Women vs. Spy Cops: Hearings in High Court

Seated at wooden benches, with a cop right behind me. Was he reading over my shoulder? I don’t know. When I sit back, I crumple his notes. That’s how close we are. Streets around the High Court were riddled with police, awaiting the student protests. The London School of Economics is just around the corner. The helicopter hovering low all morning just adds to the atmosphere.

This is the legal cases of the women who were deceived into having relationships by undercover police officers. Last week saw the first set of hearings devoted to the technical procedures. If the Met has its way, this could be the only public hearings in the entire case.

Two days of hearings were not enough, the Court needed more time on Friday. The judge has now retired, as the women write at PoliceSpiesOutofLives.org, to consider the issues raised and has not yet indicated when the judgement is likely to be handed down.

The Case

The legal claim is about the extent of damages for the harm caused, which is of course difficult to translate into financial figures. The women are also bringing claims for deceit, assault, misfeasance in public office and negligence. They seek to highlight and prevent the continuation of psychological, emotional and sexual abuse of campaigners and others by undercover police officers.
See my blog posting Reclaiming Rights Rather than Rules & Regulations.

So far the police have chosen obstruction. They’re fighting the case every step of the way. They even refuse to confirm or deny whether the people involved were infiltrators. They are attempting to have the case tried behind the closed doors of the Investigative Powers Tribunal set up under the 2000 Regulation of Investigatory Powers Act (RIPA). This would deny the claimants the right to hearings, to witnesses, to appeal or to get access to evidence. The hearings this week focused on jurisdiction and fighting secrecy for the operations under RIPA. Thus, only the people involved in the most recent cases of infiltration were represented in court.

The Claimants

The first group of claimants has had quite some publicity, culminating into two articles in the Daily Mail, plus a strong editorial, the front page of The Times and the Guardian. Eight women have filed complaints against different undercover officers for deceiving them into long-term intimate relationships – not just for months, sometimes for years. Three of complaints involve Mark Kennedy and are discussed now; but there are others as well – the first case dates back to the 1980s. The women are represented by Birnberg Peirce. The second case is that of three people from Cardiff and involves another infiltrator, Mark Jacobs, as well as Mark Kennedy. The latter are represented by Tuckers Solicitors.

The Setting

Though different from the session in Parliament a fortnight ago, on which I blogged here, this is another attempt to get to grips with what has happened. The translation into legal terms turned out to be a more structured effort to put it into words, ripping apart what happened step by step.

The setting is just as surreal as in the House, yet more detached from everyday life. Somehow though, the established format does what it is designed to do: it helps to focus entirely on the issues at stake. (Fortunately there were no robes and wigs to distract us). A church-like hall, with wood-panelled walls and shelves of dusty law books, stained glass windows high above our heads. The judge elevated, security guards in front of him. The rules in British Court rooms are very strict, though many are unwritten – and seem to move under our feet. The ban on mobile phones is maintained within the reach of the warden’s eye, beyond that anything goes. Despite the fear of live-tweeting, the use of laptops and iPads is permitted. The public is not allowed to speak, but upholding the silence is no problem as any whisper disturbs us all. The lawyers are positioned in front of us, facing the judge. Without amplification it is straining to hear what they say. The helicopter cuts right through, reminding us of the reality of protest in the street.

At the benches were the lawyers and their staff, and from the police. The public consisted of women involved and their support group on the one hand, and interested cops on the other. Representing the press all the way through was Rob Evans from the Guardian who is finishing a book on Undercover Policing (here is his report of the first day). Two or three other journalists sat through parts of the procedures.

The Judge

All parties had prepared skeleton arguments to make their points, and took the Judge through their pleadings. He was guided through the multiple binders to read specific paragraphs of regulations, quotes of reports and specific jurisdiction. The pleadings thus were interrupted by silent waiting for his Lordship to reach for the right dossier, find the file, turn to tab 37, page 245, section 27 under a. & b. And to let him read and take in the information.

