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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Da Silva & Ors, R (on the application of) v Secretary of State for the Home Department & Anor [2018] EWHC 3001 (Admin) (07 November 2018) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2018/3001.html Cite as: [2018] EWHC 3001 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
| THE QUEEN on the application of PATRICIA ARMANI DA SILVA JOHN BURKE-MONVERVILLE JESSICA (a pseudonym) |
Claimants |
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| - and - |
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| SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
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| - and - |
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| SIR JOHN MITTING, Chair of the Undercover Policing Inquiry, and others |
Interested Parties |
____________________
(instructed by Birnberg Peirce) for the Claimants
Clair Dobbin (instructed by Government Legal Dept.) for the Defendant
Hearing date: 23 October 2018
____________________
Crown Copyright ©
Mr Justice Supperstone :
Introduction
Factual Background
"Purpose
1. To inquire into and report on undercover police operations conducted by English and Welsh police forces in England and Wales since 1968 and, in particular, to:
- investigate the role and the contribution made by undercover policing towards the prevention and detection of crime;
- examine the motivation for, and the scope of, undercover police operations in practice and their effect upon individuals in particular and the public in general;
- ascertain the state of awareness of undercover police operations of Her Majesty's Government;
- identify and assess the adequacy of the:
1. justification, authorisation, operational governance and oversight of undercover policing;
2. selection, training, management and care of undercover police officers;
- identify and assess the adequacy of the statutory, policy and judicial regulation of undercover policing.
Miscarriages of justice
2. The inquiry's investigations will include a review of the extent of the duty to make, during a criminal prosecution, disclosure of an undercover police operation and the scope for miscarriage of justice in the absence of proper disclosure.
3. The inquiry will refer to a panel, consisting of senior members of the Crown Prosecution Service and the police, the facts of any case in respect of which it concludes that a miscarriage of justice may have occurred as a result of an undercover police operation or its non disclosure. The panel will consider whether further action is required, including but not limited to, referral of the case to the Criminal Cases Review Commission.
Scope
4. The inquiry's investigation will include, but not be limited to, whether and to what purpose, extent and effect undercover police operations have targeted political and social justice campaigners.
5. The inquiry's investigation will include, but not be limited to, the undercover operations of the Special Demonstration Squad and the National Public Order Intelligence Unit.
6. For the purpose of the inquiry, the term 'undercover police operations' means the use by a police force of a police officer as a covert human intelligence source (CHIS) within the meaning of section 26(8) of the Regulation of Investigatory Powers Act 2000, whether before or after the commencement of that Act. The terms 'undercover police officer', 'undercover policing', 'undercover police activity' should be understood accordingly. It includes operations conducted through online media.
7. The inquiry will not examine undercover or covert operations conducted by any body other than an English or Welsh police force.
Method
8. The inquiry will examine and review all documents as the inquiry chairman shall judge appropriate.
9. The inquiry will receive such oral and written evidence as the inquiry chairman shall judge appropriate.
Report
10. The inquiry will report to the Home Secretary as soon as practicable. The report will make recommendations as to the future deployment of undercover police officers.
It is anticipated that the inquiry report will be delivered up to three years after the publication of these terms of reference."
"(i) the part undercover policing has had in, and the contribution it has made to, the prevention and detection of crime;
(ii) the nature and scope of undercover police activities as they have been conducted in practice;
(iii) the intended purpose of or motivation for undercover police activities;
(iv) the role and knowledge of Her Majesty's Government, and in particular the Home Office, in undercover police activities;
(v) the effect of undercover police activities upon individuals and the public;
(vi) the stated justification for undercover policing both in general and in particular instances;
(vii) the systems from time to time in place for the authorisation of undercover police operations, their governance and political oversight;
(viii) the selection, training, management and care of undercover police officers; and
(ix) the statutory, policy and judicial regulation of undercover policing." (para 12)
"In the course of its investigation the Inquiry will need to examine any evidence of the targeting of individuals for their political views or participation in social justice campaigns." (para 13)
"That is my priority. It is only by discovering the truth that I can fulfil the terms of reference of the Inquiry. I am determined to do so. In making procedural decisions about the conduct of the Inquiry I will do nothing which I can legitimately avoid which makes fulfilment of that intention more difficult. I will also make no decision whose purpose is not to fulfil that aim." (para 3)
"(i) The Inquiry is at a crossroads. Its preliminary stages will soon be complete.
