Sir John Mitting

Sir John Mitting has been appointed to take over as chair of the public inquiry into undercover policing.

It comes three months after the current Chair, Lord Pitchford, announced he has motor neurone disease and does not expect to be able to complete the inquiry. Mitting will work alongside Pitchford for the time being and will succeed him as chair at an appropriate time.

The inquiry was commissioned in March 2014 after years of revelations about spycops. The three years since have been characterised by police delays and obstructions, and the inquiry has still yet to formally begin.

As a High Court judge, Mitting has had a little involvement with the issue before, ruling in a March 2015 hearing of the case brought against police by activists abused by undercover officer Marco Jacobs.

On that occasion, he orchestrated an ingenious solution to the problem of police saying they would ‘neither confirm nor deny’ (NCND) if Jacobs was their officer. Mitting got them to agree that, while they would not officially drop their stance of NCND, neither would they contest the activists’ assertion that Jacobs was an officer, and if damages are awarded then the police will be liable to pay.

However, there are many elements of Mitting’s professional and personal life that cause serious concern.

JUDGE IN SECRET SPY COURTS

He is vice-president of the Investigatory Powers Tribunal (IPT), a bizarre secret court dealing with government surveillance cases. It was formed in 2000, when the state realised that surveillance authorised under the new Regulation of Investigatory Powers Act may breach human rights or other law.

Most of its claims are held in secret and not even the spied upon citizen is allowed to be at the hearing. Their lawyers don’t get to be at the hearing either. There is no chance to cross-examine. Complainants just send some papers to the court. In contrast, the police (or whichever state body is accused) and their lawyers are allowed to be at the hearing. The citizens and their lawyers do not get to see what’s in the state’s submissions – they may omit evidence that incriminates them, or invent evidence about the citizens. The court then considers the case and makes a decision. It gives no reasoning for its decision. It doesn’t even have to confirm whether the citizens were under surveilance. The citizens cannot appeal the judgement.

It’s unsurprising that it finds in favour of the state over 99% of the time. Between its formation in 2000 and 2012, the Investigatory Powers Tribunal upheld 10 complaints out of 1,468.

Kate Wilson, who was abused by undercover officer Mark Kennedy, has a case pending at the IPT.

From 2007-2012 Mitting sat as a judge in the Special Immigration Appeals Commission. This is another Kafkaesque secret court, dealing with applications to deport people accused of being a threat to national security.

The cases are based on secret evidence which has never been heard by either the appellants themselves or their lawyers. In many of the cases, a return to their country of origin would be likely to result in detention and a high risk of torture.

Whilst Mitting was involved in a number of cases, the judgements that have come to prominence are ones that have been unpopular with the press, such as ordering the release of Abu Qatada and preventing the deportation of an Algerian terror suspect on humans rights grounds.

INSTITUTIONAL SEXISM

Mitting’s entry in Who’s Who reads:

MITTING, Hon. Sir John Edward

Kt 2001

Hon. Mr Justice Mitting

Born 8 Oct. 1947; s of late Alison Kennard Mitting and Eleanor Mary Mitting; m 1977, Judith Clare (née Hampson); three s

a Judge of the High Court of Justice, Queen’s Bench Division, since 2001

Education
Downside Sch.; Trinity Hall, Cambridge (BA, LLB)

Career
Called to the Bar, Gray’s Inn, 1970, Bencher, 1996; QC 1987; a Recorder, 1988–2001; Chm., Special Immigration Appeal Commn, 2007–12; Vice-Pres., Investigatory Powers Tribunal, 2015–

Recreations
Wine, food, bridge

Club
Garrick

Address
Royal Courts of Justice, Strand, WC2A 2LL

The mention of the Garrick Club is noteworthy. It’s an elite London ‘gentleman’s club’ that is one of the last to prohibit women from becoming members. That a bastion of codified sexism is Mitting’s choice of environment is of serious concern as he takes charge of an inquiry with institutional sexism and abuse of women at its core.

Incidentally, the Garrick Club was the scene of a confrontation between Mitting and former Conservative MP Andrew Mitchell, who Mitting had ruled against in the Plebgate case, ordering him to pay substantial damages to a police officer Mitchell had insulted.

