What Next? Report of the Spycops Inquiry Hearing, 26 Jan 2021

A report from the Undercover Policing Inquiry’s hearing of 26 January 2021, discussing how future hearings involving witnesses will be organised.

The Undercover Policing Inquiry (UCPI) was established in 2015 in response to multiple scandals where undercover police had abused their power over a fifty-year period. Officers infiltrated political groups for years at a time, living as one of the activists. They frequently stole identities, orchestrated wrongful convictions, and formed intimate relationships with women they spied on.

After five years of preliminary process, it was only in November 2020 that the Undercover Policing Inquiry first began hearing evidence. It was a worrying time for many of the victims of spycops who have been designated as ‘non-police/state core participants’ (NPSCPs) in the Inquiry, who had spent the intervening years explaining why the Inquiry’s approach was problematic.

For them, the UCPI had focused far too much of its attention on meeting the police’s preferences, while excluding the NPSCPs from effective participation. There was a sense of exhaustion in those who were subjected to the spying who felt that they were consistently being considered last, as if they were an irritant rather than a group of victims who should be at the heart of the process.

Multiple times they had argued they should be more fully centred, given the wealth of experience and knowledge they brought with them. Instead, they were made to wait as the police delayed matters, filing an excessive number of applications for anonymity, regaling the Inquiry with fanciful fears of media intrusion, and worries about what the neighbours would think. These were undercovers and managers who had destroyed lives and careers, violated fundamental human rights, and engaged in state-sanctioned rape. Yet, it was their needs which were constantly being put first, the Inquiry granting them their wishes and all the time they needed to do it.

We have said all this many times, and nothing has changed. Yet it remains the context in which last week’s hearing took place.

A CHANCE TO LEARN AND IMPROVE

The hearing held on Tuesday 26 January was a chance to learn from the many mistakes of the November 2020 hearings. It was welcomed by many NPSCPs as an opportunity to feed in their thoughts on what went wrong and how things could be improved.

The next set of evidence hearings (Tranche 1, Phases 2 and 3, covering the Special Demonstration Squad activities 1973-82) are currently set to be heard in April and July, so it is important these issues are resolved now.

Throughout the day we heard from both police and NPSCPs’ representatives. Numerous submissions had been made in writing, and an extensive note from Counsel to The Inquiry was able to resolve a number of these so they did not need to form part of the discussion.

Much of the focus was procedural or legal in nature, focusing on the conduct of particular aspects of the hearings, or the underlying points of law which different parties were relying on to argue their point. At times it became quite technical, but we will try to give an overview of the main issues discussed below.

However, in amongst it, various bits of important information emerged. In particular, we learned that the majority of the pre-1995 files did not come from Metropolitan Police Service’s Special Branch (which had overseen the Special Demonstration Squad). Rather they were obtained from elsewhere – which the begs the question whether they came from MI5. And if not them, where?

Perhaps less surprising was the Inquiry’s Chair, Sir John Mitting, commenting that he had seen little mention in the formal reports of relationships that undercovers had deceived their targets into. Heather Williams QC, representing many of those women, made the salient point that this was precisely why the women deserved full access to their files, as only they could give the nuanced interpretation needed to show where it was hidden.

HOSTILITY TO VICTIMS

A powerful moment came when Matthew Ryder QC, representing a number of NPSCPs, spoke on behalf of Celia Stubbs. Celia, a long time campaigner, was the partner of Blair Peach, who was murdered by police in 1979 at an anti-racist demonstration. Hers was among the first such family justice campaigns spied upon. The murderers were never brought to justice.

Now in her 80s, and despite the risk of Covid, she attended the November hearings, keen to witness them. The measured words of her barrister conveyed her anger and strength of feeling at the betrayal she felt, the importance of the public having confidence in the Inquiry, and how it was failing in that.

Ryder said:

‘she asked us to make clear that she felt disillusioned and unhappy at the hearings. She felt that the structure of how she was able to be involved and the way the Inquiry was carried out was unsympathetic and to some extent, she sometimes felt, hostile to her concerns and her interests as a core participant.’

