Specialist human rights tribunal gives landmark undercover policing judgment

* Updated on 14 February 2022 *

In September 2021, the Investigatory Powers Tribunal – a specialist human rights tribunal that supervises the exercise by authorities of covert surveillance powers in the UK – handed down a landmark judgment concerning the undercover policing of protest groups during the late 1990s and 2000s.

Freshfields acted pro bono for the claimant – Kate Wilson – at the 7-day substantive hearing of the case in April 2021, the preparation of her factual evidence for that hearing and at the remedies stage of the case.

The Tribunal identified a “formidable list” of breaches by the Metropolitan Police of fundamental human rights that invaded the bodily integrity, privacy and political activities of women who were the subject of undercover police surveillance without lawful justification in a democratic society, thereby revealing “disturbing and lamentable failings at the most fundamental levels”.

The claimant’s political activities and personal life were subject to covert surveillance by at least five undercover officers over a period of more than ten years, and she was deceived into a sexual relationship by the undercover officer Mark Kennedy – who she knew as Mark Stone – between November 2003 and February 2005. The Tribunal also heard uncontested evidence that undercover officers deceived many other women into sexual relationships while infiltrating their political activities during the period in issue.

Almost unprecedented in the experience of the Tribunal, the Metropolitan Police conceded that aspects of this conduct amounted to degrading treatment of the claimant contrary to Article 3 of the European Convention of Human Rights (ECHR), a breach of her right to respect for private and family life under Article 8 ECHR, and a breach of her right to freedom of expression under Article 10 ECHR. 

However, the Metropolitan Police disputed the gravity and extent of the infringement of those rights, particularly as regards the level of knowledge or acquiescence of more senior officers and related failures in training, supervision and safeguarding. The Metropolitan Police also denied any breach of the claimant’s right to freedom of assembly under Article 11 ECHR and freedom from discrimination against women under Article 14 ECHR. It submitted that certain of those matters were more appropriately to be addressed as part of the broader Undercover Policing Inquiry (UCPI), which is a public inquiry that commenced in July 2015 but still remains in its relatively early stages.

The Tribunal considered that it was appropriate to determine all of these matters. It found breaches of Articles 3 and 8 ECHR that were considerably broader than those admitted by the Metropolitan Police. That was because senior officers either knew or chose not to know about Kennedy’s sexual relationships with the claimant and adopted something akin to a “don’t ask don’t tell” approach to such relationships; the training of undercover officers in relation to sexual relationships was grossly inadequate; the authorisations for the undercover operations failed to distinguish between domestic extremism potentially involving serious criminality and public order issues and therefore did not meet a pressing social need and were not necessary in a democratic society; and no proper consideration was given or structures were put in place to limit collateral intrusion into the private lives of persons not named as subjects of surveillance.

The Tribunal also found serious breaches by the Metropolitan Police of Articles 10, 11 and 14 ECHR. It concluded that Kennedy took steps to directly influence the claimant’s political opinions and movements, and that the failures of the Metropolitan Police had a disproportionate impact on women in terms of the number of women affected and the greater impact on their lives through the risk of pregnancy or interference with their child-bearing years.

The Tribunal also made broader observations about deficiencies falling short of unlawfulness in the statutory surveillance regime that was in place at the relevant time for the UCPI to consider – in the hope that “these events of some years ago are no longer features of policing in this country” – and made important – and in some respects damning – observations regarding the conduct by the Metropolitan Police of this case and its failure to produce factual evidence on matters exclusively within its knowledge.

In January 2022, the Tribunal made a formal order declaring these extensive breaches of the claimant’s human rights. The Tribunal also awarded the claimant approximately £230,000 by way of just satisfaction for these breaches. The remedies award is the largest ever awarded in the Tribunal. The award agreed between the parties represented approximately £183,000 in pecuniary loss (including around £88,000 in legal costs), £35,000 in non-pecuniary loss and £8,000 in interest [1].

