We aim to ensure that anyone following or supporting this case has an opportunity to understand the case and what happened. The people in these cases are taking legal action against the police under two different kinds of law, including common law.
Police have ceded common law claims
After five years, on Friday 15th January 2016, in a case being brought against them by Kate Wilson about her relationship with undercover officer Mark Kennedy, the Metropolitan Police stopped contesting liability, and asked for the judgment to be entered against them regarding misfeasance in public office, deceit, assault, and negligence. They have since taken this approach in other cases.
The implication of these judgments are that the actions of the officers were undertaken with the express or tacit knowledge of other police officers. Supervising and managing officers knew that they were abusing the power that they were given as an undercover police officers and their failure to act on this knowledge was unlawful and in abuse of their own duties as supervisors and managers of the officers’ undercover activities.
Another implication of the judgment is that, in circumstances where the police chose to use secret operations like these, they have a duty of care to the private individuals affected and are liable for any damage caused by their negligence.
What is common law?
What is a ‘tort’?
An important legal term to be familiar with when following this case (and other civil legal cases) is the word ‘tort’. A tort can be described as a civil ‘offence’. The person who commits the tort is legally liable for their action and the unfair loss or harm it causes. The claimant (the person who has suffered the harm or loss) brings a case in the civil courts against the defendant (the person who committed the tort); bringing a case in this way is commonly known as “suing”. Some torts can also be prosecuted by the state as criminal offences eg assault, deception.
Claims against the police are brought against the Chief Officer of Police for the area in question (or other employer if relevant eg the Association of Chief Police Officers), rather than against the individual officers. This is in keeping with the principle of vicarious liability (the idea that employers are jointly liable with their employees for wrongful acts of employees committed in the course of their employment). This is especially relevant in this instance as the women’s case is primarily concerned with the institutions and power structures that allowed, and possibly encouraged, the actions of the individual officers.
The following torts are commonly used to hold the police to account. With each of the torts, we’ve briefly explained how the claimants have a case against the defendants (the Metropolitan Police and ACPO).
This tort is based on the idea that executive or administrative power must be exercised only for the public good and not for ulterior or improper motives. For the tort to have been committed the act must have been carried out by a public officer acting in that capacity; the officer must have intended to either knowingly injure the claimant or to have knowingly and/or recklessly acted beyond their powers; the claimant must have suffered damage as a result of the officer’s actions and the officer must have been aware that this damage was a probable result of their actions. It can also be prosecuted as a criminal offence.
In this case, the officers themselves, and almost certainly their handlers and others in the police force, were aware that the officers were having sexual relationships as part of their deployment. They knew that the relationships were not authorised by legislation and were also in breach of internal police guidelines. It was foreseeable that the people targeted would be likely to suffer psychiatric and psychological injury as a result of the officers’ actions.
For this tort to have been committed the defendant must have made a false representation that they knew to be untrue or were reckless as to whether it was true; they intended the claimant to rely on the representation and the claimant did rely on the representation and suffered loss as a result. It can also be prosecuted as a criminal offence.
In this case, the officers claimed to be environmental and social justice campaigners; they were in fact undercover police officers paid to spy on the activities of campaigners. In order to maintain their cover it was necessary that the claimant’s believed their stories and acted in reliance on them. Until the officers were exposed, the claimants relied upon their representations completely to the extent that they formed long term sexual relationships with them. When the officers faked their own disappearances, or when their true identities and motives were discovered, the claimants suffered psychiatric injury and mental distress as a result of the deceit.
Any physical contact which has not been consented to can amount to an assault; there is no need to show an intent to cause injury. It has been established at law that if consent is obtained through deceit then it cannot be considered to be real.
In this case, the officers had sexual relationships with the claimants. They obtained the consent of the claimants to engage in sexual relationships with them through deceit. They lied about fundamental aspects of their identities, with the full knowledge that the claimants’ consent to these sexual relationships could not have been obtained without this deceit. The officers were aware that there was no lawful justification for the deceit.
The tort of negligence involves the breach of a duty of care owed by the defendant to the claimant. The defendant breaches the duty of care by failing to act in the way a reasonable person would and the claimant suffers foreseeable damage as a result of the defendant’s breach. A duty of care is only imposed within the context of certain relationships where the courts consider it “fair, just and reasonable”. For policy reasons the courts have generally held that the police do not owe the public a duty of care.
In this case it is argued that the defendants did owe a duty of care to the claimants; the officers were acting directly under the control of the defendants, who gave the officers instructions to gather intelligence. In this situation it is fair, just and reasonable for the courts to impose a duty of care on the defendants and this would be within the remit of RIPA and police guidance. If a duty of care did exist, it was clearly breached: the defendants allowed the officers to remain under cover for many years, allowed or ignored the development of long term relationships and failed to take any steps to limit the foreseeable damage that was caused.
For further background information, see The Case.
For the most recent posts giving developments in the common law claims, see posts tagged common law.