Mr Justice Tugendhat did just that. He remained patient and appeared interested all the way through. He engaged with the arguments brought forward, putting questions to clarify positions. He was familiar with other cases that involved infiltrators, intelligence operations and secret information. It is at least a comfort to have a judge on the case who agrees that it is of great importance to take time to sort out the many complications in this case. Although, speaking from experience, impressions like this are not worth much.

The Pleadings

The following is based on the printed Skeleton Argument on Behalf of the Claimants for the Hearing 21-23 November 2012, by Binberg Peirce solicitors Phillippa Kaufmann QC and Charlotte Kilroy. I am no lawyer, so don’t quote me on legal details where I am not quoting them. Just summarising the skeleton does not do justice to the many detailed and sometimes hair splitting discussions at the High Court, but what can I do. Not yet included are the arguments brought by Tuckers for the Cardiff claimants. Maybe later.

The Issue of Jurisdiction

The claimants have brought claims against the defendants in tort and under the Human Rights Act 1998 (HRA). They seek damages for the emotional, psychiatric and financial losses they suffered as a result of having been deceived into entering into intimate sexual relationships with Mark Kennedy, whom they believed was a fellow protester, but subsequently discovered was a police officer collecting intelligence on them, their friends and their acquaintances. Claims under the Human Rights Act against the police like those under common law are usually being heard in the High Court. However, since 2000 the Regulation of Investigatory Powers Act (RIPA) regulates all police operations that involve the gathering of intelligence. The Act includes the provision of a secret court to hear claims deriving from operations under RIPA, called the Investigatory Powers Tribunal (IPT).

This state of affairs bares the core issues discussed at the hearings. To name a few, without going into too much detail:

  • Only the most recent cases of infiltration, a.k.a. those involving Mark Kennedy and Marco Jacobs reside under RIPO. The other operations took place before that. So, only three out of the eight claimants in the women’s case fall under RIPA. Would it make sense to split the case and have it heard in two different courts.
  • The police insists that under RIPA, HRA complaints are exclusively the province of the IPT. The claimants state that the Act was carefully crafted to limit the types of HRA claims which could be heard by the Tribunal.
  • The police have not commented in any detail any of the facts alleged by the claimants. They have, however, acknowledged that Mark Kennedy was an undercover officer and that from July 2003 until February 2010 he was authorised under RIPA to do what he did. While normally responses to questions about this kind of operations are denied, the so-called Neither Confirm Nor Deny policy has been lifted in the case of Mark Kennedy (see the report of Her Majesty’s Inspectorate of the Constabulary – which I discussed here – dated 2 February 2012, page 4). This is one of the many reasons why it does not make sense the refer the Mark Kennedy case to the secret Tribunal, as per police request.

They Knew!

Instead of bringing the individual infiltrators to Court, the women have chosen to file claims against those responsible: the Commissioner of the Met and the Association of Chief Police Officers (ACPO). The summary of the allegations against Mark Kennedy leaves no doubt about the point the women want to make:  They Knew!

Mark Kennedy, married with two children, deceived women into intimate sexual relationships while he was ‘performing his duties as an undercover officer.’ He maintained his false identity for seven years with the help of extensive resources (money, false documentation) provided by his superiors. He invaded their family life and went on private holidays with his girlfriends. He used his sexual relationships to make the women emotionally dependent on him, and discouraged them to from splitting up. He used the relationships to secure his position within the activist groups, to ensure e would not be discovered as an infiltrator. Apart from getting personal gratification, the relationships enabled him to gather intelligence. Kennedy was aware of the fact that none of the women would have engaged with him had they known his true identity.

The relationships MK had with the Claimants were known about or suspected by other police officers including other undercover officers, his day-today handler and his managers in the National Public Order Intelligence Unit (NPOIU). Despite this the authorisations provided by the Defendants to MK under RIPA did not instruct or purport to permit him to embark on intimate sexual relationships with the Claimants or with anyone.

