Our report from the second and final week of Kate Wilson‘s landmark case, the culmination of ten years’ legal action challenging Britain’s political secret police. As an activist, Kate was spied on by at least six spycops.

Kate Wilson (front, third from left) & her legal team, Royal Courts of Justice, 27 April 2021

Last week saw the opening of Kate Wilson’s case in the Investigatory Powers Tribunal. Kate, represented by Charlotte Kilroy, QC, put forward how her human rights were interfered with by multiple undercover police officers, particularly Mark Kennedy who deceived her into a relationship. We covered much of that in part one of this article.

Day 4 (Monday 26 April 2021)

This day was given over to the police to make their arguments, resuming from where they had left off last week. David Perry QC spoke for the entire day.

He was frequently interrupted by the three judges on the Tribunal panel. They were clearly uncertain about positions he was taking in relation to the law, and at times told him they considered his analysis illogical.

MARK KENNEDY TO BLAME

Perry maintained the position that Mark Kennedy was to blame for everything, and that the other officers were unwitting dupes of his lies. This included not being properly open with his principal cover officer, known only by the cipher EN31. It’s the police’s position that the evidence they’d been forced to disclose, such as the contact logs, needed to be read through this lens, given the lack of substantive witnesses.

Kate Wilson:

‘Perry then goes back over his case from last week, stressing MK was selective and untrustworthy in the information he gave. MK portrayed me to be an influential activist in the UK and overseas, but that must be treated with caution because we now know that MK lied.’

Senior officers can’t have known, Perry argued, as otherwise they would have taken immediate action. Plus, all the senior officers in close proximity to Kennedy deny knowledge of his behaviour.

What followed was essentially a rehash of this point from different angles. All the blame lay with Kennedy, not EN31 or anyone higher up. For instance, it was Kennedy who set out the intelligence case for explicitly citing Kate as a target, namely that she was an influential activist both in the UK and overseas. He justified time spent with Kate and her family to EN31 by referring to chance events which were unavoidable or unwelcome.

Kate Wilson:

‘Sir Stephen House (who knows nothing about the case) notes MK sometimes explains time spent with me as a “chance” event, and sometimes included political intelligence to what were entirely social and/or romantic events. Again, odd, they seem to think this is a defence.’

Perry relied on the witness statement from Lisa (another of the women Kennedy deceived into a relationship). She had shown that the contact logs held misleading information about him spending time with her and why it was required.

A particularly harsh example of this was the reasons given for Kennedy attending the funeral of Lisa’s father, which in a rare moment EN31 actually questioned. In Perry’s interpretation of the contact logs, Kennedy engineered an excuse as to why he had to be there, pressing on with the intrusion all the same, despite his cover officer’s concerns.

Kate Wilson:

‘MK is authorised in 2006 to attend a deeply personal event – Lisa’s father’s funeral. Somehow police lawyers seem to think MK’s claim he delivered “sympathy cards” means his handlers were duped into letting him attend. Frankly this is insensitive nonsense from Perry QC.’

The next day, Charlotte Kilroy challenged this line of argument on the basis that Kennedy’s reasons were a distraction. The fact is, that the ‘reasons’ were a later detail provided by Kennedy after he had already told EN31 he was attending the funeral.

Furthermore, the cover officer didn’t ask why he had been invited (underlining the point that EN31 was not being intrusive because he already knew of the relationship).

Another occasion Perry relies upon as proof of Kennedy deceiving his managers, was when the undercover was recorded as off-duty but was in fact in Spain with Kate – something Kate was able to evidence with photos from the visit. Similarly, on other rest days in 2008 he was in fact in Scotland with Lisa.

SENIOR OFFICERS KNEW NOTHING

The authorisations for Kennedy’s deployments were based on Kennedy’s own intelligence. Senior officers had no reason to doubt his honesty as an officer, Perry argues, as at that point they did not know his credibility had been hopelessly compromised by his relationship with Kate and other women.

Of course, EN31 could have done a better job by being more diligent instead of placing so much trust in Kennedy. Especially as EN31 knew, and had spent time with, Kennedy’s family. However, it wasn’t really his fault; he was being misled as well. And who are we to doubt EN31 when, according to his statement, he had made it clear to Kennedy that any impropriety – such as sexual relationships – would be the end of his deployment?

Kate Wilson:

‘Sir Stephen House himself accepts that there are multiple indications in the documents suggesting that EN31 knew or ought to have known. All he says about the other spycops officers is that there are “less indications” that they knew.’

The police barrister was treading risky ground. Kate’s case makes a strong argument that EN31 clearly did know of Kennedy’s sexual relationships, in which case EN31 was part of deceiving Kennedy’s family.