The appointment of a spycops Chair whose past is at odds with the aim of the public inquiry does not necessarily doom the process to failure. When the Stephen Lawrence Inquiry were given Sir William MacPherson, the family campaign saw his history regarding cases with racial elements and tried to have him removed. They failed, yet MacPherson appeared truly outraged at what he found and issued a damning report that forced the police to admit they were institutionally racist, and recommended reform of state institutions far beyond the police.

WHICH KIND OF CHANGE?

With Pitchford stepping down, there is an opportunity to change the structure of the inquiry. As the Hillsborough families showed, even with its most powerful tool – a judge-led public inquiry – the state is not very good at investigating state wrongdoing.

The Child Sexual Abuse inquiry which, like the undercover policing inquiry, was commissioned in 2014 but has yet to properly begin, has lurched from crisis to crisis and is now on its fourth Chair.

The Stephen Lawrence Inquiry had the benefit of a panel of lay members, familiar with the issues, who played an important role in adding a broader dimension to the chair’s work. The undercover policing inquiry covers many of the same issues as the Lawrence inquiry (and indeed the Lawrence campaign and family themselves). It also deals with abuse of people who have been campaigning against state and other power. To be effective it must have input from people who understand those perspectives and subcultures.

This inquiry is not about mere serious allegations of officers’ wrongdoing, but proven and systemic abuse of citizens. It is not there to arbitrate between police and activists, but to uncover the full facts of this victim/perpetrator situation. The voices of the abused must be heard above the police who lied for decades and, since discovery, have done all in their power to avoid accountability and keep the truth hidden.

Mark ‘Marco’ Jacobs

Yesterday saw another blow to the police’s obstruction tactics for legal cases brought by targets of undercover officers.

The police have been saying they can ‘neither confirm nor deny’ (NCND) that anyone was (or wasn’t) an undercover officer. They claim this is a long standing policy that cannot be deviated from. But, as is pointed out by the eight women in the Police Spies Out of Lives case who were deceived into relationships with officers, that is simply not true.

The Met have even tried to claim NCND about officers who have given numerous media appearances talking about their work. Even more farcically, in one hearing they admitted that Jim Boyling was a Metropolitan Police officer but not that he was undercover, as if he might have had his alter ego of committed activist as a some sort of off-duty hobby.

Yesterday, three people from Cardiff Anarchist Network who were spied on for four years by an officer known as Mark ‘Marco’ Jacobs came to the High Court in London to challenge the use of NCND in relation to their claim for damages. Two had sexual relationships with Jacobs, the third is a man who was the partner of one of one of them and was very close friends with Jacobs.

Mr Justice Mitting asked the police’s counsel what the point was of asking the claimants to prove that Jacobs was a police officer. There was a long, resounding, painful silence, ended only by Mitting asking another question.

Whilst the police did not say they were dropping the use of NCND, they said that they would not contest the assertion that Jacobs was an officer, and if damages are awarded then the police will be liable to pay.

THE REAL ABUSE

Mitting did question the position of the man in the case, Tom Fowler, saying it amounted to saying ‘you stole my girlfriend by deceit,’ a position that wouldn’t hold water in a marriage case, let alone with unmarried people. Leaving aside his anachronistic clear distinction between married and other couples, it shows a fundamental failure to understand what these spies have done.

As other women deceived into relationships with undercover officers have been at pains to point out, it’s not so much the sexual contact that’s the issue, it’s the intimacy, the trust, the intertwining of lives and plans for the future. To then find out that the person you were so close to was only ever there as a paid agent to betray you and the values you hold most dear, that their presence in your life was controlled by an unseen group of other state agents, is a profoundly traumatising shock.

Whilst we may hope our closest relationships don’t end, we’re always aware of the possibility. It happens to a lot of people at some time and it’s happened to most of us before. But the profound invasion of privacy, the sustained manipulation and the abuse of trust that were meted out to all three people in this case is not something anyone would ever expect of their partner, their best friend or their government.

THE FUTURE

Whilst the Metropolitan Police’s effective admission that Jacobs was their officer is good news, not bringing the evidence out in front of them means we lose hope of shining a light up the ladder in this case and see who sent Jacobs to spy, what they asked him to do, and how much they knew of his abuse of those he targeted.

Nonetheless, it is a victory and bodes well for NCND to crumble away from future cases and the forthcoming public inquiry.