PRESS STATEMENT: Deceived women seek end to police cover up

Today lawyers for the 8 women suing the police for intimate relationships with undercover cops have filed an application in the High Court seeking to stop the Metropolitan Police using ‘Neither Confirm Nor Deny’ (NCND) as a cloak of secrecy to hide behind.

The women have made this statement:

“Last week, shortly before a hearing which would have exposed the farcical nature of their claims to NCND*, the police publicly announced they were withdrawing their application to have our case struck out and said a hearing was unnecessary.  However, it later became clear that they were continuing to rely on NCND as their only defence against our claims, and had withdrawn their strike-out application only to prevent their own embarrassment.

“It is now well over two years since solicitors first wrote to the police setting out details of our claim and requesting answers from them, yet despite their legal obligations to provide disclosure and properly plead their case, nothing has been received in response except a meaningless NCND defence and various legal threats to strike out the claims or get them heard in a secret court.

“Despite overwhelming evidence proving the roles and identities of the undercover officers in question – much of which is in the public domain –  the police continue to refuse even to confirm that these men were Metropolitan Police employees.  As Justice Tugendhat said to the police at the hearing on 18th March: ‘plainly the present form of pleading if applied by anyone else… would be struck out, an ordinary defendant can’t say ‘I decline to confirm or deny.’

“The purpose of today’s application is to request that the Court bring an end to the obstructive and distressing approach taken by the police, and require them to plead a proper defence to the claims. If permitted, the police will  continue to use NCND to cover up the abusive, unlawful and unethical nature of their operations. As well as seriously aggravating the harm they have already caused us, their lack of transparency has serious implications for any meaningful public inquiry. How can we trust the police to be open with any inquiry when they have been so deliberately obstructive at every turn so far?”

* Two large files of evidence were submitted to the Court 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 (eg. 2002 BBC TV series True Spies); 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 these officers.

UPDATE: We understand that the court hearing for this application will be on 5-6 June 2014.

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Why the Human Rights claims should not go to secret court – legal points

stayinformedThe following is an extract from an earlier post by Harriet Wistrich, solicitor for this case, in which she explained the original Tugendhat judgement.

When deciding how to plead the women’s claims, we were aware of the risk that the police could argue that the Human Rights Act claims could only be heard in the Investigatory Powers Tribunal. However, we considered that there was a powerful argument as to why in this particular case that would not be appropriate.

Central to our submissions was an argument concerning an analysis of RIPA (the Regulation of Investigatory Powers Act 2000) and our interpretation of what the legislators intended. RIPA is, as Justice Tugendhat acknowledged, “a long and complicated statute”.

We argued that if you look at the legislation as a whole, it is clear that the forming of sexual relationships by undercover officers could never have been contemplated by Parliament as conduct that could be authorised within the regime they created. That is because there is a clear hierarchy within RIPA about what are regarded as the most serious and intrusive forms of conduct; that conduct requires a higher level of authority in order for it to be authorised.
Parliament decided that if the police want to tap somebody’s phone, this conduct has to be authorised by a Secretary of State.

On the other hand, Parliament decided that the activities of a CHIS (Covert Human Intelligence Source – which includes undercover police officers) only requires authorization by somebody of Superintendent level. Parliament furthermore decided that such authorisations only need to be reviewed annually.

We argued that if Parliament had contemplated the idea that authorisations of CHIS activity could include forming sexual relationships with targets, then this would have been explicitly provided for. Clearly such conduct is more intrusive than telephone tapping, involving very serious interference with the right to private life and the right to bodily integrity.
So if Parliament had contemplated such relationships being covered by RIPA it is likely that it would have required authorisation by – at the very least – a Secretary of State, rather than a police Superintendent.

Given the seriousness of the interference with fundamental rights occasioned by the use of such relationships, we argued that the principle of legality requires the statute to be interpreted as excluding the use of sexual relationships. Sexual relationships are not expressly provided for, nor can it be said that the statute refers to them by necessary implication.

This is an extract from a longer explanation by campaign solicitor Harriet Wistrich, ‘Explaining the judgment over secret tribunal’.