Freshfields was proud to act pro bono for the claimant in this landmark case at the substantive and remedies stages, given the gravity of the issues and volume and complexity of the evidence involved. The claimant had originally been represented by Birnberg Peirce, and then had been representing herself as a litigant in person until Freshfields was instructed in January 2021.

You can find more about the key findings and broader implications of the judgment below. The full judgment can be found here and the Tribunal's remedies order can be found here.

The Freshfields team on this matter comprised Matthew Bruce, Ricky Versteeg, Holly Williams, Charlotte Best, Patrick Devine and Jenny Sparrow.

Detailed findings

Degrading treatment and family and private life

As regards the gravity of the breaches by the Metropolitan Police of Articles 3 and 8 ECHR, and their justification, the Tribunal found that:

• Senior officers of the rank of Detective Chief Inspector or above who had operational and managerial responsibility for Kennedy’s deployment either knew of his sexual relationship with the claimant, chose not to know of its existence, or were incompetent and negligent in not following up on the clear and obvious signs, and adopted something akin to a “don’t ask don’t tell” approach to sexual relationships [2]. In doing so, senior officers demonstrated either “a complete failure of imagination, or more probably a lack of interest in protecting women from breaches of Arts 3 and 8” [3].
• The Metropolitan Police breached its positive obligation to protect the claimant from the risk of Kennedy deceiving her into a sexual relationship, including because the training provided by the Metropolitan Police to undercover officers regarding sexual relationships was “grossly inadequate” [4]; there was widespread failure of supervision of Kennedy by more senior officers [5]; and there was a more general failure to put in place sufficient safeguards and protections to contain the risk that undercover officers placed long-term in protest movements would enter into intimate sexual relationships [6].
• The broader deployment of Kennedy (beyond the sexual relationship) and presence of other undercover officers in the claimant’s life did not meet a pressing social need and was not necessary in a democratic society and was not proportionate. This was because, amongst other reasons, the operation failed to distinguish between domestic extremism potentially involving serious criminality and public order policing issues [7]; and because the Metropolitan Police failed to properly consider or put structures in place to limit collateral intrusion into the private lives of persons not named as subjects of surveillance [8].

Freedom of expression and association

The Tribunal found that the claimant’s rights under Articles 10 and 11 ECHR to freedom of expression and association were breached without justification because:

• The right to hold opinions and exchange information and ideas must include the right to do so without attracting the attention of the police and being monitored and placed under surveillance, and in this case the claimant’s political views were the reason why she was subject to surveillance [9].
• In any event, Kennedy directly influenced the exercise of the claimant’s rights to freedom of expression, her political opinions and her movements, including by affecting her decisions whether or not to attend political events or protests in Dublin, Myanmar and Hamburg, and more generally using his position to “influence her political decisions” (such that the claimant felt “deprived of her political agency”) [10].
• These acts were freestanding violations of Articles 10 and 11 that were not in accordance with the law, necessary in a democratic society or proportionate, notwithstanding that they also constituted infringements of Articles 3 and 8 [11].

Freedom from discrimination

The Tribunal found that the claimant’s right under Article 14 ECHR to freedom from discrimination in the enjoyments of her rights under Articles 3 and 8 ECHR was breached without justification because:

• The failure of the Metropolitan Police in respect of training and supervision, and to establish a system which protected against the risk that undercover officers would enter into sexual relationships with women, had a disproportionate impact on women due to the numbers of women affected, and the greater impact on their lives through the risk of pregnancy or interference with their child-bearing years [12].
• This finding of discriminatory impact was based on “incontrovertible” and uncontested statistical evidence relied upon by the claimant, including that 27 women were participating in the UCPI on the basis that they had been deceived into having sexual relationships with undercover officers, with few if any analogous instances of men being deceived into such relationships [13].
• The Metropolitan Police advanced no justification for the difference of treatment – and indeed, the evidence showed that there was “very little concern” about the impact on women of introducing undercover officers to their lives on a long-term basis [14].

