Today saw another preliminary hearing of the ‘Pitchford’ Inquiry, the public inquiry into undercover policing which is being chaired by Lord Pitchford.
There’s been a whole series of these preliminary hearings, where Pitchford hears from the different parties about how the inquiry itself should be conducted. What decisions Pitchford makes may have an enormous impact on the inquiry. Hanging in the balance is whether the inquiry will be a step on the journey to truth and justice, or whether it will just be a waste of time.
Today’s hearing was about ‘undertakings’, promises given to witnesses that their evidence to the inquiry may not be used to prosecute them. These promises – ‘undertakings’ – are not given directly by Pitchford; but rather he decides what undertakings he will request from the Attorney General. (See our undertakings briefing for an explanation of how it works and the background to today’s discussions.)
There’s a principle of non-self-incrimination already in place, and Pitchford emphasised at the start of the hearing that this is already one of the undertakings he will be requesting of the Attorney General:
"I have made undertakings that nothing said by a witness at the inquiry that can be used against them" #pitchford on #spycops
— Tom Fowler (@tombfowler) 27 April 2016
"If a witness is asked a question, and they feel to answer would incriminate them, they do not have to" #pitchford on #spycops
— Tom Fowler (@tombfowler) 27 April 2016
From this point onwards, two groups of core participants in the inquiry diverge.
State Core Participants (the police, state agencies) want everyone – all the witnesses – to be treated the same. (If that sounds like a bid for equality, be careful, because it’s not. One side knew what was going on, and had massive budgets and the apparatus of the state at their disposal, which they used to disrupt and undermine political movements, and the lives of those involved in the political movements. The other side did not know what was going on, are still being kept in the dark and are trying to rebuild their lives, while the things they were politically active about – for example, racism and climate change, to name but two – rage on. Go figure.)
On the other hand, the Non-State Core Participants (NSCPs) are asking that two sets of witnesses – the police and those they spied upon – be treated differently:
"Our standing position is it would be wrong to deny fundamental difference between state & non-state participants" Alex Bailin QC #spycops
— Tom Fowler (@tombfowler) 27 April 2016
The crucial difference being:
"This is not an inquiry into social justice campaigners and political activists. It is into #spycops" Alix Bailin QC to #pitchford
— Tom Fowler (@tombfowler) 27 April 2016
Or as it was formally put at the hearing:
"The examination of conduct of [non-state witnesses] is ancillary" to inquiry terms, says their QC Alex Bailin #spycops #pitchford
— Conrad Landin (@conradlandin) 27 April 2016
David Barr QC representing the inquiry quoting not case law "the focus must remain on the institution concerned" #spycops #pitchford
— Tom Fowler (@tombfowler) 27 April 2016
The Undercover Policing Inquiry – to give it it’s official title – is exactly that. It’s not an inquiry into what social and environmental activist do or don’t get up to. So the NSCPs are asking that evidence given by a spied-upon witness be given an extended undertaking: that it won’t be used to prosecute others either. This would mean that a witness could give evidence without incriminating their friends and comrades and leading directly to their prosecution. Given how the modus operandi of undercover officers was to embed themselves deeply into the lives, social networks and families of those they were spying upon, this is crucial.
In many cases the deploying of undercover officers into political movements is a smear in itself; many of those spied upon were not even remotely in danger of breaking any laws, and even with those who were:
"You should not leave with the impression that those who we represent were engaged in committing major crimes" #pitchford #spycops
— Tom Fowler (@tombfowler) 27 April 2016
Because the police have been so secretive (and, it should be noted, still have access to their own documents – the units which succeeded the now defunct Special Demonstration Squad have not been shut down, and no officers have yet been prosecuted), the inquiry will need the witness evidence of those spied upon for it to be any kind of Inquiry at all. So the Inquiry needs to secure the trust of the police’s victims.
And why would any of them have reason to trust any part of the establishment, given what has happened? At the hearing today, the need to secure the trust of those who were spied on was emphasised:
"Put yourself in the situation of a witness, what is proposed does not encourage them to give evidence" Alix Bailin QC #pitchford #spycops
— Tom Fowler (@tombfowler) 27 April 2016
(This comment was referencing what was being proposed by the State Core Participants.)
"Giving evidence on the most personal matters, given the invasion of private life that has already occurred may be too much" #spycops
— Tom Fowler (@tombfowler) 27 April 2016
Bailin: witnesses have significant fear of process. Will need to need to consider if process is one they feel able to engage with. #spycops
— Kate Thomas (@AKA_KatieT) 27 April 2016
"If inquiry process causes my group further distress & anxiety, there is a danger they may no longer take part". Alix Bailin QC #spycops
— Tom Fowler (@tombfowler) 27 April 2016
Pitchford will now consider his decisions. As the QC for the NSCPs said:
#Pitchford must "acknowledge a distinction [between police and victims] while still treating all parties fairly", says Bailin #spycops
— Conrad Landin (@conradlandin) 27 April 2016
As with previous hearings, a transcript of today’s will shortly be available on the Inquiry website, where the finer detail of the further discussions will be clear.
Meanwhile, in less than a week we will find out Pitchford’s decisions about the other crucial question for the inquiry: how much secrecy the police will be allowed. Decision due on May 3.
Thanks to: @tombfowler, @AKA_KatieT and @conradlandin
