ABUSE OF HUMAN RIGHTS
Undercover officers having intimate and sexual relationships with members of public they are targeting is an abuse of human rights. It is degrading treatment, that interferes with private and family life, and rights to freedom of expression and association. Also, the human rights of the friends and families of targets were abused. The police describe this as ‘collateral intrusion’, and perversely authorisation of this type of intrusion appears to require an even less rigorous test.
TAKING THE POLICE TO COURT
Alongside common law claims of women affected, some of the women are bringing claims under the Human Rights Act. Although all of the people affected had their human rights breached by what happened, only some of them are able to make claims under UK law because the European Convention on Human Rights wasn’t incorporated into UK law until 2000 when the Human Rights Act was introduced. People whose lives were disrupted after 2000 are in the position to bring claims under that law.
The law that oversees undercover officers is called The Regulation of Investigatory Powers Act 2000 (RIPA). Unfortunately, anything authorised under RIPA, can only be challenged in the Investigatory Powers Tribunal – a highly secretive court . When this court gives its judgment, it does not have to give any explanation.
KATE WILSON’S HUMAN RIGHTS CASE
In September 2021, the Investigatory Powers Tribunal handed down its ruling in Kate Wilson’s epic ten-year legal battle over the use of undercover police against protest movements. The detailed, ground-breaking, 156-page ruling identified a “formidable list” of breaches of fundamental human rights by the Metropolitan Police without lawful justification in a democratic society.
Kate was one of eight women to have won a historic apology from the Metropolitan Police over their relationships with undercover police. She was the only woman who was able to pursue her case a in the Investigatory Power’s Tribunal (IPT), claiming that the police violated her Human Rights under Articles 3, 8, 10, 11 and 14 of the European Convention of Human Rights.
Sexist discrimination
The Tribunal looked at evidence relating to the sexual relationships UCO Mark Kennedy had with Ms Wilson and a number of other women, and at the widespread practice of undercover officers (UCOs) deceiving women into intimate relationships, concluding that the police violated her Article 3 right to live free from inhumane and degrading treatment, as well as her Article 8 right to private and family life, and that they were guilty of sexist discrimination in their handling of her human rights.
The findings stressed that the police failed to put in place systems, safeguards or protections: training of UCOs in relation to sexual relationships was grossly inadequate, and there was a widespread failure of supervision of Mark Kennedy in his undercover role. The Tribunal ruled that the failure to prevent undercover officers entering into sexual relationships primarily impacted women, to the extent that it amounted to sexist discrimination under Article 14.
“Don’t ask, don’t tell”
The Tribunal noted that the evidence showed a disturbing lack of concern on the part of the police about the impact on women of introducing undercover officers into their lives, and the likelihood that those officers would seek to have sex. The ruling stressed that the sexual relationship Ms Wilson was deceived into by Mark Kennedy was conducted with the knowledge of his principal cover officer, and that his deployment manager, and other senior officers of Detective Chief Inspector (DCI) level and above knew (or chose not to know) about the sexual relationship, concluding that the National Public Order Policing Unit’s approach to its officers having sex while undercover was one of “don’t ask, don’t tell”.
Unlawful operations violated the right to protest
Kate was spied on by 6 undercover officers: Jim Boyling, Jason Bishop, Rod Richardson, Mark Kennedy, Lynne Watson & Marco Jacobs
The ruling did not stop at the sexual relationships, as the Tribunal found that police took steps to interfere with Ms Wilson’s political rights to hold opinions and with her Article 10 and 11 rights to freedom of expression and association; as well as violating her right to a private and family life.
The ruling stressed that the police had failed to give any proper consideration or put structures in place to limit collateral intrusion into the private lives of Ms Wilson or anyone else coming into contact with the operations. They described the breadth and open-ended quality of the authorisations for Mark Kennedy’s operation, which were virtually meaningless as any kind of protection, calling the operation a “fishing expedition” against legitimate groups who were exercising political rights enshrined in the European Convention on Human Rights.
