Don’t Ask, Don’t Tell: Police Responses to Police Misconduct
On 30 September 2021, the Investigatory Powers Tribunal handed down its judgment (IPJ) in the case of Kate Wilson v The Commissioner of Police of the Metropolis and National Police Chiefs’ Council.
In a unanimous decision, the Tribunal concluded that in failing to adequately train and monitor the conduct of a former member of the National Public Order Intelligence Unit (NPOIU) - Mark Kennedy (MK) - AKA Mark Stone - who, in pursuance of police covert operations, had deceived Kate Wilson (KW) into a close personal, affectionate and sexual relationship with him - the Commissioner of Police and National Police Chiefs' Council (the Police) had committed “a formidable list of Convention violations” (IPJ: 128). Specifically, the Tribunal found that KW had been subjected to inhuman and degrading treatment, that her respect for private and family life had been violated and that her rights to freedom of expression, assembly and association had been denied/curtailed, contrary to Articles 3, 8, 10 and 11, respectively, of the European Convention on Human Rights (ECHR)). Finally, the Tribunal found a breach of Article 14 ECHR - which mandates that the rights enshrined within the ECHR should be enjoyed in a non-discriminatory manner. It was said that the impact of “the...failure to provide adequate training or supervision" (IPJ: 115) of covert police officers “fell disproportionately on women” (IPJ: 111).
The Tribunal’s judgement contains a number of striking features. First, despite the fact that the Police had already admitted breaches of Articles 3, 8 and 10, the Tribunal was determined to make findings on “the severity of the admitted breaches” (IPJ: 12); concluding, for example in respect of Article 10, that “[KW’s] rights...have been infringed to the extent that she has claimed, and beyond that already conceded by [the Police]" (IPJ: 125-126). These findings are all the more remarkable in view of the fact that the Tribunal would have been justified in refusing to consider the Article 10 and 11 claims once a breach of Article 8 had been found (IPJ: 120). However, by far the most striking and disturbing feature of the judgment is what it reveals about the attitude of the Police towards any official investigation into the past conduct of its employees - especially its senior officers - and its operational procedures. Despite being placed on notice of issues that were “central...for the Tribunal” (IPJ: 28), the Police simply “chose not to call evidence on the operation of the NPOIU or the dissemination of information within it” (IPJ: 80).
It would have come as no surprise to those who read the Tribunal judgment to learn that “some aspects of the conduct of the [Police’s] case have contributed to the distress and anxiety which [KW] has experienced” (IPJ: 8); nor would it have been difficult for readers to comprehend that but for “the tenacity and perseverance of [KW], often in the face of formidable difficulties, much of what this case has revealed would not have come to light”. (IPJ: 129).
The examples in the judgment of extremely uncooperative attitudes on the part of the Police are too numerous to recount in this short blog post. Overall, the Tribunal recorded “significant gaps in the [Police’s] evidence” (IPJ: 17) - highlighting “the absence of witness statements from MK’s cover officer, his deployment manager and other senior officers from the NPOIU” (IPJ: 24). Most telling was the unwillingness of the Police to supply the Tribunal with information about the training and monitoring protocols for undercover police officers that were in place at the time of MK’s deployment. In this regard, the Tribunal noted that “like many other aspects of this case, the full details of the relevant training for undercover officers have proved elusive and we have had to piece the contents together as best we can from a number of fragments” (IPJ: 65). It is hard to avoid the conclusion that the Tribunal’s inferences over what occurred during MK’s undercover deployment - as damning as they proved to be - were more palatable than the truth that would have emerged had the police properly supplied witness statements and other relevant material.
The judgment concludes with the hope that “these events of some years ago are no longer features of policing in this country” (IPJ: 129). However, the hearing in respect of KW’s human rights claims, which took place over a seven-day period in the spring of 2021, reveals that a still entrenched feature of policing in this country is the efforts that are made to evade scrutiny of procedures, protocols and chains of command when serious questions are raised about the conduct of particular officers.
The severe violations of KW’s human rights were the result of the fact that the Police “had very little concern about the impact of the highly intrusive surveillance by MK, and others, on women in particular” (IPJ: 117) and, more generally, displayed a “lack of interest in protecting women from breaches of Arts 3 and 8" (IPJ; 84). This unconcern manifested itself in several ways. First, in that “MK’s backstory...when the deployment commenced was that he was single” (IPJ: 44), whereas had he been supplied with a “false romantic attachment with another [undercover officer]” (IPJ: 44), there would at least have been some evidence that “consideration was given to...how MK might avoid intimate relationships” (IPJ: 44). Second, to the extent that sexual conduct formed any part of the training of undercover officers, “the emphasis...was on deflecting unwanted sexual advances. It did not take seriously enough, if at all, the possibility that the advances might be made by the [undercover officer]” (IPJ: 71). Third, in the way that “senior officers...chose to turn a blind eye to conduct which was...useful to the operation." (IPJ: 73) - perceiving MK as “a very valuable officer providing extremely useful information” (IPJ: 78).
All of these failings, no doubt, will be borne in mind when the public inquiry into the circumstances surrounding the kidnap, rape and murder of Sarah Everard by a serving police officer gets underway. Although the terms of reference of the inquiry have yet to be established, it is widely thought that, among other matters, the inquiry will be tasked to examine procedures relating to the recruitment and monitoring of police officers. It is to be hoped that some thought will be given to the question of how to ensure that police witnesses are held stringently to the same standards of candour and co-operation that are required of other public officials involved in (quasi) judicial proceedings.
Notes
References are to the page numbers (not paragraphs) of the Tribunal’s judgment.
The main title of the blog reproduces the words (if not the precise meaning) of the Tribunal Judgment (IPJ: 81).
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