Broader implications and observations

In addition to its findings regarding breaches of the claimant’s fundamental human rights, the Tribunal raised a number of important broader issues for consideration by the UCPI, including:

• Drawing a critical distinction between ‘public order’ policing and the policing of ‘domestic extremism.’ The Tribunal suggested that the deployment of undercover officers for the purpose of public order policing alone will rarely (if ever) constitute a sufficiently pressing social need to be considered “necessary in a democratic society” under Articles 8, 10 and 11 ECHR [15]. Indeed, as regards this case, the Tribunal noted that the claimant herself has no criminal convictions [16], and that: “[t]his was not an operation to embed a UCO [undercover officer] in a suspect organisation; it placed him within a legitimate organisation in the hope and expectation that he would come within the orbit of suspect groups and individuals and thereby obtain valuable intelligence. This, in our view, is akin to a fishing expedition” [17].
• Identifying a fundamental weakness in the legislative regime governing covert surveillance operations. The regime fails to distinguish between informants (which are, for the most part, a relatively mild form of intervention or intrusion compared with other covert powers) and undercover officers (which can be at least as intrusive as other covert powers under the legislation such as wiretapping that have much more stringent procedural safeguards) [18]. The Tribunal has expressly invited the UCPI to consider the “profoundly significant” differences between those methods of intelligence gathering [19].
• More broadly, the Tribunal “take[s] comfort” from the fact that the UCPI is examining past events with a view to “ensuring that higher standards will prevail in the future” and that “these events of some years ago are no longer features of policing in this country” [20]. Many of the Tribunal’s key factual findings – particularly regarding failures of training, supervision and safeguarding, and to properly consider issues of collateral intrusion, impact on women, and intrusion on political activities – will be of broader relevance to the ongoing work of the UCPI and its core participants. This is consistent with the conclusion of the Tribunal that, in light of the fatally flawed surveillance authorisations and fundamental failings by the Metropolitan Police, “this is not just a case about a renegade police officer who took advantage of his undercover deployment to indulge his sexual proclivities, serious though this aspect of the case unquestionably is” [21].

The judgment also made a number of important observations about the conduct of this case by the Metropolitan Police and best practice regarding the production by public authorities of factual evidence on matters exclusively within their knowledge. Most notably:

• The Metropolitan Police did not adduce any witness evidence from any person with direct knowledge of the events in question or who had spoken to anyone who did have such knowledge [22]. A number of the contemporaneous documents that had been disclosed by the Metropolitan Police “crie[d] out for an explanation” [23]. The Tribunal found that there was “no reason that we can see why we were not provided with a statement from a witness with direct knowledge of these matters” [24]. The evidence on the factual position was therefore “unsatisfactory”, and the Tribunal made at least eight factual findings against the Metropolitan Police as a consequence, including regarding the flow of intelligence within certain parts of the Metropolitan Police, the failure to take any disciplinary action or remove officers from deployment at the relevant time, and the absence of any pressing social need for Kennedy’s deployment [25].
• Conversely, the claimant produced uncontested factual evidence from eight witnesses, including herself, her former solicitor who has also been closely involved in the UCPI for a number of years, and six other women who had been deceived into sexual relationships by Kennedy or other undercover officers, together spanning more than 200 pages of evidence and more than 750 pages of accompanying exhibits. The Tribunal relied on this unchallenged evidence to make at least ten factual findings in favour of the claimant, including as regards the nature and knowledge within protest groups of the relevant relationships [26]; the extent of collateral intrusion into the private and family lives of the women [27]; the impact of Kennedy’s relationship with the claimant on her political opinions and movements [28]; the impact on the claimant of discovering that Kennedy was an undercover officer [29]; and statistical and factual evidence of the disproportionate impact of the failures by the Metropolitan Police on women [30]. These findings reinforce the importance of parties preparing thorough and robust evidence in factually complex judicial review (or similar) cases, even where there those witnesses will not be cross-examined.
• More broadly, the Tribunal observed that this case involved “vast quantities of material” and that, were it not for the “tenacity and perseverance” of the claimant in seeking and obtaining disclosure of such materials – including in the face of “a number of shifts of position as well as by changes in legal representation” by the Metropolitan Police – “much of what this case has revealed would not have come to light” [31]. Pointedly, the Tribunal noted in this regard that “some aspects of the conduct of the Respondents’ case have contributed to the distress and anxiety which the Claimant has experienced” [32].

