Movements@Manchester

How much will the public be told about Britain’s undercover police spying on political activists? Lord Justice Pitchford, who chairs the public inquiry into undercover policing, is due to make his ruling on the disclosure of evidence and protection of identity in April 2016.

The stakes are high. The public inquiry is tasked with reviewing evidence related to covert surveillance by the police. No doubt, the most important aspect involves evidence about the immoral and unlawful behaviour of so called Covert Human Intelligence Sources (CHIS) – tactics included the use of intimate relationships, assuming the identity of dead children, withholding evidence in court and potentially breaking of the law – and their targeting of left-wing social movements.

The police have said that they want the inquiry to proceed from what we may call a ‘principle of confidentiality’. This means that large parts of the inquiry would be heard in private. They argue that this would not go against the spirit of a public inquiry, as there are provisions made for Protection Orders in specific circumstances. The disclosure of the cover names of undercover officers, for example, who infiltrated protest groups would potentially put them at risk of harm.
But activists, making the case for a ‘principle of openness’, argue that this is the time for the police to come clean. The interested parties in the inquiry who do not form part of state or police bodies – including the activist groups, the media, police whistle-blowers and elected representatives – have taken a position that asked the Chair for the hearings to be held in the open and for all evidence to be disclosed. They feel that the concerns about undercover policing where it concerns political protest override the possibility of reputational damage to the police.

Political policing in Britain

If the cover names of police officers are indeed made public, for students of social movements this would mean re-evaluating the history of protest in Britain since at least 1968, when the most notorious unit of undercover officers, the Special Demonstrations Squad, was formed.

Even though the inquiry has no specific remit to look at the infiltration of protest movements, this is clearly its overarching rationale. The announcement to hold one came as a direct result of the efforts of environmental and social justice activists to shed light on the workings of these units after they discovered that one undercover officer, Mark Kennedy, had infiltrated several political campaign groups in the UK as well as being embedded in international protest networks, notably in Iceland, Italy and Germany.

They were helped by the publication of the book Undercover by the journalists Paul Lewis and Rob Evans and their reporting of the allegations against the police in The Guardian newspaper as well as further outings of undercover officers such as Jim Boyling, Bob Lambert and John Dines. Their cases have received a tremendous amount of coverage in the British and international media. Their exposures also led to number of investigations into the issue of police spying on left-wing political activists and campaigners, notably the inquiry led by Mark Ellison QC into miscarriages of justice and the Metropolitan Police Service’s internal review Operation Herne.

While shocking in their detail, the revelation about the practices of officers attached to the Special Demonstrations Squad and its successor units are not entirely surprising. The monitoring and infiltration of left-wing activism in the UK has long been a part of political policing (Bunyan 1977).

But what is perhaps surprising is that so far, this specific case of the infiltration of left-wing and environmental groups has attracted little interest from researchers working on social movements. In fact, most of the published discussion has been carried out by criminologists and security experts with a focus on terrorism (for example Bonino and Kaoullas 2015). Needless to say, to treat the kind of non-violent direct action methods that the protest groups employed as akin to terrorism is to deny the importance of protest in democratic societies. What we need instead is a critical focus on state crime, repression, surveillance and political policing.

The harm caused by the behaviour of undercover officers to political campaigning is obvious. Most of the revealed officers deceived activists into intimate and sexual relationships, a practice for which the Metropolitan Police Service finally apologised when some of the deceived women took the police to court. In another case, the Metropolitan Police agreed to pay more than £400,000 to a women who was tricked into a relationship with the undercover officer Bob Lambert and had a child with him. Where officers appeared in criminal courts without revealing their real identity, their actions have led to miscarriages of justice.

The example of environmental activism

Let’s take a recent example of environmental activism. In June 2008, a group of climate change protesters reportedly ‘hijacked’ a train delivering coal to Drax power station in Yorkshire, after they acted out the emergency procedures for stopping the train using red flag signals. Wearing white paper boiler-suits and one donning a costume of a canary bird, they were able to bring the train to a controlled halt.

Twenty-nine activists were arrested and charged with stopping the train and obstructing the railway under the Malicious Damage Act 1861. In sentencing, the group were complimented by the Crown Court judge for bringing an ‘eloquent, sincere, moving and engaging’ case, yet found themselves convicted of obstructing engines on railways. They all received non-custodial sentences (see Doherty and Hayes 2015).