“Disturbing and lamentable failings at the most fundamental levels.”
The judgment also criticised the Metropolitan Police conduct of the case, stating that many contemporaneous documents “crie[d] out for an explanation”, and that there was “no reason that we can see why we were not provided with a statement from a witness with direct knowledge of these matters”. The factual evidence provided by the police was deemed “unsatisfactory”, and the ruling noted that, were it not for Ms Wilson’s tenacity and perseverance, “much of what this case has revealed would not have come to light”.
The ruling concludes:
“This is a formidable list of Convention violations, the severity of which is underscored in particular by the violations of Arts 3 and 14. This is not just a case about a renegade police officer who took advantage of his undercover deployment to indulge his sexual proclivities, serious though this aspect of the case unquestionably is. Our findings that the authorisations under RIPA were fatally flawed and the undercover operation could not be justified as “necessary in a democratic society”, as required by the ECHR, reveal disturbing and lamentable failings at the most fundamental levels.”
Kate Wilson commented
“This has been a long and emotional journey, and I am happy to receive this ruling today. The events in my case happened years ago, however the failure of the police to protect women from sexual predators within their own ranks, and police attempts to criminalise protestors are both still very live issues today. The Tribunal has gone some way towards recognising how deep the abuses run. We need to tackle the misogyny and institutional sexism of the police and there needs to be a fundamental rethink of the powers they are given for the policing of demonstrations and the surveillance of those who take part.”
Key dates:
- January 2016, the police withdrew their defenceagainst Kate Wilson asking for the judgment to be entered against them in respect of the claims for deceit, assault/battery, misfeasance in public office and negligence.
- June 2017: Police seek to avoid accountability in human rights case about abusive relationships by undercover officers
- September 2018: Police admit managers supported serious human rights abuses, but try to obstruct court from learning more
- September 2021: Court rules undercover policing operation against protest movements were ‘unlawful and sexist’
COLLATERAL INTRUSION & HUMAN RIGHTS
Intrusion into the lives of people associated with the targets of the undercover officers is termed by the police ‘collateral intrusion.’ Perversely, its authorisation appears to require less rigorous tests than intrusion into the lives of “suspects”
“He is in my mother’s wedding photograph, and I and my current partner have to see him in that.” Alison
“There is no justification for somebody coming to my father’s funeral with me. There was no justification for putting an undercover cop into my family’s life.” ‘Lisa’
The depth of the intrusion into the claimants’ lives also meant a deep intrusion into the lives of family members and close friends. For example, undercover police officers “infiltrated” deeply emotional family gatherings such as funerals, weddings and birthday celebrations. The psychological harm inflicted, not only on the claimants, but on close members of our family (including infirm, elderly relatives) cannot be justified.
Collateral intrusion is, it seems, a euphemism for violating the fundamental human rights of people who are not even the specific subjects of surveillance, without any real consideration of the psychological damage that such deep deceptions might cause. In the same way that it is not considered necessary and proportionate for undercover officers to form intimate sexual relationships, it is always wholly inappropriate for a police officer to embed themselves into extended families, in the way that being part of long-term relationships would necessitate.
Instead of being seen as ‘collateral intrusion’ that can be easily authorised, every individual whose Article 8 Human Rights may be breached by an operation should be afforded the respect of having the merits of that intrusion specifically considered and recorded, including the specific reasons why it is considered necessary and proportionate.
EUROPEAN CONVENTION OF HUMAN RIGHTS
This is an international treaty to protect human rights and fundamental freedoms in Europe. It was incorporated into UK law by the Human Rights Act 1998. Its first 18 articles spell out people’s main rights and freedoms.
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. The people 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.