…
(ii) The premise of the strategic review is that the inquiry into past events will be conducted by me, as chairman, alone. To fulfil its terms of reference, the Inquiry has undertaken to find out, in detail, what happened and why in two police units—the Special Demonstration Squad and the National Public Order Intelligence Unit—over 40 years and to examine successor units since. This will require tens of thousands of documents to be read and the evidence of at least 250 police witnesses to be received and considered. The appointment of additional members to the panel (currently consisting of me, as chairman, alone) would impose a heavy cost in both time and money – the plans set out in the strategic review could not be achieved within the already lengthy timeframe envisaged.
(iii) It is not only the Inquiry which is at a crossroads. If, as has been reported, some non-state core participants are undecided whether or not to continue to participate in the Inquiry, the time for decision will soon arrive. The strategic review sets out how the Inquiry will attempt to find out what happened and why on the assumption that non-state core participants do participate. I do not intend to use coercive powers to make them do so. If they do not, the Inquiry will get as close to the truth as it can without them. There is abundant material in the police files, in the public domain and in the unpublished records of the Herne and Elter investigations. Every former Special Demonstration Squad and National Public Order Intelligence Unit officer able to do so will be required to provide a detailed written statement. The restriction order process has led to officers providing a fuller and, in some cases, franker account of their time undercover than has previously been avowed. I have every reason to believe that the need to give evidence on oath to the Inquiry will lead to further revelations. The absence of evidence from significant non-state witnesses would of course be regrettable and would mean that the foundation for the findings of fact which I could make would be less extensive than would be the case with it; but it would not undermine the purpose of the Inquiry. What would be lost would be a full account of what happened to them.
…
(vi) Once the facts have been found, it would be both practicable and desirable for a wider panel to be recruited to investigate and consider the current state of undercover policing and to make recommendations to the Home Secretary for the future. Profound and, perhaps, difficult questions exist as to the circumstances, if any, in which undercover police officers should be deployed. There is likely to be widespread agreement that their deployment is justified to prevent and/or investigate very serious crimes, including those which put the lives and safety of the public at risk. There will be many different views on the justification for deployments in other circumstances, such as the prevention or control of public disorder. On these issues, extensive public debate and the opinions of a diverse panel would be welcomed by me and, I anticipate, be required to found recommendations for the future capable of commanding widespread public support. …"
"The Inquiry is investigating undercover policing from 1968, including serious and widespread concerns about undercover policing and the behaviour of some police officers. They include:
- Women discovering that, unbeknown to them at the time, their partners were in fact serving undercover police officers;
- Children born as a result of such relationships;
- Undercover police officers have reported on family justice campaigns and social and environmental campaigners;
- There had been reporting on political activism, and the activities of some politicians;
- There was concern that undercover police officers had reported on trade union activity and may have played a role in the blacklisting of workers;
- The identities of deceased children were used by some undercover police officers to help build false personas;
- Concerns that there may have been miscarriages of justice;
- Allegations that officers may have committed serious crimes while undercover."
"One.
Examination of the deployment of undercover officers in the past, their conduct, and the impact of their activities on themselves and others.
Two.
Examination of the management and oversight of undercover officers, including their selection, training, supervision, care after the end of an undercover deployment and the legal and regulatory framework within which undercover policing is carried out. Module Two(a) will involve managers and administrators from within undercover policing units. Module Two(b) will involve senior managers higher in the chain of command as well as police personnel who handled intelligence provided by undercover police officers. Module Two(c) will involve a number of other government bodies with a connection to undercover policing, including the Home Office.
