Comment: Undercover police can have sex with their targets – but you’re not allowed to know about it

By Jane Fae

Read all about it!  Or rather: don't.  The press may continue to froth over the possibility of having their collective wings clipped by government fiat, but the media silence over a far greater illiberality – the growing use of secret courts – is deafening.

This story is about activists, in this case five women and one guy, who are currently seeking redress against two police forces, the Met and South Wales, plus the Association of Chief Police Officers (Acpo), for allegedly infringing their human rights.  This they allegedly did by encouraging – or at least turning a blind eye to – undercover officers having intimate relationships with members of groups under surveillance. The man of the group claims an undercover officer deceived and abused him in order to seduce one of the women, who was also his girlfriend.

The matter erupted into the public domain approximately two and a half years ago, when one of the undercover officers, identified as Mark Kennedy, had second thoughts and "changed sides" in the middle of a long and expensive trial. Cue collapse of trial.

Since then, we have had the equally public overturning of a series of other convictions. In October 2011, the police established Operation Herne, an inquiry initially focused on the activities of the Special Demonstration Squad but later expanded to cover the issues raised here.

Perhaps unsurprisingly, the protesters now in court refused to co-operate, arguing that such an inquiry gave them no guarantees whatsoever of the truth ever being told openly.  Instead, they demanded a public inquiry.

In 2012, there was parliamentary debate on the matter. In March this year, the home affairs select committee pronounced itself seriously unamused by the antics of our boys in blue.

According to committee chair Keith Vaz: "The impact of the conduct of undercover officers on the women with whom they had relationships has been devastating".

He went on: "It represents a wholly improper degree of intrusion by the state into the lives of individuals". The committee called for a "root-and-branch" overhaul of the Regulation of Investigatory Powers Act 2000 (Ripa) which is the legal framework against which this intrusive state surveillance has taken place.

There is a lot of history here.  That is important, because the national prominence of this case might be considered to have some bearing on what follows.

Once all this unpleasantness was out in the open, a number of activists decided to take action against the police.  Not against the individuals involved, but against the chief officers of the forces involved, who in law are responsible for the actions of officers acting on their behalf. This is why the legal arena has become a little crowded. In court, on a good day, there are four teams representing, variously, two groups of claimants (one from a Cardiff anarchist network, another from environmental protesters), and two police forces.  Acpo, for now, remains unrepresented.

The claimants maintain that the police breached their human rights under Article 3 (prohibition of degrading treatment) and Article 8 (respect for private and family life) of the Human Rights Act 1998. They also claim common law causes of action, including for the torts of misfeasance in public office, deceit, assault (trespass to the person) and negligence. One group further alleges breaches of statutory duty under the Data Protection Act 1998.

The outwardly obvious way forward – to pursue the officers concerned for some form of sexual assault – was rejected early on.  This was based in part on a view that this case was bigger than the individuals involved and in part on the understanding of the law, when this case began, that even such egregious deception as that carried out by the police officers concerned was not sufficient to allow such a claim.  That belief has now been overtaken by the ruling in the McNally case earlier this year, in which Lord Justice Leveson appears to have extended the law and determined that in some exceptional cases, misleading one's sexual partner can invalidate consent.

These, however, as judges involved in the present case have suggested, are muddy waters on to which they will not venture.

Back, though, to the present case. Human rights come in two varieties: absolute and qualified. The first are, as their name suggests, absolute, whereas qualified rights are not.  They may be ignored or overturned in specific circumstances – most notably where one individual's rights appear to clash with those of another individual or group.

This distinction is important.

Back in November 2012, as was to be expected, the various police bodies involved in this case, plus their legal teams, turned up at the High Court to argue two points. Firstly, that this case in its entirety was an abuse of process, or, secondly, that if it wasn't, it should be heard before the Investigatory Powers Tribunal (IPT), which is a special court set up to hear cases involving issues concerning official surveillance.

The problem with the IPT, as Harriet Wistrich, a solicitor with Birnberg Pierce and Partners, acting for one group of claimants, explained, is that it is "a completely unfair process"

She added: "Complainants don't have any right to representation.  They have no right to be present, to appeal, or even to know the reasons why they lost or won. To date, 99% of cases going before the IPT have been resolved in the government's favour."

Once within the dark embrace of the IPT, any chance of the public ever finding out what happened in this case will have vanished.

Unfortunately, this is exactly what Mr Justice Tugendhat, ruling in January of this year, was minded to do. Deciding that the wrongs done to the claimants might possibly represent a breach of their qualified human rights (privacy) but probably not their absolute rights (degrading treatment) he decided that the human rights claims should be heard first before the IPT, which is where Ripa insists such cases should go. The IPT would then forward information to other courts to them in dealing with any remaining unresolved issues.

It is not hard to see why the claimants were unimpressed with this approach, which has its roots in a police policy of 'Neither Confirm nor Deny' (NCND).  According to Justice Tugendhat: "Those who are planning, or who have committed, serious criminal offences may wish to know if they are the subject of any of the investigatory techniques governed by Ripa. If, by making a complaint to the police, or by bringing proceedings in the IPT, they could obtain a confirmation or denial that they were subject to any investigation, then the purpose of the investigation could well be defeated".

On the other hand, the fact that the case is already so far in the public domain might be evidence that arguments used by m’learned friends to try and stuff it back into the obscurity from which it sprang are little more than legal tosh and nonsense.

The NCND line is developed by policing minister Nick Herbert, who rejected the idea that banning certain actions, such as undercover police having sex with their targets. This would "provide a ready-made test for the targeted criminal group to find out whether an undercover officer was deployed among them", he said

That's an odd argument, instantly refuted by a simple question: would police infiltrating a paedophile ring be expected to rape children in order not to blow their cover?

In response to argument from the claimants' legal teams – that parliament never contemplated Ripa being used as a figleaf for undercover sex – Justice Tugendhat suggested that most MPs were aware of accounts, albeit fictional, in which James Bond does just that.  Ergo, they cannot have been unaware of such a possibility. Perhaps his lordship has not seen the latest Bond outing, Skyfall, in which Bond's boss, M, is called before a committee of MP's to explain, publically, her agent's conduct.

The case was back in the courts this week, on Tuesday and Wednesday, before the appeal court.  Arguments were duly put and the judges are now "reserving judgment" – in layman's terms, going away to think about it.

Unfortunately, on the evidence of legal rumination to date, it seems all too likely that this will involve an upholding of the original ruling – and a shunting sideways of this case into the murk of the IPT, one of Britain's growing roster of secret courts.

Which means, in the end, that justice may be done, but it certainly won't be seen to be done.  And one day you will be able to read about it a little.  But only a little and as much as police and secret justice believe is right and proper.

Jane Fae is a feminist and writer on gender issues. You can read more of her writing here and follow her on Twitter here.

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