Lost Chances

The public Inquiry into undercover policing resumed on Monday 20 November 2017 with a two-day hearing held at the Royal Courts of Justice in the Strand, London. The main business of the hearing was to consider and decide upon legal submissions on whether the real and/or cover names of police officers known or alleged to have been deployed in various covert operations should be withheld from the public record.

The Inquiry has already raised more than its fair share of ethical and legal issues, with questions around the sexual exploitation of women, racial and social justice and access to law being the most prominent. Like many others, I am engaging these issues via the stories of non-state core participants to the Inquiry and through commentary from social and mainstream media sources. The limited aim of this post is to offer some tentative observations as to how a court will deal with evidential uncertainties arising in a civil claim where the uncertainties are a consequence of a decision to " restrict disclosure" of evidence, within the terms of section 19 (1) (b) of the Inquiries Act 2005.

There is as yet no reported civil case relating to the particular deployments falling within the scope of the Inquiry. However, evidence does exist to support the claim that the conduct of certain individuals during the course of their deployment as undercover police officers was such as to amount, in principle, to civil wrongs, including the tort of misfeasance in public office and the tort of negligence-with psychological injury being attendant harms. For example, several civil actions were settled and an apology issued by the metropolitan police to the women claimants, acknowledging that undercover police officers had orchestrated "abusive, deceitful and manipulative" relationships (Telegraph 18.1. 2016).

In all of these cases actual knowledge of the true identify and profession of the undercover officer was the pre-condition of the psychological trauma. Psychological injury caused because a person is thrown into turmoil by the honest and reasonable belief (but a belief not supported by factual evidence) that he or she has been deceived into a relationship would not give rise to any legal cause of action.

Thus, an individual who was closely related to the conditions in which the undercover deployments were targeted and, as a result of his/her proximity, has a reasonable belief that the inquiry holds evidence on the basis of which he or she may have a remedy in private law is particularly vulnerable in the face of a decision to invoke the section 19 restriction measure. Such a decision effectively will leave him or her without any redress against the metropolitan police-unless a court could be persuaded to adjust legal principles in order to accommodate what the claimant will argue is a situation of evidential uncertainty.

To my mind, there is no better source through which we might test the prospects of such a request for accommodation than Helen Reece’s article “Losses of Chances in the Law” (1996:188-206). Although now more than 20 years old, it still provides the best explanation of why the law recognises some claims, despite the inability of a claimant to discharge the standard evidential burden, but rejects others.

After the careful weighing of alternative explanations of cases of which Chaplin v Hicks [1911] and Hotson [1987] are well-known staging posts, Reece concludes that unless the evidence in question is objectively inaccessible, and not merely inaccessible to the claimant due to the existence of artificial barriers to access, the court will not depart from the principle that the claimant must prove the case on the balance of probabilities. Reece draws a distinction between “epistemological” and “objective” uncertainty. It is only in relation to the latter, where “even unlimited information would not help to determine an issue” (1996: 197)) that a court will be prepared to entertain a claim which falls short of the standard of persuasion usually required.

“…. I know of nothing so far in relation to this officer which would suggest that HN58 has done anything which would call for enquiry beyond establishing what HN58 did” (Transcript 2017:66).

“Yes, but … as you yourself have recognised … It is only by disclosing the cover name that we begin to give people the opportunity who were affected by the undercover policing activities of a particular officer to know whether or not that officer engaged in anything wrong. As you will know, the only reason the wrongdoing has come to light so far is because…. individuals have become suspicious in relation to particular officers” (Transcript 2017:66/7).

The above extracted and partly paraphrased record of an exchange between the Inquiry Chair and the lawyer representing the non-state core participants clearly demonstrates that if the section 19 restriction were to be applied to the case of HN58, evidence about HN58’s conduct during deployment will not be accessible to any individual who may suspect that HN58 was involved in events in which he/she was also involved. If HN58 had been engaged in conduct of the kind which the metropolitan police accepted had occurred in relation to the cases which were settled in 2016, the harm HN58 caused would be kept permanently in abeyance. In legal terms, there would, in fact, be no harm. However, the evidence on which it might be concluded that HN58 acted improperly is not objectively inaccessible. The evidence is plainly accessible to the Inquiry Chair. Indeed, in the event of a section 19 restriction, the source of epistemological uncertainty would be precisely the decision to withhold evidence from public scrutiny. If we follow Reece, we are bound to conclude that a section 19 restriction does not produce the “uncertainty in the world”, without which, according to her, courts will not relieve a claimant of the burden of proving that “his version of events is more likely than not to be correct” (1996:204). Thus, in cases where the Inquiry is the only repository of evidence on which a private law action could be founded, a section 19 order almost certainly will put such a claim beyond the effective scope of the civil courts.

Rough and ready as it is, I hope this commentary affords some insight into the extent of trust the Inquiry Chair demands of participants. Not only must he be trusted to treat evidence in such a way as to ensure that the objectives of the public inquiry are achieved, he is also effectively the means through which potential private law claims are filtered out.

The transcript of proceedings offers this post its most fitting conclusion:

“Because of the revelations that have been made, it is possible to reach

a provisional view in some cases that there may be more

revelations and in others that there may not be” (Chair 2017:67).

“That view will always be provisional and may indeed be entirely wrong”(Lawyer for non-state participants: 2017:67).

“Of course” (Chair 2017:67).

References

Hotson v East Berkshire Health Authority [1987] 2 All ER 909

Chaplin v Hicks [1911] 2 KB 786

Inquiries Act 2005 C.12

Reece, Helen. 1996 “Losses of chances in the law”, 59 (2) MLR, 188-206

Undercover Policing Inquiry: draft transcript of anonymity applications, 21. 11. 2017, page 66-67