘policy’ of NCND was subsequently adopted as a smokescreen by the police, as public scrutiny of undercover police abuses gathered momentum.

Here are some extracts from that meeting:

Dee Doocey (Assembly Member):
In relation to the undercover officer known as Jim Sutton, was the officer authorised by his superiors to lie to the court about his identity?

Bernard Hogan-Howe :
[…] In relation to the specific case that you referred to, the one that Dee refers to, one matter has already been referred to the IPCC relating to the appearance in court as a defendant of an officer using a false name in 1997. […] The IPCC has asked that we share with them any relevant documents to inform their assessment of the issues, and we have agreed to do so. There is, in addition, an ongoing Directorate of Professional Standards (DPS) investigation, that is an internal Metropolitan Police Service investigation, started in January of this year into a number of other allegations regarding the same officer – that is the officer I think who was named by Dee with the name of Sutton – which have also been subject to media reporting.

(A full transcript of the meeting can be seen here; the relevant passage begins on page 20.)

 

Sir Hugh Orde in 2011

The Association of Chief Police Officers (ACPO) are, along with the Metropolitan Police, one of the institutions against which the women are bringing this case.  The president of ACPO, Sir Hugh Orde, has also gone on record confirming the identity of an undercover police officer – in this instance, Mark Kennedy.  He discussed the deployment of PC Kennedy at length in a speech to Liberty in February 2011, again before the women’s legal action made it inexpedient for senior police officers to admit such things.  Orde’s speech can be read here.

 

Conclusion

As previously stated by the women’s support group, “Neither Confirm Nor Deny” should not be used as a shield to prevent any illegal and immoral activities by the police from ever coming to light. Effectively they are attempting to use NCND to evade accountability and avoid any genuine scrutiny of their actions.

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Secrecy Hearing – why “Neither Confirm Nor Deny” should not stand

At a court hearing this month, the police are applying to have the women’s case struck out, asserting that their claimed ‘policy’ of ‘Neither Confirm Nor Deny’ (NCND) means that they cannot comment or respond to the women’s claims – and therefore a trial should not take place because it would be unfair to the police.

It’s incredible that they are attempting to use their own refusal to disclose the truth about their actions to claim they then wouldn’t have a fair trial, and so deny any form of public trial or justice to the women who were abused.

Is there a ‘policy’ of NCND?

The women launched their legal action in December 2011, but it was not until June 2012 that the police first mentioned NCND in relation to the claim. You might think if there had been such a long standing policy this would have been highlighted in the first police response. No doubt the police do take measures to protect the identity of undercover officers and to ensure that operational methods are not widely disclosed, but that is not the same as a policy which prevents them from ever commenting, no matter what the circumstances.

Despite disclosure obligations required as part of the legal process the police have not provided any written document which sets out the purported policy. Such documentary evidence describing the policy, and requiring members of the force to comply with it, would ordinarily be expected given the stated purposes which the ‘policy’ serves.

The past shows no policy in place

In 2002 the Special Demonstration Squad co-operated with and gave their blessing to the TV series ‘True Spies‘ – former undercover officers and their supervisors were interviewed for the programme, and talked about operational undercover tactics.

In 2010, when Mark Kennedy was exposed by campaigners, the police confirmed to the media that he was an undercover officer. In 2011 they confirmed to the media that Jim Boyling was an undercover officer.

In October 2011 Met Police Chief Bernard Hogan-Howe was asked questions in relation to undercover officer Jim Boyling / Sutton at a meeting of the Metropolitan Police Authority. He answered and did not refer to a policy of NCND. Is it really plausible that the Met Chief would not know about or adhere to such a policy if it was in place?

These are just some examples which indicate that ‘Neither Confirm Nor Deny’ is not what the police claim it to be. In order to have the women’s case struck out the police are trying to present NCND as a policy that has no exceptions. They assert they have to adhere to this to protect the safety of officers. There appears to be little concern, however, about protecting members of the public from the actions of undercover officers and their commanders.

No hiding place

“Neither Confirm Nor Deny” should not be used as a shield to prevent any illegal and immoral activities by the police from ever coming to light. Effectively they are attempting to use NCND to evade accountability and avoid any genuine scrutiny of their actions.

The court hearing will begin on Tuesday 18 March 2014 – see here for details of a week of solidarity action. Supporters are asked to gather outside court on the first day of the hearing.

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Metropolitan Police criticised for what they are “putting the victims through” in court battles

Jenny Jones of the London Assembly this week heavily criticised the Commissioner of the Metropolitan Police, Bernard Hogan-Howe over the Met’s handling of this case and the entire issue. The following points of her criticism are worth noting:

The commissioner constantly assures the people elected to scrutinise him that he wants as much transparency on this issue as possible, but he is paying his lawyers to act otherwise. The only opaqueness in this is created by him.