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Appeal against secret court – 15 & 16 October 2013

Press Release – 8 October 2013
  • Claimants fight for human rights cases to be heard in open court, not in secret tribunal
  • Last chance to ensure press and public scrutiny of Mark Kennedy’s police commanders over Human Rights Act abuses, amid judge’s “alarming” James  Bond  reference

On 15 and 16 October 2013 the Appeal Court will hear arguments seeking to overturn a decision which directed that human rights legal actions over undercover police relationships should be heard in a secret court.

When: Tuesday 15 October 2013 and Wednesday 16 October 2013, time tbc
Where: Court of Appeal, Royal Courts of Justice, Strand, London
Contact for comment: Harriet Wistrich of Birnberg Pierce and Partners – 0207 911 0166

The legal claims arise from women being deceived into long-term intimate sexual relationships by undercover officers who were infiltrating protest movements. One relationship lasted six years and all the claimants suffered significant psychological damage as a consequence of the deep intrusions into their private lives.
If the appeal fails, police commanders will escape press and public scrutiny over claims under the Human Rights Act, which prohibits ‘inhumane and degrading treatment’ and protects ‘the right to form relationships without unjustified interference by the state’.
The decision being appealed is that of Justice Tugendhat, issued in January 2013. This granted an application by the Metropolitan Police to send the Human Rights Act claims to a secret court – the Investigatory Powers Tribunal (IPT). The Met’s legal team had argued that that parliament had intended all cases involving complaints about undercover police to be heard in the IPT, but the claimants had disputed this, arguing that the deep intrusions of intimate sexual relationships fell well outside what Parliament had been legislating for.
IPT hearings take place in secret, with no right to see the evidence or cross-examine witnesses. Judgements given by the IPT do not provide any explanation for the decision made and there is no right of appeal. Survivors of the police violations, and their counsel, would be denied  any opportunity to participate in the proceedings.
The claimants submitted that since the legislation made no reference to undercover officers having intimate sexual relationships with those they were spying on, such invasive conduct had not been contemplated or  authorised by parliament. As such, the claims did not fall under the remit of the IPT.  In rejecting this argument Justice Tugendhat bizarrely referred to James Bond having relationships with women as justification for assuming that parliament had contemplated such conduct taking place.
Following Tugendhat’s original decision, Harriet Wistrich of Birnberg Pierce said “To take legal arguments from extreme fiction is alarming. James Bond committed a range of extreme unlawful acts, such as extra judicial killing, that Parliament would also have been aware of but did not need to legislate for”.
NOTES: 
a) Two groups of claimants are involved in this appeal. One group (represented by Birnberg Pierce & partners) are taking legal action against the Metropolitan Police and the Association of Chief Police  Officers (ACPO) over Mark Kennedy’s deployment, while the other group (represented by Tuckers) are taking legal action against the Metropolitan Police and South Wales Police over Marco Jacobs’  deployment.
b) The three women taking legal action over the actions of Mark Kennedy are part of a wider legal action involving 8 women who unknowingly had relationships with undercover police infiltrating political movements during a period spanning from 1987 to 2011. The full case highlights that the relationships were not caused by ‘rogue officers’ but were part of a pattern of institutionally sexist police attitudes and practices.
Further detail available via the following links….
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Explaining the judgment over secret tribunal by Harriet Wistrich

AKJ and others v The Commissioner of Police and others

This summary sets out what the judgment means and what implications it has for the case of the eight women (and others); Harriet Wistrich is solicitor for the eight claimants.

Background

Birnberg Peirce represent eight women who are bringing claims against the police but only three of their cases were the subject of this judgment.  That is because only three of the Claimants could bring claims under the Human Rights Act, which came into force in 2000.  Those who suffered violations by the police prior to 2000 only have remedies under the common law (in tort).  All eight claimants are bringing common law claims for deceit, misfeasance in public office, assault and negligence.  Only three are able to additionally bring claims under the Human Rights Act for breaches of Article 8 (the right to privacy and family life) and Article 3 (the right not to be subject to inhumane and degrading treatment) of the European Convention on Human Rights (ECHR).