Three.
Examination of current undercover policing practices and of how undercover policing should be conducted in future."
Legislative Framework
"Further appointments to inquiry panel
(1) The Minister may at any time (whether before the setting-up date or during the course of the inquiry) appoint a member to the inquiry panel—
(a) to fill a vacancy that has arisen in the panel (including a vacancy in the position of chairman), or
(b) to increase the number of members of the panel.
(2) The power to appoint a member under sub-section (1)(b) is exercisable only—
…
(b) with the consent of the chairman."
"Suitability of inquiry panel
In appointing a member of the inquiry panel, the Minister must have regard—
(a) to the need to ensure that the inquiry panel (considered as a whole) has the necessary expertise to undertake the inquiry;
(b) in the case of an inquiry panel consisting of a chairman and one or more other members, to the need for balance (considered against the background of the terms of reference) in the composition of the panel."
"The Minister must not appoint a person as a member of the inquiry panel if it appears to the Minister that the person has—
(a) a direct interest in the matters to which the inquiry relates, or
(b) a close association with an interested party,
unless, despite the person's interest or association, his appointment could not reasonably be regarded as affecting the impartiality of the inquiry panel."
"Time limit for applying for judicial review
(1) An application for judicial review of a decision made—
(a) by the Minister in relation to an inquiry, or
(b) by a member of an inquiry panel,
must be brought within 14 days after the day on which the applicant became aware of the decision, unless that time limit is extended by the court."
The Decision Challenged
The Correspondence
"The Chair is of course a single person with the limited experience of being a full-time specialist Judge. It can only be useful to broaden the perspective of the Inquiry by adding a panel."
"… with the appointment of a new Chair to the Inquiry, and now that the Inquiry has been running for two years, this would appear an opportune moment to ensure that the Inquiry has the most effective structures in place.
I will carefully consider the representations made in your letter but I must also consider the counter-points; for example a single chair is often able to work through complex issues decisively. To assist my consideration of this matter, I will seek the views of the Inquiry Chair.
Once I have seen the views of the Chairman and considered this matter fully I will write again to you setting out my considered opinion."
"After consulting the Chair I am satisfied that the Inquiry has the resources and expertise necessary to deliver its current programme of work. Sir John Mitting is an extremely experienced High Court Judge, has demonstrated his fairness and independence throughout his career, and he has my full support. I am confident in the Chair's suitability and impartiality for continuing his predecessor's approach and discovering the truth in the most open manner possible.
It is important that the Inquiry is able to carefully consider the evidence it has received in order to fulfil its terms of reference. However, as the Inquiry progresses through its phases of work, I will keep the need for panel members under review."
"Because there is no known allegation of misconduct against him when deployed as an undercover officer and because the nature of his deployment and what is known of his personal and family life make it unlikely that it would be necessary to investigate possible misconduct even if details of his deployment were made public." (Minded-to note 20/12/17, para 5)
At a hearing on 5 February 2018 Ms Kaufmann, on behalf of the non-state non-police core participants, submitted that wrongdoing could not be ruled out on the basis of an individual's personal or family circumstances. Ms Deighton said that in response "the Chair underlined the nature of his assumptions". However, on hearing an example of an officer whose marriage survived relationships with "other women", the Chair said:
"Alright. I may stand accused of being somewhat naive and a little old-fashioned. In which case I own up to both of those things and will take into account what everybody says about it, and I will revisit my own views."
Ms Deighton said that "In the event the Chair restricted both the real and cover names albeit with varied reasons (Ruling 22/2/2017)".
"1. The Chair made assumptions about what a man's marital history says about his propensity to misconduct himself at work. The assumptions are demonstrably wrong and should play no part in this Inquiry.
