All content from September 2014

Did Spycops Commit Other Crimes?

CPS logo

The attention paid to the decision of the Crown Prosecution Service not to prosecute undercover police officers focused, rightly, on the invasion of privacy and bodily integrity in their sexual contact with women they spied on.

But in the same statement, the CPS ruled out several other charges.

MISCONDUCT IN PUBLIC OFFICE

In order to prosecute misconduct in public office, the prosecution would have to show that an officer knowingly abused their position in order to bring a sexual relationship about

The police have readily and unequivocally admitted such relationships are abhorrent and an abuse of their position. Speaking for the Association of Chief Police Officers, a body that ran several of the political policing units, Jon Murphy said

It is grossly unprofessional. It is a diversion from what they are there to do. It is morally wrong because people have been put there to do a particular task and people have got trust in them. It is never acceptable under any circumstances … for them to engage in sex with any subject they come into contact with.

In March this year the second Operation Herne internal report into undercover policing declared

there are and never have been any circumstances where it would be appropriate… Such an activity can only be seen as an abject failure of the deployment, a gross abuse of their role and their position as a police officer and an individual and organisational failing

So there we have a police report saying it’s a gross abuse of the officer’s position, but the CPS said there’s insufficient evidence that any officer knowingly abused their position.

Everyone admits the relationships happened and they were a gross abuse. If it is a gross abuse then there is a gross abuser. That must be either the manager who authorised it or the individual undercover officer who did it.

Whichever one it is, former officer Bob Lambert is culpable. He was an undercover officer who had a prolonged relationship including fathering a child with a woman he targeted. After he was promoted to running the squad he mentored Jim Boyling who did the same thing.

If Operation Herne is right and it is both an individual and organisational failing then we should see several officers held responsible for each relationship. Even if they blame the individual officer and claim they disobeyed their guidance, it is negligence on the part of the managers.

But if this came to court, we could expect to see officers from both roles blaming each other. That would be a whole lot of dirty laundry being done in public, and would be likely to point to further abuses. This scandal has already become far too large for establishment comfort. It’s no surprise that the CPS – who helped ensure Mark Kennedy’s evidence was kept from court in the Ratcliffe case, leading to a miscarriage of justice and 20 wrongful convictions – has decided to defy the police’s own admissions of misconduct and keep these officers away from court as well.

BREACH OF THE OFFICIAL SECRETS ACT

The CPS also said that

In order to prosecute a breach of the Official Secrets Act the prosecution would have to prove that the suspect in question disclosed information that would, or would be likely to, damage the work of the security and intelligence services

This is thought to be because officers have named colleagues to civilians. Jim Boyling told the activist he married about several other officers’ identities. This led her to tell Helen Steel that her partner John Barker had in fact been police officer John Dines.

Peter Francis

Peter Francis

Additionally, when Mark Kennedy was confronted by activists who had discovered his true identity, he confirmed activist Lynn Watson had actually been a fellow police officer.

Whistleblower officer Peter Francis has been threatened with prosecution under the Official Secrets Act. The fact that neither Boyling nor Kennedy are to face charges for naming colleagues to the activists they targeted implies Francis faces something of an empty threat. The CPS appear to have declared it’s open season for him, and for any other officers who want to right some of their wrongs, to step forward and name names.

Did Spycops Commit Sex Crimes?

CPS logo Two weeks ago the Crown Prosecution Service announced no charges would be brought against undercover police who had sexual relationships with women they targeted.

The fact that the women consented at the time is irrelevant. Consent can be negated if it is later discovered that there was serious deception involved.

The CPS cited three bits of case law it considered before making its decision. A court decided that Julian Assange’s failure to use a condom after he’d said he would could be rape and should be brought to trial. Another case where a man promised to withdraw before ejaculation, but failed to, was also decided as being capable of amounting to rape. This gives us an indication of the threshold of criminal sexual deceit.

If Julian Assange deserves a trial it is risible to say that these police officers do not. Is anyone seriously suggesting that their profound, prolonged sexual deception lasting years – in several cases having children – is not worthy of a court case, but they would prosecute Mark Kennedy if he had once failed to use a condom as promised?

Conversely, if Assange had been sent into the civil service by Wikileaks and spent many years in a life-partner relationship with a civil servant, solely as part of a spying operation, he would surely be prosecuted for the personal damage he inflicted.

The CPS also mentioned the Justine McNally case. She pretended to be a man in order to have sex with another woman and was jailed for three years in 2013. The Court of Appeal reduced it to a nine month suspended sentence and she was released after 82 days. The conviction stands.

McNally was not an isolated case. Gemma Barker developed three online male personas that she used to deceive young women into having sexual contact with her. In 2012 she was sentenced to 30 months in prison for two counts of sexual assault and three months for one count of fraud.

Trans man Chris Wilson did not tell two female partners of his previous gender before initiating sexual relationships. One relationship involved kissing, a second involved having sex. In April 2013 a Scottish court (whose Sexual Offences Act Scotland 2009 is slightly different to England’s Sexual Offences Act 2003) convicted him of “obtaining sexual intimacy by fraud” and put him on the Sex Offenders Register. He was sentenced to three years probation and 240 hours community service.

There can be no disputing that the secret police’s deceit was on a comparable scale – arguably a far greater one – than McNally’s, Barker’s or Wilson’s. They were not merely lying about their job or the fact that they were already married. They were not just concealing a fundamental truth about themselves that their partners believed they were the opposite of. They were only ever in these womens’ lives as paid agents to undermine and betray those women and what they held most dear. They were living a relationship that was controlled and monitored, perhaps even directed, by a committee of unseen superior officers. This cannot be informed consent. It is abuse.

Whether what the police officers did legally constitutes rape is unclear. Ben Fitzpatrick, Head of Law at the University of Derby, examined the idea from a legal perspective last year over a series of four articles. He concludes that there are several areas in which it is possible that there is a claim.

Clare McGlynn, professor of law at Durham University, is of a similar opinion.

 

It is not clear that English law would cover the sexual activities in these cases as sexual offences, and the undercover officers have not been prosecuted.

I do think they should have been charged and prosecuted for these activities. The women would clearly not have consented to sex had they known the men were undercover police officers. I think there is a level of deception in these cases which raises them above the ‘I love you’ sort of deception [where someone pretends to in love to convince someone else to have sex with them].

 

But, put simply, it is untested. The discussions around the definition are reminiscent of those that happened before rape within marriage was finally legally recognised in England in 1991. The CPS also considered charges of indecent assault against the police officers but, as that has the same consent test as rape, they decided not to prosecute.

What happened to the women deceived by police is rare – and its exposure rarer still – so it doesn’t squarely fit any common definitions based on previous, commonplace crimes. But there is no doubting the seriousness of the psychological and sexual abuse. The legal definition of consent and cases cited above mean there is surely a case to answer.

The inescapable conclusion is that if these men were anything other than police officers they would be prosecuted. The decision not to go ahead is a further part of the cover up of the gargantuan injustice of the political secret police.