In January 2014, the Courts of Appeal quashed the “Drax 29” sentences ruling that there had been ‘a complete and total failure, for reasons which remain unclear, to make a disclosure fundamental to the defence.’ This failed disclosure refers to the deployment of the undercover officer Kennedy on the Drax protest, as one of the drivers taking activists to the protest site. A later report by Mark Ellison QC found that there could be many more miscarriages of justice.

Many of the activists targeted by the undercover police engaged in disruptive protest of this kind, but remained entirely non-violent and posed no obvious threat to public safety – the police’s actions seem to be designed to target legitimate protest more than organised, criminal activity.

What do we know about the infiltration of protest?

Well, not a lot. So far, activists have only been able to reveal the identities of 14 officers from Britain’s secret police units. A lot of this research has been done by campaigners associated with the Undercover Research Group and with the Campaign against Police Surveillance. They believe that there were well over a hundred undercover officers embedded in protest groups. The only way that they can find out if they were spied on, and if they have been in personal and intimate relationships with undercover officers, is if they are told that they were targeted.

The question of openness and full disclosure of the details of undercover policing therefore becomes fundamental. Clearly, the inquiry will not risk the exposure of current undercover operations targeting serious and organised crime networks who pose a risk to the public. But the political activists who were spied on say that they have the right to see their files, because these relate to the targeting of political groups. The undermining of protest and political dissent, even where this is disruptive, should be considered as fundamentally incompatible with the proper functioning of a democracy.

What is a public inquiry?

That the Home secretary ordered a judge-led inquiry into the undercover policing scandal is in itself significant. But we should remember that public inquiries are not designed to get justice. Their primary purpose is to get at the truth. Their inquisitorial function make them responsible for a fair assessment of the evidence provided and to report back on its evaluation. In most cases, public inquiries result in recommendations for minor tweaks to practice. They function as a way to regain trust in the system and to re-legitimate the workings of the state.

In theory, a public inquiry should be, …public. That means that hearings and evidence provided to the inquiry’s Chair are conducted in open courts. But under certain circumstances, the Chair can decide for some evidence to be heard in secret.

The cruel irony of the police trying to cover-up their cover-ups is not lost on the campaigners who were targeted. In fact, they may point to the recent history of police denials:

  • The police have withheld evidence from the criminal trials of activists, leading to miscarriages of justice.
  • Human rights claims brought by women against the police, after they learned that they were deceived into long-term, sexual relationships with undercover officers, were referred to the Investigatory Powers Tribunal, where evidence is heart in secret.
  • Even where the Metropolitan Police apologies for the harm caused to the targets of infiltration, they have refused to make any disclosure as to the how and why.
  • In fact, the Met continue to refer to a practice of ‘Neither Confirm, Nor Deny’ even where the true identities of undercover officers are proven.

Public inquiries are not criminal trials. They do not follow an adversarial logic between prosecutors and defendants. But in this instance the battle for the truth has pitched the police against the other, non-state core participants. The latter say they have the right to find out about the extent of the infiltration into their lives. The former will fight to keep key aspects of infiltration secret.

Whether the inquiry will proceed from a ‘principle of openness’ or a ‘principle of confidentiality’ is therefore significant – primarily for those wishing to pursue justice for police wrongdoings, but also for the development of protest law, the sociology of policing and the study of social movements. Therefore the level of confidence we can have in the Pitchford inquiry will be the focus of a new research project at the University of Brighton.

References

Bunyan, Tony (1977) The History and Practice of the Political Police in Britain. London: Quartet Books.

Bonino, Stefano and Lambros George Kaoullas (2014) ‘Preventing Political Violence in Britain: An Evaluation of over Forty Years of Undercover Policing of Political Groups Involved in Protest’, Studies in Conflict & Terrorism 38(10), pp. 814–40.

Doherty, Brian and Graeme Hayes (2015) ‘The Courts: Criminal Trials as Strategic Arenas’, in Jan Willem Duyvendak and James M. Jasper (eds) Breaking Down the State. Amsterdam: Amsterdam University Press, pp. 27–52.

democracy, policing, repression, surveillance