New undercover guidelines contain absurd get-out-clause

The College of Policing published a draft ‘Authorised Professional Practice’ for Undercover Police. This is the first time that such Guidelines have been published, and it is welcome as previously the world of undercover policing has been completely opaque. It should be recognised, however, that  they have been forced to publish it by huge pressure for change from people affected by undercover infiltration, and the public at large. standwus-icon

Its contents are not hugely reassuring. Positively, they do state that intimate sexual relationships will never be authorised or used as a tactic:

“It is never acceptable for a UCO (undercover officer) to form an intimate sexual relationship with those they are employed to infiltrate and target or may encounter during their deployment. This conduct will never be authorised, nor must it ever be used as a tactic of a deployment.”

However they go on to give themselves an unnecessary and absurd get-out-clause, suggesting it is ok for an officer to have sex if his life is being threatened, or similar:

”If a UCO engages in unauthorised sexual activity for whatever reason (for example, they perceive an immediate threat to themselves and/or others if they do not do so) this activity will be restricted to the minimum conduct necessary to mitigate the threat. In such extreme circumstances UCOs must record and report this to the cover officer at the earliest opportunity. The authorising officer will be informed immediately and the circumstances investigated for welfare and training purposes, potential breaches of discipline or criminal offenses and to allow an appraisal of the operation.”

There is no need for this get-out-clause. It suggests there is enough grey area that officers just need to find themselves an excuse for committing these abuses. It risks enabling these abuses to continue.

It is also essential that these guidelines are not seen as enough. Many of the women, deceived by undercover officers into intimate sexual relationships, see the practice as tantamount to rape. The psychological abuse that ensues from it is devastating, and the police themselves have admitted it is an abuse of human rights. It therefore should be outlawed in legal statute. Voluntary guidelines like these are not enough. The police have shown that they cannot be trusted to regulate themselves. The absurd get out clause in these voluntary guidelines makes it all the more important to have it written in legislation. The infiltration of social justice movements and abusive relationships with female activists over many years show clearly we cannot trust their judgement on what is proportionate and necessary.

Outlawing relationships in statute would mean amending the regulatory power act, but actually we would like to see it completely rewritten. Legislation needs to prevent undercover policing abusing human rights. People have the right to a private and family life. They have the right to be free from degrading and inhuman treatment. There needs to be legislation to prevent this political policing, aiming to silence dissent, and to reinstate people’s right to freedom of expression, and of assembly and association.

These guidelines are in draft form, and they invite you to comment on them. Tell them to get rid of the get-out-clause, and to outlaw this behaviour in legal statute!

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PRESS RELEASE: Court to hear issues against Met police over SDS deployments, as women issue legal challenge to NCND

* Women’s legal action over undercover relationships
* Court hearing 5-6 June 2014, Royal Courts of Justice, Strand, London

On Thursday 5 June and Friday 6 June 2014, the main issues in a case against the Metropolitan Police over undercover relationships will be laid out for the first time in open court. The High Court will hear an application to require the Metropolitan police to drop their “neither confirm nor deny” (NCND) stance. NCND has been one of many delaying tactics used by the Met to maintain secrecy over the legal action against them, despite the very serious allegations that have been made by the Claimants.

Eight women are bringing common law claims of assault, deceit, negligence and misfeasance in public office; this hearing concerns five of the women. The officers’ deployments were part of the Special Demonstration Squad (SDS), which was infiltrating environmental and social justice campaign groups. Several officers entered into long-term relationships, causing lasting disruption and psychological damage.

Despite widespread public outcry over what appears to be a systematic pattern of abuse, the Metropolitan Police have not entered a defence against the claims, instead resorting to a series of delaying tactics and bids for secrecy, including their so-called Neither Confirm Nor Deny “policy” (NCND). The Met police withdrew their application to strike out the Claimants’ claims last March after the Home Secretary announced a public inquiry.

Harriet Wistrich, solicitor for the eight women said: “This will be the first hearing in open court when the main issues will be set out in the case against the Metropolitan police over the deployments of SDS officers. We will be providing detailed evidence of what the Claimants have discovered and what is already now known about the four undercover officers in the case which undermines the MPS’ reliance on NCND. NCND appears to be a smokescreen to cover up the extent of wrong-doing, and should not be permitted.”