When deciding how to plead the women’s claims, we were aware of the risk that the police could argue that the Human Rights Act claims could only be heard in the Investigatory Powers Tribunal, however, we considered that there was a powerful argument as to why in this particular case that would not be appropriate.

The legal framework

When the Human Right Act was introduced by the Labour government there were concerns that “legitimate” and “necessary” surveillance operations by the police and other state agents could be routinely challenged as a consequence of the incorporation of Article 8 ECHR into UK law.  Therefore the government passed the Regulation of Investigatory Powers Act (RIPA) for the purpose of regulating spying by the state to ensure that it was lawful.  In essence it provided a framework for authorizing a range of methods used by the state to conduct surveillance on potentially illegal activity.   Such surveillance covers a wide range of  activities from operations by secret intelligence services (MI5 and MI6), that of undercover policing (work by both undercover operatives and the use of informants) to the use of CCTV by local authorities. Provided such activity is correctly authorised in accordance with the statute and guidelines, then it will be lawful.

RIPA created the Investigatory Powers Tribunal (IPT) to consider complaints and cases involving Human Rights violations.  The IPT will normally hear cases in secret and when reaching a decision, it is not required to provide any reasons for its decision.  That decision cannot be appealed.  The logic of this is that if the activities of secret agents and the like were exposed to the public it could undermine their operational effectiveness and potentially put undercover operatives and informers at risk.

The case (AKJ and others)

The three Claimants who have claims under the Human Rights Act were all in relationships with Mark Kennedy.  Following the service of Particulars of Claim in their case, the police made an application to strike out their claims, or alternatively stay them on the basis that

(1) the High Court had no jurisdiction to hear the HRA claims because they are exclusively the province of the IPT and/or
(2) that the High court should strike out or stay the common law claims  because (a) it would be abusive or inappropriate to hear claims arising from the same set of facts when the HRA claims were being brought in the IPT or (b) because it would be unfair to hear the claims in open court because of their (alledged?) policy of “Neither Confirm Nor Deny” in relation to undercover officers.

The police, had in fact, argued in correspondence with Birnbergs that the claims of the other five women who could not bring HRA claims might also be appropriately heard by the IPT, although this was not the subject of this judgment.

At around the same time, three claimants (two women and one man), represented by Tuckers solicitors, who all had relationships/close friendships with another police spy, Marco Jacobs, also brought a claim pleaded in similar terms, raising issues under the HRA.  Their case was joined together with the Birnberg cases, thus the judgment concerns the claims of six Claimants altogether, five women and one man.

Our argument

We argued against the police application on a number of bases, but central to our submissions was a complex argument concerning an analysis of RIPA and our interpretation of what the legislators intended.  RIPA is, as Justice Tugendhat acknowledges,  “a long and complicated statute”.  We argued that if you look at the legislation as a whole it is clear that the forming of sexual relationships by undercover officers, could never have been contemplated by Parliament, when passing the legislation, as conduct that could be authorised within the regime they created.  That is because, there is a clear hierarchy within RIPA about what are regarded as the most serious and intrusive forms of conduct and that conduct requires a higher level of authority in order for it to be authorised.  The example that is often cited is that if the police want to tap somebody’s phone, then this conduct has to be authorised by a Secretary of State.  On the other hand the activities of a CHIS (Covert Human Intelligence Source – which includes undercover police officers) only requires authorization by somebody of Superintendent level.  Furthermore such authorisations only need to be reviewed annually.  We argued that if Parliament had contemplated that authorisations of CHIS activity could include forming sexual relationships with targets, then this would have been explicitly provided for.  Clearly such conduct is more intrusive then telephone tapping, involving very serious interference with the right to private life and the right to bodily integrity so if Parliament had contemplated such relationships being covered by RIPA it is likely that it would have required authorisation by at the very least a Secretary of State not a police Superintendent. Given the seriousness of the interference with fundamental rights occasioned by the use of such relationships, we argued that the principle of legality requires the statute to be interpreted so as to exclude the use of sexual relationships because they are not expressly provided for, nor can it be said that the statute refers to them by necessary implication.