Ryder then made the powerful conclusion:

‘There is little to be gained from an Inquiry that… doesn’t end up with the confidence of those it was set up to benefit, and only has the confidence of the State Participants it was set up to scrutinise. Therefore the confidence of those core participants is something that is valuable, is very important, we know, to the functioning of the Inquiry and to the end result of the Inquiry, and therefore we do hope that through part 2 and following parts, we can be in a situation where the core participants do feel confident, do feel engaged.’

Though it came towards the end of the proceedings, it was one of those moments that brought the hearing back to earth, grounded in the reality of what had happened to people. Those of us who were at the hearings in November with her are all in awe of her determination to partake, to not give up seeking answers. Forty years on, she deserves justice.

All the above points impacted on the different topics of discussion and we will go into them further. First point on the agenda though was the bruised egos of the police.

BRUISED EGOS AND THIN SKINS

Mitting opened proceedings with reference to a recent letter sent by the Metropolitan Police, who were feeling stung by the criticism that they had been obstructive to the Inquiry. They wanted to challenge this and, although he is the Chair, Mitting spoke up for them.

It was at this point that he noted that much of the pre-1995 material had come from sources other than the Metropolitan Police, and the form in which the Inquiry had obtained it had proved challenging to handle. Mitting said that it contained information which would be damaging to the public interest if it entered the public domain, and the Metropolitan Police had been diligently working to prevent this happening. The irony of that was lost on both Inquiry and police.

Mitting was concerned that we might be suffering from a misperception, that the police were not being forthcoming and candid with this Inquiry. What he didn’t factor in is that we’ve all had enough experience of the police behaving in precisely the opposite way in other inquiries and inquests, and little to date has done anything to change our minds.

Many of the women deceived into relationships by spycops took legal action and were met with a refusal to respond, claims that it was impossible to release any information, the assertion that the relationships weren’t authorised so they were nothing to do with the police as an institution, and many other tricks of dishonest delay. Cases took years to settle and indeed Kate Wilson’s, filed at the Investigatory Powers Tribunal in 2011, is still not finished. It is a pattern familiar to victims of State abuses, a double injustice as they face not only the wrongdoing, but also the attempts to avoid accountability and obstruct justice.

Indeed, the reason that it’s taken so long for the Undercover Policing Inquiry to reach this stage is that the police have dragged it out – by filing as many applications for anonymity as they could get away with – for the past three years, and the Inquiry has not stopped them from doing so.

Throughout the day of the hearing, lawyers for the undercovers relied on how fragile the former undercovers and managers were. Steps towards greater participation were countered by how it would impact on these former officers. They would, apparently, become more anxious and less candid in giving their evidence, so the Inquiry itself would lose out. At points it felt like a threat being held over the Inquiry. The police’s position was they liked things as they had been and opposed any relaxation in favour of greater openness.

Their sensitivity was also raised in written submissions with complaints that the word ‘scum’ had been used in relation to spycops on Twitter. A search showed that, up until this point, it has actually happened a handful of times, and even then in response to descriptions of reprehensible behaviour that would make any ordinary person feel angry. This is hardly the basis for making a formal submission to the Inquiry.

The hearing was treated to a full display of the thin skin of police officers in response to any form of criticism rather than acknowledging their gross abuses of power.

ACCESS TO FILES

The NPSCPs have consistently demanded access to the full files held on them. Mitting said that the Inquiry does not have access to the Special Branch’s ‘Registry Files’ on individuals. However, he also implied that he was aware of the ‘Personal Files’ – MI5’s equivalent. He has seen some of them and noted that they contain material from a wide variety of sources, many of which fall outside of the Inquiry’s terms of reference. As such, he said they are too much to deal with and the Inquiry needs to examine other material first.

This was angrily rejected by Dave Smith of the Blacklist Support Group on Twitter, who noted that this was the sort of material that was being passed along to businesses to blacklist workers, and included information gathered and supplied by the undercover police.

Heather Williams, speaking on behalf of the women affected, also made much of this. As observed above, she noted that the nuance needed to accurately interpret files could only come from their subjects, the women themselves. She cited a case where a mention of a wedding in the gathered intelligence was enough to trigger a memory of a woman targeted for a relation attending that wedding with the undercover, even though that was not mentioned in the files.