For press enquiries, contact Susanna Thomas of Birnberg Peirce and Partners on 020 7911 0166.

NOTES:

1. Full background on this hearing is at https://policespiesoutoflives.org.uk/ncnd-5-6-jun/

2. Further background on NCND can be found at: https://policespiesoutoflives.org.uk/the-case-overview/legal-battles/neither-confirm-nor-deny/

3. Delaying tactics from the police included a strike-out claim on the basis of NCND – which was dropped at the last minute in March of this year. Two large files of evidence were submitted to the Court by the women’s lawyers to counter the strike out claim. These files detailed instances where the police had confirmed the identities of undercover officers; commented on operational tactics of these political policing units; show the identities of the undercover officers reported in the media; and where the women had meticulously compiled evidence demonstrating that they can show the true identities of the officers.

4. This hearing concerns five of the eight women; the other three women are also bringing claims under the Human Rights Act, including suffering “inhumane and degrading treatment” and disruption of their “private and family life, including the right to form relationships without unjustified interference by the state”. They are fighting a separate battle to stop their claims being sent to a secret court, the IPT.

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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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The case so far – twists and turns – UPDATED

stayinformedThanks so much to everyone who’s supported the case so far. Even though it’s still in its early days it’s turned into a complex legal battle. With every twist and turn the real issues could get obscured, so we’ve written this brief update of where things stand.

Here are the key developments so far:

1. What laws are the police facing in this legal action?

The police are facing civil claims under two different kinds of law: common law, and a parliamentary act, the Human Rights Act.

All eight of the women in this case are bringing claims under  common law – for “deceit, assault, misfeasance in public office and negligence”.

They also all assert that their human rights were breached, including suffering “inhumane and degrading treatment” and disruption of their “private and family life, including the right to form relationships without unjustified interference by the state”.

Although all of the women had their human rights breached by what happened, only three of them are able to make claims under UK law. This is because the European Convention on Human Rights wasn’t incorporated into UK law until 2000, when the Human Rights Act was introduced. So only the women whose lives were disrupted after 2000 are able to bring claims under that law.

An important point to remember: while the European Convention hadn’t been incorporated into UK law until 2000, the UK has been a signatory to it since 1950, and it became effective in signatory states in 1953. So the women whose lives were abused before 2000 still had those legal rights, it’s just that UK courts won’t hear claims based on events before that date. Claims can be taken to the European Court, but not until all other UK remedies – right up to the supreme court – have been exhausted.

Just to make it clear: the police had the responsibility to respect the relevant human rights of all of the women, not just the three who can currently bring claims in the UK courts.

2. What’s the secret court thing about?

The Human Rights Act meant that people could bring human rights claims in UK courts, rather than going to the European court. But around the same time they also passed RIPA (Regulation of Investigatory Powers Act). RIPA covers how specific agencies of the state can engage in covert intelligence gathering.

The government was concerned that the right to privacy could be raised in relation to any intrusive surveillance by the state, leading to claims under the Human Rights Act, and didn’t want to secret intelligence gathering techniques and personnel to be exposed to scrutiny in open court. So as part of RIPA, it set up a special secret court – the Investigatory Powers Tribunal – to hear these claims away from the public eye.

3. What happened during the legal battle over the secret court question?

Firstly, in November 2012, there was a hearing in which the women’s lawyers argued that Parliament didn’t say anything in RIPA about intimate sexual relationships, and so hadn’t authorised police officers to have relationships. This was significant, because if the police weren’t operating within the powers that Parliament had given them in RIPA, then RIPA didn’t apply. And if RIPA didn’t apply, then the secret court of RIPA – the IPT – shouldn’t apply. With us so far?

At the hearing, Judge Tugenhat listened to these arguments, and also heard the police lawyers argue that maybe Parliament did mean to allow for sexual relationships. Tugendhat ‘reserved judgment’ (went away to have a think about what everyone had said) but in January he gave his judgment: yes to the secret court.

Not only that, but he said that the three women who were making human rights claims would have their common law claims (remember them?) put on hold until after the IPT court was done with the human rights bit.