Those facts lead to the following causes of action under the HRA and in tort, and I quote the skeleton argument of the Binberg Peirce lawyers:

1. A breach of their rights under Article 3 of the European Convention on Human Rights (ECHR)
2. A breach of Article 8 ECHR
3. Deceit
4. Misfeasance in public office
5. Assault
6. Negligence

On any view these are grave allegations. Not only do they raise serious questions about police misconduct and the extent to which covert police powers have been and may in future be used to invade the personal, psychological and bodily integrity of members of the general population, but they raise a range of difficult and novel questions of law both under the HRA and in tort.

And these issues arise not just in these claims, but in a range of other complaints against infiltrators already issued in the High Court.

All the more reason to hear this case in open court.

Legal Background

RIPA was introduced alongside the Human Rights Act 1998. Its principle aim was to ensure that covert investigatory powers were used in compliance with Article 8 of the European Convention on Human Rights:

Article 8 ECHRRight to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Authorisation under RIPA was to be ‘an answer to any subsequent assertion based on art 8 of the European convention that a person’s privacy has been invaded without jurisdiction’, so said Home Secretary Jack Straw in 2000 introducing the bill.

No Requirements

RIPA establishes a hierarchy of ‘covert investigative powers’, with the powers considered most intrusive available in far more limited circumstances, to far fewer public bodies and subject to significantly more stringent requirement tan those considered to be the least intrusive. In this hierarchy the use of so called Covert Human Intelligence Sources (CHIS) is considered the least intrusive. This leads to the situation whereby bugging or ‘intrusive surveillance’ requires authorisation by the Secretary of State or a judge, while an infiltration operation can be set up without warrants or prior approval, and ‘can be authorised by relatively low-ranking officials in an extremely wide range of public authorities’ in all kind of situations.

No Definitions

Apart from that, and this was discussed extensively at the hearings, the definitions of both ‘covert human intelligence sources’ and ‘the conduct and use of them’ have rather general descriptions that allow use for a wide range of purposes. A ‘personal relationship’ covers any regular contact with anybody, starting with a local newspaper seller sharing the latest gossip with an undercover agent.
Moreover, since RIPA came into force tow Codes of Practice for CHIS have been issued, the latest in 2010. Neither Code contain any reference at all to the development of romantic or sexual relationships by CHIS. Nor is there any indication ‘that its authors contemplate the use of close or long-term personal relationships of any kind.’

This discussion inevitably brought up the question whether sexual relationships need to be outlawed for undercover officers, and a repetition of the argument that Nick Herbert used before in Parliament in June. The Minister of Policing claimed that if there was a ban on sexual relationships, targeted groups could test potential spies and uncover their true through their refusal to have sex.
Such a line of argumentation is completely beside the point in general, and more specifically in the cases at hand. What we are talking about here, are intimate relationships, with the undercover officer acting as a long-term partner.

Secrecy versus the Public Interest

The Defendants want to refer the women’s claims to the secret Tribunal to serve the public interest of protecting undercover officers themselves and the efficacy of the tactic. However, as the lawyers of the Claimants emphasize, it makes no sense to insist on non-disclosure in these cases.

The numerous disclosures already made about Mark Kennedy’s identity, the authorisations and supervision regulating his activities and the operations he was involved in are such that the horse has long since bolted. Both Mark Kennedy and the activities of the National Public Order Intelligence Unit (NPOIU) he was involved in have already been transferred into the glare of the public arena.

It is a mistake to believe that the mere mention of this so called public interest immunity is a sufficient basis for the court to strike out the claim. Other cases make clear that the public interest which the Defendants claim would be harmed by disclosure, falls to be balanced against the public interest in ordering disclosure. In general, the relative weights to be attached to the competing interests are critical. In this case, with so much detail already in the public domain, the exercise is superfluous.

Ultimately this links with the points I make in my book on corporate and activist spying, in the concluding chapter Secrecy, Research and Resistance. To have a debate about infiltration of activist groups within a democratic society may be of more importance than the blanked use of the Nor Confirm Nor Deny policy that is so commonly used to cover secret manoeuvres.

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