2. The Chair admits these assumptions stem from 'the experience of life'. There is little to suggest that there is sufficient cross-over in his experience of life with that of those spied upon or the undercover officers to justify this.
3. That these assumptions have played a role taints judgments the Chair makes about the behaviour and credibility of officers and/or public confidence in those judgments. This concern is rendered all the more serious by the fact that the role of sexism is an issue in this Inquiry.
4. The Chair admits to being 'somewhat naïve and a little old-fashioned'. Such traits should play no part in this Inquiry.
5. In part biased by those assumptions the Chair is prepared to protect the anonymity of a key officer in the Inquiry thus effectively preventing the Inquiry hearing evidence from those he impacted on—either about what he did or about the effect on them of what he did.
6. That he is prepared to investigate this officer without evidence from those impacted upon i.e. largely on the basis of evidence from the police will undermine the findings of and public confidence in the Inquiry. It will disable the Inquiry from scrutinising the conduct of this officer.
7. Further it highlights the failure of the Chair to recognise the crucial role that those spied upon should have in this Inquiry. This not only damages the Inquiry but is offensive to those who have been spied upon."
"Your letter of 26 February includes various Chair quotes to highlight concerns about a risk that decisions on anonymity applications from undercover officers may be in part biased by the Chair's assumptions. However, taking into account the full transcripts of open hearings, it appears that the Chair has kept an open mind and accepted the force of arguments put forward by legal representatives to challenge assumptions made in 'minded to' notes and subsequent rulings on anonymity applications. As quoted in your letter, the Chair has stated that he 'will revisit my own views'. He has confirmed that, having done so, the fact that he may not arrive at a different judgment 'doesn't mean to say that I do not accept that I did not accept it had force'.
I also understand that at the 21 March preliminary hearing the Chair said that 'every case does have to be decided on its own facts'. This followed the Chair's statement of 22 February, which recognised that a judgment must be drawn by the Inquiry but that this will remain open to challenge by both officers and non-police non-state core participants. In addition, the statement makes clear that judgments may be subject to review taking into account new evidence that may come to light as the Inquiry progresses."
"… As to his open mind, we agree that the Chair stated that he would revisit his views and stated that when he did not change his mind it did not mean that he did not accept arguments against him had force. The fact remains however that he did not change his mind on the basis of NPNSCPs [non-police non-state core participants] submissions. He has never done so… This intransigence is worrying enough in itself. However you will understand that it is exceptionally worrying that the only basis for a change of mind was the introduction of new evidence. …
As to bias, Cyrille Marcel misunderstands the primary concern of my client. It is not bias against him or other NPNSCPs, it is a concern that there appears to him to be a fundamental lack of understanding about the experience of those spied upon, their dignity and value to the Inquiry, the principles of openness and thoroughness and the means of achieving it. …
Lastly Cyrille Marcel omits a worrying extract of the transcript of March 21 from his letter. In this extract the Chair intimated he made the offending remarks about marital life and likelihood to misconduct 'in the hope that it would prompt reactions from people' (p.34). This is not an approach that my client who is seriously and emotionally engaged in this Inquiry can be expected to stomach.
In the light of this and our previous letters my client asks you to consider the urgent appointment of a panel now."