Williams made the point that the women were in a unique position and had particular interest in seeing the files. Not least in understanding how they’d been set up to be targeted by the undercovers, particularly in developing the ‘false air of commonality’ used in so many cases to prepare the ground for the relationship. She argued this point was totally within the terms of the Inquiry.

Mitting’s counter was to say that he had not seen anything to suggest that undercovers had read the files of those they were interacting with, or had gone back to see the files of those they were in relationships with. According to him, deceitful relationships being mentioned in documents are only mentioned afterwards, when managers have discovered the relationships. This knowledge emerged with hindsight, not in what their predecessors knew in hindsight.

Nonetheless, he did say that requests for information made to police and former undercovers did take such issues on board. It was not his intention that the Inquiry would routinely obtain such personal files. However, a small amount of material in them was of relevance and were being processed so as they could be made available. He also noted that the personal files were the property of MI5 and he has no legitimate justification to compel them to do more than what they’ve already done to assist the Inquiry.

Access to the personal files on individuals has been a fundamental demand of the NPSCPs from the outset. The spying on them was plainly wrong and everyone subjected to it deserves to know the truth. That cannot happen without them seeing what intelligence was gathered on them, unfiltered by police censors. For Mitting to bluntly say it is not going to happen is a huge obstacle in the path to the truth. It undermines the purpose of the Inquiry and takes away a lot of the point of why many NPSCPs were involved in the first place.

ACCESS TO ‘BUNDLES’ OF EVIDENCE FOR HEARINGS

A theme echoed by a number of those involved has been insufficient time given to access the ‘hearing bundles’ of evidence released prior to relevant hearings. For the November 2020 hearings, it was over 6,000 pages delivered four weeks before the hearings began. The NPSCPs have contended they’ve not been given enough time to process such a large amount of material and have been arguing for more people to be able to see the it, and to be given it much sooner.

The lack of access pre-1995 has also impacted on the lawyers for the undercovers. Those deployed before 1995 have not had sight of the material the Inquiry has been relying on. Thus, their lawyers are under the same time pressure to process it.

The Inquiry responded that it was looking at improving the processes, though constrained by issues around what could be released into the public domain. Some material could be released sooner, such as the Special Demonstration Squad’s Annual Reports.

While the police were also concerned about widening access, Mitting did take on board various points from the media and NPSCPs, and agreed to widen the scope of who had advanced sight of the hearing bundle evidence. This should ease the burden on the lawyers and NPSCPs and have positive impacts on the ability to prepare in advance for future evidence hearings.

AUDIO, LIVESTREAMING, PRIVACY, AND THE EQUALITIES ACT

The hearing then turned to a tangle of inter-related issues whose arguments fed into each other. The basic point though was the NPSCPs arguing there should be greater access for the public to the hearings, and particularly in light of the pandemic. Specifically, they argued that there should be full online live-streaming (audio-visual) of the hearings to the public as the basic starting point, and deviations from this need to be justified.

Although many similar inquiries, such as Grenfell, are live-streaming their hearings, for the November 2020 Undercover Policing Inquiry hearings, witness evidence was only live-streamed to one 60-person venue in Covid-stricken London. Online access was limited to a live transcript of what was being said.

The police representatives were very much opposed to any form of streaming of hearings, claiming (but without providing evidence) that this would be a security risk. The importance of seeing and hearing witnesses as they gave evidence was acknowledged by Mitting and the NPSCPs.

The police argued for a very restrictive view, saying any live-streaming would undermine the anonymity orders granted to police witnesses. They took the position that if a form of live-streaming was to happen, it should be only be audio, and it should be made subject to various security restrictions – individually watermarked, requiring registration to access it, that it should not go beyond the jurisdiction of England and Wales. At times this became quite technical in nature as to what was or was not possible.

Some of the NPSCPs took a very different approach. Rajiv Menon QC, representing the clients of Jane Deighton (in particular, the family of Rolan Adams, and Ken Livingstone), put forward the case that in restricting live-streaming the Inquiry was breaching its duties under the Equalities Act. Those at greater risk from Covid were being indirectly discriminated against, for example people of certain ethnic minority backgrounds, and elderly people.