Finally we challenged the police submissions that there was any basis within which the IPT could be said to be an appropriate jurisdiction for the common law claims.

The judgment

Justice Tugendhat sets out his conclusions at the very end of the judgment paragraphs 225 to 227:

1.     He finds for the police in that he considers the IPT should hear the HRA claims
2.     He finds for the Claimants in that the IPT cannot hear the common law claims
3.     He finds against the police in that he doesn’t consider that pursuing the common law claims arising from the same facts as the HRA claims would be an abuse of process, but he favours the police view that the IPT hearing should come before any High Court action (by these claimants).

There are some helpful and some very unhelpful parts of his judgment:

Paragraph 17, the judge states that on the assumption that the allegations pleaded are true, “it cannot be doubted that the claims made in the present action are very serious”.

Paragraph 92, he makes clear, that RIPA can have no application to “unqualified” rights[1] which include the right to life and the right not to be subject to torture and inhumane and degrading treatment.  Thus, you cannot authorise a CHIS to kill someone or torture them, whatever the nature of the operation (although an act of killing or seriously harming someone can be lawful, if there is a defence in common law – eg self defence or necessity (see para 85).

Paragraphs 156 he sets out the sort of conduct which he considers is incapable of being authorised under RIPA – “conduct which amounts to an interference with a fundamental right under common law or an unqualified ECHR right”

However, at paragraph 158, he rejects what he states is our submission that “the establishment and maintenance by a police officer of a sexual ..relationship for the purpose of obtaining information or access to information is …by its nature so degrading as necessarily to fall within Art 3…”
He rejects this on the basis that an intimate sexual relationship is too broad and uncertain a concept (para 159)

However, at para 160, he states that a physical sexual relationship which is covertly maintained, is more likely to fall into the category of degrading, “depending on the degree and nature of the concealment or deception involved”

In rejecting our argument that all sexual relationships by undercover officers are unlawful, the judge recalls a case (para 169) that he tried in the 1980s involving some female undercover police officers who went to a nightclub to gain intelligence about drug dealing and potentially arrest drug dealers.  In order to gain such intelligence they engaged in potentially sexual dancing with people at the night club.  He considers this conduct could constitute a “sexual relationship” but would not amount to degrading treatment.

At paragraph 177, he provides the example of James Bond, which has been picked up by the press as “ludicrous”. In essence he is saying that James Bond and other fictional accounts of spies who have sex with innocent victims, undermines our argument that Parliament could not have contemplated that this sort of conduct might be established by a CHIS.  They must have been aware that this was a possibility when they passed the legislation. (However, to take arguments from extreme fiction, is alarming, James Bond committed a range of extreme unlawful acts, such as extra judicial killing, that Parliament would also have been aware of but did not need to legislate for!)

At paragraph 207, the judge notes that after the hearing the Defendant changed their position on the argument that the police could not get a fair hearing of the common law claims because their policy of Neither Confirm Nor Deny in relation to Mark Kennedy could not be maintained.  This was as a result of us becoming aware that mark Kennedy was himself taking action against his former bosses in the High Court, a fact the police failed to mention at the hearing.  They subsequently accepted that the amount of information already in the public domain in relation to Mark kennedy could not sustain this argument.  More broadly (and in relation to the Tuckers Claimants), at paragraph 217, the judge states that the NCND policy “does not give the equivalent of an immunity from claims in tort.”

The implications of this judgment for the eight Claimants and what happens next.

It will be necessary to decide whether we can and whether we want to appeal the judgment in respect of the jurisdiction of the IPT for three of the claimants.  We need to consider if we have good grounds to appeal and whether we are able to obtain costs protection from an adverse result for the Claimants.  It is also possible that the police could apply to appeal against the judge’s decision on the common law claims.

In the mean time there is nothing to stop us proceeding with the claims on behalf of the other five Claimants, although, given the approach by the police so far, they may apply to strike out our case on different grounds.

 

——–

[1] Article 2 (the right to life) and  Article 3 are rights which cannot be interfered with, whereas Article 8 (amongst others) is a “qualified right” which means it can be interfered with to protect the rights of others or the wider public interest

 

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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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