"… The appointment of a more diverse panel only at the 'lessons learned stage' would be far too late. The ability of the panel to identify the lessons to be learned for the future will depend on the quality of the assessment of what happened in the past. … (page 3)
The assessments required in the context of this Inquiry are not limited to determinations of fact, which are then to be applied within the framework of applicable law (although both such tasks will be required), a crucial additional step is that the panel will inevitably be engaged in sensitive value judgments at every stage of the process. …" (page 3)
"Second, in light of the approach being taken by the Chairman to anonymity decisions…, it is now clear that significant proportions of the Inquiry's proceedings will take place in closed session, from which both the public and all those other than the police and other state agencies will be excluded. The consequence of this is that the important benefits of open justice – judicial accountability, public scrutiny, informed public debate and confidence in outcomes – will be diminished. This is an additional feature of this Inquiry which sets it aside from most other inquiries and which off-sets many of the advantages of having a lone chairman. In the context of hearings from which the public and dissenting evidence is excluded, it is likely to be a positive advantage for there to be a panel with a range of views. Although a diverse panel cannot replace the benefits of public scrutiny, it would at least provide some element of check on the unscrutinised decision-making of a single individual – a factor which is likely to weigh heavily on public confidence." (pages 4-5)
"I take your client's concern very seriously. I am committed to ensuring that the Inquiry can deliver its important work to get to the truth of what happened and ensure that all lessons are learned to restore public confidence in undercover policing.
Restriction orders are a legal matter for the Inquiry as the Inquiries Act 2005 provides for the Chair alone to make restriction orders. Safeguarding the independence of the Inquiry is of paramount importance, and it would not be acceptable for the Government to intervene in an Inquiry's decision-making. Also, noting your concerns, I understand Sir John Mitting has recognised that judgments made on applications for anonymity remain subject to review as the Inquiry progresses.
On the need for additional panel members, the Inquiry has now published its Strategic Review, which sets out the Chair's views and intentions to ask the Home Secretary to appoint a panel to inform the Inquiry's lessons-learned stage. In line with the former Home Secretary's commitment I will continue to keep the need for a panel under review."
The Parties' Submissions and Discussion
Grounds of Challenge
i) First, the Secretary of State failed to have regard to relevant considerations.
ii) The Secretary of State failed to have regard to sections 149(b) and (c) of the Equality Act 2010 ("EA 2010").
Further, Ms Kaufmann criticises the Secretary of State's response to the Pre-Action Protocol letter for containing what she contends is ex post facto reasoning.
Ground 1: Failure to have regard to relevant considerations
Representations made subsequent to 29 March 2018 and further evidence
"(a) Both Kelly's letter of 24 April and the 13 women CPs' letter of 3 April raised the issue of the Chair's comments about married men first made at the hearing on 5 February. Significantly these representations addressed Mr Marcel's observations in the letter of 29 March that the Chair had revisited his views in light of the forceful arguments put forward to challenge his assumptions, and showed that this had not happened, but on the contrary the Chair had continued to make those assumptions.
(b) The letter of 24 April raised a further concern based on the fact that much of the Inquiry will be held in closed session from which the public and all non-state participants will be excluded. In so doing it also corrected a misapprehension on the part of Mr Marcel in his 29 March letter that the Chair had refused anonymity in the majority of cases.
(c) The e-mail of [23 May 2018] raised the further concern that, in the light of his comments at [iii] of the foreword to the Strategic Review [see para 12 above], the Chair believed that he could get to the truth without the meaningful participation of those spied on."
"I consider that the Chair made a number of comments at those meetings which support the Claimants' concerns, raised in these proceedings, that the Chair does not have the expertise to investigate, without the assistance of additional panel members, the extent to which institutional discrimination, on grounds of race, sex, political beliefs and socio-economic class, has shaped undercover policing, in particular that conducted by the Special Demonstration Squad and the National Public Order Intelligence Unit."