Mitting responded by taking the discussion down another the path of legal technicalities, as to whether or not the Inquiry could claim to be exempt from the obligations of the Equalities Act. Menon pointed out that up until now, the Inquiry has acted as if it is covered by the Equalities Act, and that its operations are not exempt.

The decision about providing live-streaming is an operational one, about the services the Inquiry provides, rather than a judicial one. Menon also pointed out that nobody has yet supplied a clear legal authority on this matter (which only became an issue with the release of the Counsel to the Inquiry’s Note the day before) and more time should be allowed for research before a final answer is given by Mitting.

Mitting agreed to allow all parties another seven days to provide written statements about this issue.

PROTECTING SPYCOPS’ ANONYMITY

Owen Greenhall, also acting for the NPSCPs, added that the ‘restriction orders’ granting anonymity to spycops were granted some years ago. Most of these former officers were awarded them on the grounds of privacy, rather than security concerns. The situation has completely changed since then, and they really should be revisited. He noted that for the upcoming hearings (in April) this should not be too onerous a task, as there are only ten former officers due to give evidence then.

Mitting pushed back hard on this, saying it would involve far too much work and add to the delay. Representatives for the police asserted that changing the restriction orders now might upset the former undercovers and impact on their evidence. In one technical point, Mitting said he considered visual live-streaming was not possible because the existing anonymity orders prohibited the release of images.

Mitting’s final position on these matters is yet to be determined. He accepted that improvements on last November’s arrangements were needed, and that some measures could be taken. His starting position seems to be that access to the Inquiry should, as closely as possible, resemble a courtroom under normal conditions. In light of the ongoing pandemic, this means sticking closely to the model of the November hearings, where live-streaming of the officers giving evidence in real time was restricted to a maximum of 60 pre-registered people who were willing and able to attend a hotel in central London.

The online rolling transcript seems set to continue with its ten minute delay, though hopefully with better functionality. Mitting also seemed to accept the need for some kind of audio feed, but it is not clear how restricted access to this might be.

Another point of concern is that registration for attendance at the November hearing was done for the purposes of test and trace, but Mitting saw it equally as a security measure in case of a restriction order being breached. NPSCPs raised the natural concern that they did not want this data being passed on to the police as a matter of course.

ADVERSARIAL VS INQUISITORIAL

Before we address the remaining discussions of the day we need to cover a technical legal point: the difference between adversarial and inquisitorial hearings. Most hearings we encounter are the former, the normal day-to-day life of court cases where evidence and witnesses are examined, cross-examined and challenged in an effort to get to the truth. There is an implicit assumption that someone might be lying to justify their actions.

Despite the name, inquisitorial hearings are meant to be different, taking the approach that everyone is cooperating with the proceedings. A public inquiry such as the UCPI is meant to be of this kind. There is no aspect of punishment, merely helping the State to learn, and giving the non-State parties confidence that the learning has been comprehensive and open. Mitting himself has repeatedly said his aim is simply to get to the truth.

Sadly, regardless of the Metropolitan Police’s correspondence, the NPSCPs often feel this memo has passed the police by.

Rajiv Menon, responding to the recent letter from the Metropolitan Police (mentioned above) made the following observation:

‘Specific complaint is made in the letter of what was said in our opening statement, namely that: “The police have used every weapon in their arsenal and spared no expense to obfuscate, obstruct, undermine and delay an open, transparent and fearless public inquiry into undercover policing.”

You [Mitting] have address this letter this morning, sir, in your introductory remarks, and have effectively confirmed what the Metropolitan Police Service have asked you to do, namely that there is no basis for the allegation that the Inquiry’s work has been or is being obstructed by the Metropolitan Police Service….

[The lawyers for police core participants] continue to suggest that it is the Non-State Core Participants who are responsible for the Inquiry not being as inquisitorial as it should be. We say nothing is further from the truth is in fact the correct position.

If the Non-State Core Participants are marginalised, as we say they have been, and prevented, through their lawyers, from participating effectively and meaningfully in the Inquiry, if the State’s obsession with secrecy is permitted to have a foothold in this Inquiry at the expense of openness and transparency, then it can hardly come as a surprise that there is, at times, an adversarial air to the proceedings.