Article 3 prohibits “inhuman or degrading treatment”
“It turns your life upside down. Everything that you thought you knew suddenly becomes unreal; everything changes. You do not know who you can trust any more. It destroys everything.” Helen Steel
“I have experienced the psychological damage that these operations can cause. It is deep and it is long lasting, and I think that the intrusiveness and the psychological violence that is inherent in these tactics, and not just the sexual relationships, but the intimacy, the abuse of trust, which is completely inherent to any undercover policing operation could be seriously underestimated by anyone who has not been subjected to that tactic.” Kate Wilson
Article 3 is an absolute human right – it is not possible to authorise someone to violate Article 3 under any circumstances.
In their apology, the Police admitted the relationships were a “gross violation of personal dignity and integrity,” and said officers “preyed on the women’s good nature and had manipulated their emotions to a gratuitous extent.”
These relationships caused serious long-term harm and psychological trauma to the victims and others close to them. This, and the nature of the deception involved, mean they were a violations of Article 3. If this is upheld in court, a change in the law around the authorisation of intimate relationships by undercover officers might be forced.
“What happened to us has been akin to psychological torture” ‘Lisa’
Article 8 provides a right to respect for one’s “private and family life.
“I have been abused in by an undercover police officer who was sent into my life, into my home, into my parents’ home, and into my bed by the Metropolitan Police.” Kate Wilson
“I met him when I was 29, and he disappeared about three months before I was 35. It was the time when I wanted to have children” ‘Alison’
Intimate and sexual relationships by undercover officers concealing their real identity from the other person/s in the relationship/s represent a clear violation of the right to respect for private and family life. These relationships involved intrusion into people’s families, with some officers attending family funerals, and helping women through the grieving process. In their Apology, the Met Police admitted it was a “gross violation” of the women’s privacy.
Article 10 provides the right to freedom of expression, & Article 11 protects the right to freedom of assembly and association.
“There is probably more damage and violence that happens on a regular basis on a Friday night in town centres when people get drunk, but there is not a proposal to infiltrate every pub in the country on the off-chance that you are going to be able to prevent violence and damage. This is about political policing and trying to interfere with what is actually a recognised right to freedom of association and freedom of expression.” Helen Steel
“It has had a massive impact on my political activity…I suspected within about a month of his disappearance, and after about 18 months of different searches I came to believe it… I withdrew from political activity.” Alison
“I have been the subject of systematic surveillance and violations of my intimacy, my right to privacy, and my bodily integrity, for at least the last 18 years by police forces that are cooperating across European borders. Put simply it is a story of human rights abuse and persecution by secret political police because of my beliefs and political activities…..” Kate Wilson
Women have been targeted because of their participation in social justice campaigns. Intimate and sexual relationships have been used as a tactic to infiltrate campaigning and political organisatons. These relationships resulted in real psychological harm, violating the right to freedom of expression, and the right to freedom of assembly and association.
Any “like-minded activist” was considered a valid target for infiltration, and further authorisation was not sought for their inclusion into the operation, regardless of their relevance to any investigation. This approach is clearly interferes with the right to freedom of expression, and the right to freedom of assembly and association.
Article 14 contains a prohibition of discrimination including that based on sex, with respect to rights under the convention.
Undercover officers having sexual relationships with female activists plainly has a discriminatory effect on women being able to exercise their human rights under Articles 3, 8, 10 and 11.
“This highlights the sexist mind-set that thought that it was acceptable for the police to abuse women, and derail our lives in order to shore up the fake identities of these undercover policemen so they could undermine political movements and campaign groups.” Helen Steel
Qualified Human rights
Article 8, 10, 11, &14 rights are qualified rights, but interference is permissible only if there is a legal basis; the interference is necessary in a democratic society; or the interference is proportionate to what is sought to be achieved by carrying it out.
There is nothing in law which states that if a police officer suspects an individual of involvement with a political movement, that officer is entitled to have a sexual relationship with the person to try to find out. Sexual and intimate relationships cannot be said to be necessary – there are a multitude of reasons why any individual might decline to become intimate with another person. Given the level of invasion of privacy and the serious psychological harm caused by such relationships they cannot be thought of as proportionate for getting information on political campaign groups.