The Parties' Submissions and Discussion
"Only two factors are expressly mandated by the 2005 Act to be taken into account in the appointment of an inquiry panel. Section 9 has a prohibition on appointing to the inquiry panel anyone with a direct interest in the subject matter or a close association with an interested party, except where the appointment could not be reasonably regarded as affecting the impartiality of the inquiry panel. Section 8(1)(a) mentions 'the need to ensure that the inquiry panel (considered as a whole) has the necessary expertise to undertake the inquiry'; and section 8(2) adds that for the purposes of section 8(1)(a) the minister may have regard to the assistance that may be provided by any assessor who is to be appointed. If an inquiry panel is appointed consisting of a chairman and one or more other members, then section 8(1)(b) requires the minister to have regard to the need for balance (considered against the background of the terms of reference) in the composition of the panel. But section 8 does not state that a panel consisting of a chairman and other members is more desirable in the interests of balance in the diversity sense than an inquiry panel consisting of a chairman alone…"
"First: that the Chair had the requisite expertise to conduct the Inquiry; second: that the delay that would be engendered by the appointment of a panel would adversely impact upon the Inquiry's programme of work; third: that such delay would impact upon the interests of certain core participants with protected characteristics; and fourth: that the specific examples or transcript extracts relied upon did not demonstrate the Chair to be of a closed mind when it came to sensitive issues to be determined in the Inquiry."
Ground 2: Failure to have regard to ss.149(b) and (c) of the Equality Act 2010
"In light of available information to date, the Home Office has assessed the risks of impact on protected characteristics under the Equalities Act 2010, discrimination, and impact on relations between Core Participants, of a decision whether to appoint panel members to the Inquiry at this time.
Relevant Protected Characteristics
The Home Office recognises that some individuals and communities may be disproportionately affected by decisions on the composition of the Inquiry on the grounds of:
Race/sex/belief:
- Core Participants sharing one or more of these protected characteristics may include:
- individuals and groups who were targeted in undercover deployments and potentially subject to discrimination or harassment on the grounds of gender, race or political/social belief; and
- individuals with whom undercover officers who are Core Participants to the Inquiry had intimate or other relationships without being aware of their real identity.
Age:
- Core participants who share this protected characteristic will be elderly NSNPCPs and undercover officers who may be anxious due to their health or otherwise, that the Inquiry proceed as quickly as possible to achieve its objectives.
Disability:
…
Gender reassignment, pregnancy and maternity, religion or sexual orientation:
- Although there is insufficient information available to determine whether these protected characteristics are engaged, it would appear reasonable to assess the risks of impact as being similar to the protected characteristics known to be engaged on the basis of NSNPCPs:
…
- Particular concerns about the prolonged duration of the Inquiry (beyond 2018) in relation to age and health, and confidence in the outcome of the Inquiry.
Impact on protected characteristics
Disproportionate impact on protected characteristics – key considerations:
- The UCPI was established to be led by a single Chair, who is a retired judge with experience in criminal justice. It is independent from the Home Office.
- The purpose of the UCPI is to uncover the truths on deployments which may have wrongly targeted NSNPCP individuals and groups as soon as possible. This is to learn lessons and increase public confidence in undercover policing.
- The UCPI Terms of Reference are intentionally broad for the Inquiry to cover a wide range of different undercover deployments, and investigate their motives and oversight. This is with a view to identifying failings, and where necessary, refer cases of potential miscarriages of justice to a panel independent from the Inquiry.
- There are over 200 core participants, including circa 190 NSNPCPs. It would be difficult to assess the impact of the 'no change' option (not to appoint a UCPI panel other than the Chair at this time) as being disproportionate on certain core participants in relation to each protected characteristic.
- On the contrary, a decision to appoint a UCPI panel would likely introduce delays in the Inquiry at this time. This could create or increase tensions between core participants with different or conflicting interests in the Inquiry and could disproportionately affect individuals sharing one or more protected characteristic – in particular, individuals who are elderly and/or considered to be disabled due to an existing or evolving health condition, including mental health potentially attributed to the delay.
Remedial actions:
- A decision to defer considerations on the need for any panel member(s) or assessor(s) allows the Inquiry to:
- expedite its current programme of work, reducing the risk of a disproportionate impact from delays on some Core Participants and fostering good relations between them; and
- enable further considerations on appointing a panel to be informed by the Inquiry's progress and Core Participants representations, including an assessment of impact on protected characteristics.
- The new UCPI Chair has recognised NSNPCP concerns and committed to discover the truth in the most open manner possible."
Conclusion