But the women’s legal team applied to appeal his decision, and in mid-October 2013, the Court of Appeal had a hearing in which everyone put their arguments forward again – once more with feeling. Again, the three judges in the Court of Appeal initially “reserved judgment” (went away to think). But only a few weeks later, on 5 November, the Appeal judges gave their verdict.

4. So are the human rights claims going to the secret court?

Yes, they are. As soon as this was announced (on 5 November 2013), the women said in a statement: “We are very disappointed that human rights abuses by the police are not subject to [a] fair route to justice”. They also declared that “The IPT is an affront to the principles of natural justice” pointing out that it “has only upheld a handful of claims in it’s history.”

At the time of writing, the Appeal judgment is still fresh; we may yet provide further updates concerning the full implications of the commentary that the judges gave over RIPA and the IPT. For now it seems that they did not necessarily agree that Parliament had authorised sexual relationships, but more that Parliament had not formulated the the wording of RIPA enough to exclude sexual relationships. The judges also agreed that such an intrusion would be very serious:

“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.”

RIPA is now under heavy criticism as a deeply flawed piece of legislation. Its flaws are having a massive impact on the people who are fighting for justice after having their lives abused by police.

5. Who are the other people affected by the secret court question?

As we’ve mentioned elsewhere on this website, this case of eight women is not the only case against the police over undercover operations.

Three other people, represented by Tuckers solicitors, are taking legal action against the police for a breach of their human rights by undercover officers engaging in intimate relationships. These breaches also took place after 2000, and so the courts have organised that hearings take place together. That makes six people, three of whom are part of this case, three of whom are a separate case, whose human rights claims against the police are now going to secret court.

You’d be forgiven for thinking, by now, that there should be some kind of venn diagram to keep track of all this. But the key thing is that the number of cases and claimants shows that a) there were a lot of undercover relationships, that b) a lot of breaches of human rights as a result and that c) people really shouldn’t have to be fighting all these complicated and costly legal battles to get justice over something so obviously and utterly wrong.

6. What’s happened about the common law claims?

The five women in this case who can’t make human rights claims in the UK were scheduled to have their first day in court this month. Update: this has now been scheduled for mid-March 2014.

At this stage, only these five women are taking forward common law claims. The other three women (who are also making the human rights claims which have been sent to the secret court) may be bring their common law claims soon. While Tugendhat had ruled that these three had to wait until after the IPT (secret court), the Appeal judges disagreed, and ruled that “The stay on the High Court proceedings will be lifted”. The women had won a small victory. Eventually it is hoped that the full span of the police activities will be under scrutiny – over two decades’ worth – rather than only the activities up until 2000 – making it much harder for the police to argue that the intrusions are confined to the long-distant past or were isolated incidents, rather than an institutionalised pattern of abuse.

7. So what’s happening at the hearing in March over the common law claims?

Yet again, the police are trying to put blocks in the way of this legal action. The hearing in March (postponed from November) is a new legal battle – yet again, over secrecy.

The police are applying to have the whole case (of common law claims) “struck out”; they are applying to the court to dismiss the women’s claims before any information is disclosed by the police. (They applied to do this with the human rights claims too. Tugenhat disagreed with them, and wouldn’t strike out those claims.)

Over the coming weeks, we hope to explain further what issues the women will be facing in this latest round, but for now we can simply outline the two main points that the police are arguing:

Firstly, they say they have a policy called “Neither Confirm Nor Deny” – known in short as NCND. (This means that if they are asked whether so-and-so person is an undercover cop, they won’t confirm it, nor will they deny it. They will keep you guessing.) They say that they need to have this policy in order to protect the identities of the “brave” police officers who undertake undercover roles. They say that they – the police authorities – can’t answer claims of “deceit, assault, misfeasance in public office and negligence”, because of this policy – and so they want the claims struck out.

Secondly, they will be asking the court that if the claims aren’t struck out, that proceedings only go ahead with a ton of secrecy measures in place. We hope to explain these further in the build-up to the hearing.

