Friday, 18 January 2013

Undercover Policing ~ High Court 17th January

Updated 19th January

17th January saw an interesting decision in the High Court in relation to actions brought by individuals who allege that, whilst engaged in protests, they were 'tricked' by undercover police officers into having intimate sexual relations.  The Guardian 17th January 2013 - Police spies court case suggest sexual relations with activitists were routine.  Claims have been lodged under the Human Rights Act 1998 sections 6 and 7 as well as claims at common law for torts alleged to have been committed by the Police.  There are two sets of claimants.  The actions brought by one set go back to the Ratcliffe-on-Soar climate change protests.  The actions in the second case relate to  members of the Cardiff Anarchists Network (“CAN”).

Criminal cases ~ Undercover police activity revealed:

Two years ago, this blog looked at the sentencing of certain climate change protesters - Law and Lawyers 8th January 2011.  They had been convicted of conspiracy to commit aggravated trespass at Ratcliffe-on-Soar power station.  A trial of further defendants, due to commence on 10th January 2011, was discontinued
on the basis that it was 'no longer in the public interest' to continue the case  - Law and Lawyers 10th January 2011.  The use by the Police of an "undercover agent" (PC Mark Kennedy) had come to light - The Guardian 9th January 2011 "Undercover officer spied on green activists" and The Guardian 10th January - "A journey from undercover cop to 'bona fide' activist."   The defence had sought disclosure of details of the officer's involvement.  To my mind, the discontinuance of this case raised a number of questions - Law and Lawyers 16th January 2011.

On 19th April, Keir Starmer QC (Director of Public Prosecutions) took the unusual step of inviting the Ratcliffe-on-Soar protesters to take their cases to the Court of Appeal, saying that their convictions for conspiracy to commit aggravated trespass at the power station may be unsafe.   Mr Starmer added that the protesters should cite the "non-disclosure of material" relating to the activities of Mark Kennedy, an undercover officer.  The CPS statement on this is here.  In July 2011, the convictions of the first set of protesters were quashed - Law and Lawyers 21st July 2011 - R v Barkshire and others [2011] EWCA Crim (B3).


December 2011 - Independent inquiry by Sir Christopher Rose into the Ratcliffe on Soar cases

In February 2012, Her Majesty‟s Inspectorate of Constabulary (HMIC) issued a report  relating to national police units which provide intelligence on criminality associated with protest.

In March 2012, the Independent Police Complaints Commission issued a report relating to the discontinuance of the second case - Ratcliffe on Soar (Operation Aeroscope) Disclosure - Nottinghamshire Police - Final Report 2011/000464.  

High Court 17th January 2013:

Various claimants have advanced claims under the Human Rights Act 1998 sections 6 and 7 together with various claims in tort at common law - Judiciary 17th January 2013.  In essence, the claimants say they were tricked by undercover police officers.  The 'trickery' involved intimate sexual relationships between officers and protesters.

The claimants in the cases are almost all referred to by initials.  One case is AKJ, KAW, SUR v Commissioner of the Police of the Metropolis and the Association of Chief Police Officers.    The other case is AJA, ARB and Thomas Fowler v Commissioner of the Police of the Metropolis. Chief Constable of South Wales and ACPO.

On 17th January 2013, Tugendhat J granted a temporary stay in proceedings - Judgment.   The police defendants in the actions applied to the High Court for orders that the claims be struck out; alternatively stayed, on the grounds that the High Court:

(1) Has no jurisdiction to hear the Claimants’ HRA claims because those claims are exclusively the province of the Investigatory Powers Tribunal (“the IPT”); and/or

(2) Should decline to exercise its jurisdiction over, or should strike out, the Claimants’ common law claims, because they can be heard in the IPT and it would be abusive and/or inappropriate for them to be heard in the High Court when the HRA claims arising out of the same facts must be brought in the IPT, alternatively, that it would be unfair to permit the common law claims to be heard in the High Court because, by reason of their “Neither Confirm Nor Deny” (“NCND”) policy, the Defendants cannot defend the claims.

Tugendhat J ruled:

The IPT has jurisdiction over the claims under the Human Rights Act

The IPT did not have jurisdiction over either the common law claims or for any statutory tort

The interests of justice would best be served by the IPT proceedings being heard first.

A stay on the High Court proceedings was granted.  The stay is temporary and, according to Tugendhat J, 'should not be long if the claimants pursue their claims in the IPT expeditiously.'

It remains to be seen whether this decision will be appealed.

Points of interest in the judgment:

Tugendhat J's judgment is interesting for its discussion of the Principle of Legality at Common Law and under the Human Rights Act 1998 - [see paras. 54-84] and also for the overview of RIPA (a 'long and complicated statute'] at paras. 85 to 97.  Also, the overview of the Investigatory Powers Tribunal at paras. 86 to 103.  There is much of general interest here.  In particular, I would recommend that law students read the section on legality.

At paras. 178-181 Tugendhat J talks about the fictional James Bond and the question of whether Parliament may have contemplated undercover operatives engaging in sexual relations.  It is unsurprising that this has met with criticism - Jonathan Freedland - The Guardian 18th January - 'A load of Thunderballs: James Bond is fiction, not a police instruction manual.'  Freedland sees such activities, if permitted, as State sanctioned emotional abuse.

Liberty also describe the Police methods as State sanctioned abuse - State sanctioned abuse - Liberty News 18th January.


Surveillance raises a considerable array of legal issues.  In recent years there has an increase in the statutory regulation of various activities.  These activities include interception of communications (now regulated by the Regulation of Investigatory Powers Act 2000 Part I); the use of "bugging devices" on premises (Police Act 1997 Part III) and covert surveillance (Regulation of Investigatory Powers Act 2000 Part II).

The Investigatory Powers Tribunal was created by the RIPA 2000 s.65

Investigatory Powers Tribunal Rules 2000 - Note Rule 9(6) - The Tribunal’s proceedings, including any oral hearings, shall be conducted in private.  There is therefore no choice in this matter.

See Cabinet Office - The Investigatory Powers Tribunal

Also see the IPT website


The Tribunal previously came to public notice in 2010 with a ruling against Poole Council.  On 10 February 2009 the Tribunal received 5 almost identical complaints from 2 adults and 3 children of the same family. The children were aged between 3 and 10. The complaints were of unlawful directed surveillance between 10 February and 3 March 2008 carried out by Poole Council to identify the family place of residence on 11 January 2008 to determine if it was within a school catchment area. The school was popular and oversubscribed.  The Council was unable to establish that the surveillance was necessary for the permitted purpose or was proportionate.


  1. I don't see where this case is coming from. The Claimants slept with the men because they found them sexually attractive; or at any rate would not have slept with them if they did not. No action can lie against the men for not being honest about who they were (imagine a world where that was possible!) and as for their employer: if bedding the activists was in the scope of their employment then I'm in the wrong job.

    1. There is something in what you say. The cases have not - as yet - got into the merits of the actual claims. The first merits test ,on the Human Rights claims, will now be before the secretive IPT. Underlying it all is, of course, one of the most powerful public authorities in the land (i.e. the Police) engaging in covert surveillance and the legal limits of such activity are under test.

      A further - perhaps moral point - is that married officers are used in this work. Is that fair on their spouses or do they just say that it was all in the line of duty?

      Perhaps the answer is to use ugly looking officers but, then again, beauty is the eye of the beholder!!

    2. See the article in The Guardian by Jonathan Freedland 18th January 2013