It should never be forgotten, in our submission, that it is the Non-State Core Participants who are the victims in this Inquiry of abuses of power by the State, in some circumstances with the most devastating of consequences.

The former undercover police officers, with respect, are not victims and should never be treated as such.’

This set the tone for the debate as to how the Inquiry should approach questioning of witnesses. This falls into two related categories – ‘Rule 10’ questions and cross-examination.

QUESTIONING WITNESSES : RULE 10

The Inquiries Act 2005 sets out the ways in which evidence should be explored in an Inquiry of this ‘inquisitorial’ nature. Usually, one person – the Counsel To the Inquiry – is appointed by the Inquiry to ask all the questions of witnesses. Cross-examination is not especially encouraged; the emphasis is on witnesses voluntarily cooperating with the Inquiry.

The Inquiries Act does allow lawyers who represent core participants to submit questions seven days in advance, and ask the Counsel to the Inquiry to then put the questions to the witnesses. These are called “Rule 10 Questions”. However, the Inquiry is not obliged to act on these requests.

Rule 10 Questions were submitted at the November hearings, and some of the NPSCPs’ questions were asked. Both Owen Greenhall and Rajiv Menon addressed this issue, and noted that the process was beset by a number of problems, including:

• too much material to process in too little time;
• difficulties in communicating with the Inquiry team in the time available;
• a lack of feedback about the questions submitted – which ones had been accepted and would be asked, and which ones wouldn’t;
• a lack of follow-up on points of significance raised by the witnesses answers when the questioning was performed by the Inquiry’s Counsel rather than the NPSCPs’ own lawyers.

Overall, it had been frustrating and exhausting, and illustrated the advantages of making the evidence (the ‘hearing bundle’) available to NPSCPs and their legal teams much earlier.

It was generally recognised there was room for improvement and that meetings should be set up to facilitate a better process. All parties agreed that doing things earlier would improve the overall process and resolve many of the issues. Mitting and the NPSCPs acknowledged that no process would be perfect but where things came up they could be dealt with on a case by case basis.

CROSS-EXAMINATION OF WITNESSES

A more contentious issue was whether or not witnesses should be cross-examined. Again, Greenhall and Menon led on this for NPSCPs, requesting that in the interests of efficiency and smooth running there should be 30 minutes at the end of a witness giving evidence for others to cross-examine.

At the November hearing, the NPSCPs’ barristers asked for and were granted permission to ask questions of the police witnesses. One set of questions sparked heated exchanges with Mitting. These sought to explore the truth around the relationship between one of the early spycops and one of the activists they were spying on, and the possible links to a miscarriage of justice.

This time, lawyers representing some of the police (and Mitting himself) used the phrase “pre-planned ambush” to describe the way these questions were put, in an attempt to characterise the process as unfair, and to oppose direct questioning going ahead. They argued that only the Counsel to the Inquiry should be permitted to ask questions of witnesses, as otherwise the process would be ‘too adversarial’, increase the ‘anxiety’ suffered by these witnesses, and lead to them being less forthcoming with their evidence.

There was no mention made of the fact that these witnesses are former police officers, professionally trained to give evidence in court and very experienced in doing so.

Another suggestion put forward by the lawyers acting for the NPSCPs was that the Inquiry should automatically schedule time for questioning after each witness has given evidence, so last-minute questions could be asked if necessary. This would avoid the convoluted process of first applying to Mitting for permission to ask each question (and providing him with details of the reason for asking IT), so would make the entire process more efficient, and be less disruptive. This suggestion was also mooted, with the observation that if the Rule 10 system was working well then this need for extra questioning would only be required occasionally. Plus, senior Counsel could be trusted to use their professional judgement wisely.

Predictably, Mitting was not a fan of this idea being made the new normal. He did accept that the Rule 10 Questions process needed to be improved. He also accepted there would sometimes be a need for cross-examination, for example when there was a significant dispute of the facts arising out of the evidence given. He agreed that this issue could be handled on a case-by-case basis. He repeated previous remarks that what he was most concerned about having an effective (from his point of view) framework in place as to how the hearings would be structured, emphasising his need for order and for control over the proceedings.