Conclusion 

The findings by the Tribunal of very serious breaches of the claimant’s fundamental human rights, the broader relevance of those findings and other observations by the Tribunal to the ongoing UCPI and its core participants, and the criticisms by the Tribunal of the conduct by the Metropolitan Police of this case and its failure to produce factual evidence on matters exclusively within its knowledge together mean that – in the words of the Tribunal – “there is no denying the significance of this case, and not just for the Claimant” [33].

Together with the Freshfields solicitor team, the claimant was represented by a counsel team comprised of Charlotte Kilroy QC, Isabel Buchanan and Tom Lowenthal, all of Blackstone Chambers.

***

[1] An additional sum of approximately £4,000 was awarded to the claimant by the Tribunal.

[2] Judgment, paragraphs 225 & 226.

[3] Judgment, paragraph 232.

[4] Judgment, paragraph 193.

[5] Judgment, paragraph 234.

[6] Judgment, paragraph 232.

[7] Judgment, paragraphs 286 & 289. This finding is discussed further in the “broader implications and observations” section.

[8] Judgment, paragraph 235. In particular, the Tribunal found that the failure to put in place such structures was made more egregious by the fact that the undercover operation appears to have been subject to “virtually no boundaries”, and because the claimant was caught up in the surveillance that breached Articles 3 and 8 while exercising her rights under Articles 10 and 11 to express herself freely and to protest (as summarised further above).
[9] Judgment, paragraphs 333 & 335.

[10] Judgment, paragraph 325.

[11] Judgment, paragraphs 333 – 336 & 341. In particular, the Tribunal noted (at paragraph 335) that: “Suppose the Claimant had simply claimed breaches of Arts 10 and 11. Would her claims have to fail only because they also involved breaches of Arts 3 and 8? We think not”.
[12] Judgment, paragraphs 307 & 308.

[13] Judgment, paragraph 301.

[14] Judgment, paragraph 311.

[15] Judgment, paragraphs 280 – 290.

[16] Judgment, paragraph 287.

[17] Judgment, paragraph 99.

[18] Judgment, paragraph 263.

[19] Judgment, paragraph 265.

[20] Judgment, paragraph 345.

[21] Judgment, paragraph 344.

[22] Judgment, paragraphs 19 & 21. Instead, the Metropolitan Police adduced witness statements by the Deputy Commissioner of the Metropolitan Police that had been prepared by a team of lawyers, including two barristers: see Judgment, paragraph 19.

[23] Judgment, paragraph 43.

[24] Judgment, paragraph 208.

[25] See, for example, Judgment, paragraphs 56, 169, 173, 181–187, 195, 196, 204, 208, 213, 216–220, 232–233 & 286–287.

[26] Judgment, paragraphs 103, 107 & 203.

[27] Judgment, paragraph 289.

[28] Judgment, paragraphs 325, 334 & 341.

[29] Judgment, paragraphs 155 & 326.

[30] Judgment, paragraph 301. Also see Judgment, paragraphs 103, 107, 124, 148, 155, 203, 217, 232, 296, 302, 325, 326, 334, 335 & 341.

[31] Judgment, paragraphs 13, 346 & 347.

[32] Judgment, paragraph 13.

[33] Judgment, paragraph 343.