I should like to see a resolution which would give the public confidence and end the confusion. The commissioner should make clear that what has happened was a breach of policy and law, he should say sorry and stop putting the victims through this court case. He should tell the public they can and should expect better in the future from the police. He should stop using thousands of pounds of public money to pay for a QC, junior barrister and a team of solicitors to fight this case.

The full article can be found here.

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“More consistency needed” – women respond to College of Policing’s comments re new training programme

Eight women taking legal action against police after being duped into long-term intimate relationships with undercover police officers say they can only give a cautious welcome to comments by Alex Marshall of the College of Policing , in which he declared that a “new training programme” would “explicitly” state “that sexual activity while undercover is not allowed”. The women say more consistency is needed, and that those affected by a 25-year pattern of abuse are still facing an unnecessarily bitter fight for justice.

They point out that Mr Marshall’s comments to the Home Affairs Select Committee represent just one of many contradictory statements from police sources. Bernard Hogan-Howe said last week that superior officers would “not condemn” past sexual conduct. Two weeks ago police lawyers claimed in court that parliament must have intended that sexual conduct by undercover officers could be authorised – a claim disputed by the women’s legal team.

Since June the women have been calling for ‘a clear and unambiguous statement that the abuse has ceased, and will never, in any circumstances, be permitted’; and ‘action and change to prevent these human rights abuses from ever happening again’. They say Mr Marshall’s statement about a new training programme represents just a small step.

A spokesperson on behalf of the support group for the legal action said: “It’s a welcome step but we must be cautious. We’re still not getting the consistency and action that the public is owed. We are talking about deep abuse of people’s lives, the violation of their human rights, that we know has taken place over the last 25 years. The abuses indicate a profound level of institutional sexism, and also institutional prejudice against members of the public who engage campaigning for social and environmental justice.

“There are still many questions which need answers: When does the new training start? What’s happening in the meantime? What about past transgressions? Are any officers facing disciplinary action – or are their superiors taking Hogan-Howe’s stance? Is there any protection for whistle-blowers? Will the police change their legal tactics – or are they going to continue to make their victims have to fight for justice?”

Additional links:

– A selection of contradictory police statements (part of HASC evidence February 2013)

Where We Stand – statement from the women and their supporters

Police Spies Out Of Lives – support group for women’s legal action

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Failures and frailty: initial responses and questions over Hogan-Howe comments

Following on from Bernard Hogan-Howe’s statement and comments, as we published earlier today, the solicitor for this case has made a response comment, and we want to raise some questions over what Hogan-Howe has said.

First of all, below is an extract of what we think we can hear in the video (note that this is not an official transcript).

Jenny Jones AM: The Mayor has said several times that sexual relationships should not occur in an undercover project.

Hogan-Howe: I also said at the same time, which has been misrepresented by a certain journalist, which was that when I acknowledged that human behaviour means you cannot prevent this, this is human behaviour and that I was saying this is what the boys do. I was not saying that at all. I was just saying that any policy cannot prevent human beings sometimes failing. What we need to know is if that should happen, an individual does have some sexual activity, that their manager knows and we react to that.

That is all I have ever said. Our policy is we should never send out people with this as part of our strategy. Does human behaviour sometimes allow this sort of thing to happen? Possible, but what we need is transparency when it happens. The individual involved lets us know and we deal with it as a problem, but do not condemn.

Response comment from Harriet Wistrich:

Solicitor Harriet Wistrich, who is representing the eight women in this legal action, said:

“To say rules cannot prevent ‘human beings failing’ is ridiculous. The best way of enforcing rules about not permitting officers to have sex is to make it an immediate offence of gross misconduct – that would send a clear message to any officers that if they experience such failures of human frailty, they will face the consequences, which might in turn strengthen their resolve to comply with the policy.”

Questions we are asking:

Here are just a few questions which we are asking, relating to one key comment from Hogan-Howe, relating to what he says should happen:

The individual involved lets us know and we deal with it as a problem, but do not condemn.

What does this mean? Is he saying they do not condemn the men for having feelings? What then do they do about the behaviour? Do those whom an officer should ‘let know’ have any understanding of the nature of the abuse they are hearing about? How do they deal with it? What are they doing to prevent members of the public from being ‘condemned’ to having their lives and bodies abused?

And a key question that we are asking, as we study these comments from such a senior law enforcement officer: Does he not know how you enforce rules for human frailty when it causes serious harm to others?

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