According to lawyers representing some of the undercovers, the very idea that they might be asked questions by anyone other than the Counsel to the Inquiry was too much and would cause extra anxiety. They opposed permission to question witnesses being granted to any of the NPSCPs’ lawyers.

The definition of ‘ a significant dispute of fact’ was addressed by Heather Williams, pointing out that a number of officers are denying the extent of their relationships or even having had them at all. There, however, it was again argued that a different approach should be taken.

Mitting had on previous occasions implied that if a core participant wanted their representative to ask questions on their behalf, it would only be permitted if they too were willing to be cross-examined. Williams noted this has distressed the victims, already upset by the biased treatment by the Inquiry against them, and worried about the psychological impact this would have on them. Mitting appeared to row back to some degree on this requirement, clarifying his earlier statements. It is to be noted that he has said numerous times that he would not force the victims to give evidence.

Richard Whittam QC, on behalf of the undercovers represented by Slater & Gordon, said they expected disputes of fact between the undercovers and their managers, so they might also wish to cross-examine future witnesses.

REPRESENTATION FOR THE SPIED-UPON

A subject of much discussion prior to the November 2020 hearings was whether legal representatives would be allowed to attend the hearings on behalf of their clients. The Inquiry has taken a very restrictive approach to this, permitting only one representative on behalf of the entire group of over 200 NPSCPs, and those who had a ‘direct interest’ in the evidence of a particular officer being funded to attend.

Matthew Ryder noted that this might prove a false economy, and that there was a risk of this approach (led by purely monetary considerations) damaging something of high but intangible value: people’s confidence in this Inquiry.

The refusal to provide funding has put considerable strain on the NPSCPs’ lawyers, and the November hearing was far from satisfactory for either them or their clients. These problems were exacerbated by the fact that access to the November hearing bundle of evidence was restricted to a very small number of NPSCPs and lawyers, with over 6,000 pages of material to process in an extremely short period of time.

The Inquiry has decided that only those NPSCPs with a ‘direct interest’ in each phase/ tranche of hearings should be given access to evidence beforehand. However, they have adopted a very narrow definition of who can be considered to have that ‘direct interest’.

Heather Williams argued that this definition must be widened. There are particular groups, for example the women deceived into relationships, who have a direct interest in understanding how certain tactics (eg targeting activists for intimate relationships) were created and developed over the years.

The Inquiry has recognised that those who fall into categories of the families of deceased children whose identity were stolen and women deceived into relationships have an interest in the emergence of these tactics in the undercover units. Thus, their legal representatives will be funded to attend the next set of evidential hearings.

It is unclear what Mitting’s final ruling on representation as a whole will be, but it is feared that he will continue with this narrow definition and restrictive approach, though further discussion is to be had. He did make the point that if he granted greater latitude in some areas, it would be at the expense of other parts.

CALLING OTHER WITNESSES

One more point that came up in the hearing – a relatively minor one – was the mention made of the obvious dearth of non-State witnesses due to give evidence about the 1970s. Mitting acknowledged this, and complained that the Socialist Workers Party had collectively decided not to take part in his Inquiry. According to him, the object of the Inquiry ‘is not exhaustive investigation but sufficient investigation’.

The NPSCPs say that nevertheless, the witness list for the next phase – covering 1973-82 –  has gaps that are too significant to ignore. Matthew Ryder noted that the NPSCPs would like to put forward relevant witnesses where they could be identified and were willing. In line with much of what else he said during the day, Mitting gave a guarded acceptance of that, indicating that he was prepared to consider them, dependent on various factors.

CONCLUSION

Overall, it was a better tempered hearing than previous ones presided over by Mitting. However he continued to openly press and challenge the lawyers representing NPSCPs in a way that he does not do with those representing the State, keen to maintain the status quo.

Although there have been some positive shifts towards better access, and a few of the suggestions for improvement have been acceded to, the UCPI is likely to continue to fall far short of what would be considered a genuinely accessible, genuinely public inquiry.

A number of important issues remain to be judged with rulings expected to be handed down in the next fortnight.

---

Morning and afternoon live-streams of the hearing
Draft transcript of the hearing
Associated publications