Alongside the people affected’s common law claims, some of them are bringing claims under the Human Rights Act.
What follows are edited highlights from two blog posts which explain the relevant clauses of the Act, and why only three of the women are able to bring claims under it. First, from the women’s submission to a public consultation over covert intelligence:
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 (Art 8) and the right not to be subject to inhumane and degrading treatment (Art 3).
Article 3 rights are absolute or unqualified human rights – it is not possible to authorise someone to violate an unqualified human right under any circumstances. We note that in a recent High Court judgement, Justice Tugendhat stated that a physical sexual relationship, which is covertly maintained, is more likely to fall into the category of degrading treatment, “depending on the degree and nature of the concealment or deception involved”.
Article 8 rights are qualified rights, but interference with qualified rights is permissible only if:
a) there is a clear legal basis for the interference with the qualified right that people can find out about and understand.
We note that there is nothing in law which states that if a police officer suspects an individual of involvement in a crime or with a political movement, that officer is entitled to have a sexual relationship with the person to try to find out.
b) the action/interference is necessary in a democratic society.
Sexual and intimate relationships cannot be said to be necessary – It was asserted by Nick Herbert in June 2012 that “to ban such actions would provide a ready-made test for the targeted criminal group to find out whether an undercover officer was deployed among them.” We believe this to be a ludicrous argument designed to allow abuse to continue. There are a multitude of reasons why any individual might decline to become intimate with another person. Such reasons are given in every day life and would not lead to an assumption that the person declining was an undercover officer.
In any event, such an argument would not be tolerated in respect of murder or child abuse, so why should it be tolerated in respect of abuse of women?
Further a defence of necessity and self-defence already exists in British law – therefore any officer genuinely in fear of his or her life and forced by circumstances into breaking the prohibition would be able to argue this in their defence.
c) the action/interference is proportionate to what is sought to be achieved by carrying it out.
The action or interference must be in response to ‘a pressing social need’, and must be no greater than that necessary to address the social need. Given the level of invasion of privacy and the serious psychological harm caused by such relationships they would clearly fail the hurdle of proportionality.
The above extract was by the eight women themselves. The following extract was written by the support group, explaining the legal battle over the human rights claims going to a secret court (see ‘The case so far – twists and turns’ ).
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. 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 people 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 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.
Just to make it clear: the police had the responsibility to respect the relevant human rights of all of the people affected, not just those who can currently bring claims in the UK courts.
This page was compiled by the support group.