Monday, 10 January 2011

Climate change protesters - No. 2 - Further trial collapsed and Undercover police officer

The post immediately below looked at the Ratcliffe-on-Soar protesters case which completed at the Crown Court in Nottingham last week. A further trial was set to commence of six others alleged to have been involved but it now appears that "it is no longer in the public interest" to continue with their trial.  The use by the Police of an "undercover agent" has come to light - see The Guardian 9th January "Undercover officer spied on green activists" and The Guardian 10th January - "A journey from undercover cop to 'bona fide' activist."   The defence in the second trial sought disclosure of details of the officer's involvement.  Subsequently, the Crown Prosecution Service (CPS) stated that they would abandon the case.  According to the report in The Guardian, the CPS referred to "previously unavailable information" which undermined its case.  The exact nature of that "information"is not all that clear but it may be that the officer had offered to testify for the defence.

Mike Schwarz, a solicitor at the Bindmans law firm who represented the protesters, said:
"I have no doubt that our attempts to get disclosure about Kennedy's role has led to the collapse of the trial.  It is no coincidence that, just 48 hours after we told the CPS our clients could not receive a fair trial unless they disclosed material about Kennedy, they halted the prosecution."

Undercover operations and the law:

Undercover operations are far from uncommon and are necessary in the investigation or prevention of crime.  However, questions can arise relating to "entrapment" or to whether prosecution evidence should be excluded in the interests of a fair trial - Police and Criminal Evidence Act 1984 s.78.

On the question of "entrapment" it is instructive to look at the House of Lords speeches in R v Looseley and Attorney-General's Reference (No. 3 of 2000)Lord Nicholls of Birkenhead pointed out that every court has an inherent power and duty to prevent abuse of its process.  "This is a fundamental principle of the rule of law" which seeks to prevent state agents misusing the coercive, law enforcement functions of the courts.

R v Smurthwaite and Gill 1994 involved "Solicitation to Murder."  The Court of Appeal looked at the application of PACE s.78 to police undercover operations.  Police officers had posed as "contract killers" and had secretly recorded conversations they held with those soliciting murders.  The Court of Appeal upheld the convictions given that the recordings showed that it was the offender who had made the running and that the officer had taken a minimal role in the planning and had not sought to persuade the offender to commit the offence.  Lord Taylor of Gosforth CJ said that in deciding whether to admit the evidence of an undercover police officer, the judge may take into account matters such as whether the officer was enticing the defendant to commit an offence he would not otherwise have committed, the nature of any entrapment, and how active or passive was the officer's role in obtaining the evidence.

This is a difficult area of the law but the courts have to be vigilant to ensure that their processes are not misused.

The UK Human Rights Blog take on this matter is particularly interesting.

The Independent 10th January 2011 - "Power station protest trial collapses."
BBC 10th January 2011 - "Trial collapses after undercover officer changes sides."
Also see Ratcliffe on Soar.

Addendum:  See "Environment activists demand inquiry into undercover officer's role" - The Guardian 10th January.

Related Post: - 5th August 2010 - "A little known tribunal ..."  looked at the Investigatory Powers Tribunal

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