So, in summary:

At this stage it seems to us that the police are mainly interested in covering up the whole scandal of how women’s lives were abused by their officers, and in hiding from questions about why campaigners for social and environmental justice were subjected to such appalling intrusion and disruption. In short, it looks like police authorities are more interested in protecting their backs, than in protecting the rights and lives of members of the public from abuse by their officers.

To keep updated about developments in this case, please follow us on facebook, twitter, and/or sign up to our supporters email list (see top right of this website). If you are a journalist or blogger, send an email request to be added to the press list: contact#@#policespiesoutoflives.org.uk (remove hashtags which are there to prevent spam)

This post was updated on 4 November to include the timing of the Appeal judgement, and again on 5 November to include the outcome of the Appeal judgment. It was further updated on 24 January 2014 with the new date of the NCND hearing, and to correct erroneous information which suggested that all 8 common law claims would be affected by that hearing. We apologise for any inconvenience caused by this temporary error.

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Legal action against Metropolitan Police

Eight women deceived into long term intimate relationships with five separate undercover officers commence unprecedented claim against police

Birnberg Peirce and partners have commenced legal action against the Metropolitan Police on behalf of eight women who were deceived into having long term intimate relationships with undercover police officers. The five undercover officers* were all engaged in infiltrating environmental and social justice campaign groups between the mid 1980’s and 2010 and had relationships with the women lasting from 7 months and the longest spanning 9 years.

The women assert that the actions of the undercover officers breached their rights as protected by the European Convention on Human Rights, including Article 3 (no one shall be subject to inhumane and degrading treatment) and Article 8 (respect for private and family life, including the right to form relationships without unjustified interference by the state), The women are also bringing claims for deceit, assault, misfeasance in public office and negligence, and seek to highlight and prevent the continuation of psychological, emotional and sexual abuse of campaigners and others by undercover police officers.

After deceiving at least one woman into having a relationship with him, one of the officers, Bob Lambert, went on to supervise other undercover officers who had long term intimate relationships with campaigners. This, and the extended period in which these relationships were undertaken confirms that recently exposed police spies were not ‘rogue officers’, but were in fact part of an unacceptable pattern of engaging in long term intimate relationships (including embedding themselves in extended families) as part of the infiltration of environmental and other activist groups, which seems to have been condoned at high levels.

Through their collective experiences the women have identified a pattern that covers more than two decades of police operations and is therefore indicative of systemic abuse of female political activists involved in a range of different groups. Officers are given extensive training in how to spin tales, groom, deceive and embed themselves deeply in protest movements. After the women formed loving relationships with these men, they disappeared when their posting ended, leaving the women to cope with the trauma of not knowing whether or not the person they were in love with would return, not knowing if they should be worried or angry and trying to discover what was real and what was not. In one case where the officer re-appeared, his training enabled him to create a new deceit and further abuse the woman who had been left in a state of shock and trauma. She extricated herself with the help of Women’s Aid and left for Refuge with her children. The responsibility for the lasting damage this caused goes right back to the undercover operation by the Metropolitan police and the training they gave him in the art of duplicity.

The subsequent discovery that the men they had loved were in fact undercover police officers spying on them and others they knew was a horrifying experience, leaving the women with both a sense of violation and difficulties in trusting others and their own judgement. Discovering that the fundamentals of the relationship were lies has left them trying to comprehend how someone they shared dreams with, knew so intimately and trusted so deeply had never actually existed.

This abuse has had a severe and lasting emotional impact on those affected.

“We believe our case highlights institutionalised sexism within the police. It is incredible that if the police want to search someone’s house they are required to get the permission of a judge, yet if they want to send in an agent who may live and sleep with activists in their homes, this can happen without any apparent oversight!”

”We are bringing this case because we want to see an end to the sexual and psychological abuse of campaigners and others by undercover police officers. It is unacceptable that state agents can cultivate intimate and long lasting relationships with political activists in order to gain so called intelligence on those political movements.”

So far twelve inquiries have been set up in relation to undercover officers, however none of them are focussed on the human rights abuses perpetrated by the unit, none is independent and none of them are open and transparent.

* The five undercover officers are Mark Kennedy, Jim Boyling, Bob Lambert and two others who have not yet been exposed, known when undercover as John Barker and Mark Cassidy.

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