Kate Wilson:

‘The police say we should think like officers at the time – there was (“rightly or wrongly”) operational benefit to MK to developing the relationship, and officers receiving evidence of a developing relationship would have seen it in that context. Erm… that is my case.’

Perry did accept that in situations where Kennedy might be called to give evidence, even if his sexual relationships had no direct bearing on the case, the very fact of them would damage his credibility all the same. He had breached police regulations and lied to get authorisations in place, so could not be put forward as a truthful witness.

Again, this was evidence in Perry’s eyes that the senior officers were ignorant. One such officer, O-24, who headed the National Public Order Intelligence Unit’s undercover unit which deployed Kennedy, apparently concurred, saying the policing and evidential purposes of the operation would have been affected by the relationships.

MARK KENNEDY ACTED AS AN AGENT PROVOCATEUR

For instance, the collapse of the Ratcliffe on Soar case in 2011 related not only to the discovery that Kennedy was a spycop, but also to evidence that he acted as an agent provocateur.

Undercover officer Lynn Watson, deployed at the same time as Kennedy, knew of his relationships

Curiously, Perry also relied on the claim that in any prosecution, the defendants would have to be told that Kennedy was an undercover; something that rarely happens. Other cases involving spycops indicate that police collapsed trials outright rather than letting an officer go to trial under their cover name.

Perry argued that other spycops deployed in proximity to Kennedy did not raise concerns over his relationships. He saw two possible explanations. Either they were unaware that the relationships were sexual, or they were aware, knew that it was wrong, and kept quiet. For Perry, both explanations were supportive of more senior officers not being in a position to have that knowledge.

This point was later challenged on the grounds that Perry was ignoring a third option: that it was an accepted cultural practice. Two of the undercovers closest to Kennedy – Lynn Watson and Marco Jacobs – both had their own intimate relationships with activists. Without question, Watson knew of Kennedy’s relationships. It was clear that there was complicity among the spycops, and a deliberate turning of a blind eye to this behaviour.

Kate Wilson:

‘Another point is that spycops Lynn Watson and Marco Jacobs knew about MKs relationships. Perry says that the fact they didn’t raise concerns shows ‘They knew it was wrong and decided not to draw attention to it’. Again, he thinks that is a point in the defence the police.’

Perry did accept that in relation to Article 8 (the right to private and family life), senior managers had not done enough to supervise the operation and so protect Kate from excessive intrusion. However, he maintained the argument that management had little reason to express concern over Kennedy’s conduct at the time of the relationship.

Two important reports relied on by both sides came from the Serious Organised Crime Agency (SOCA) and HM Inspectorate of Constabulary (HMIC). Both examined the Mark Kennedy scandal in its immediate aftermath; SOCA in 2011, though it remained private, while a public version of the HMIC report was released in 2012 as ‘A review of national police units which provide intelligence on criminality associated with protest’.

Spycop Mark Kennedy under arrest, Nottingham, April 2009

DRAX CLIMATE CAMP ARREST

Perry addressed the point made in these reports that Kennedy was resistant to management instructions on two occasions. One was his arrest at Drax Climate Camp in 2006. The other was a trip abroad in 2009 with an unnamed woman, defying parameters set by management. Here he was met by officers and ordered to return to the UK.

The question Perry sought to raise, was whether proper action was taken by Kennedy’s managers.

After Drax, Kennedy was suspended and not re-deployed until later in the year. It is clear though that he remained in the field, as during that time a car he was in with other activists was stopped by a police officer who recalled him from the Drax arrest.

Following his arrest at Ratcliffe in April 2009 he was effectively no longer operational. The contact log was suspended so there is little evidence from that time. His managers began working on an exit strategy for some time in 2010.

The unauthorised trip abroad in 2009, however, accelerated the decision to withdraw him from the field completely. His deployment was ended on 23 September 2009. Kilroy later drew the Tribunal’s attention to the fact that during this period the National Public Order Intelligence Unit (NPOIU) continued to produce reports based on Kennedy’s communications.

Kate Wilson:

‘Perry is paying a lot of attention to the fact that MK was pulled out of his spycops role in late 2009. That is SIX YEARS after he first started having sex with women he was spying on. Shutting the door after the horse had bolted does not really cover it.’

Following this line of argument Justice Lieven remarked to Perry that, despite repeated breaches of his deployment and instructions, no disciplinary action was taken.

Lord Boyd commented that the unit seemed unaware of where Kennedy was when he was not operational, and this was a welfare issue since it was clearly not easy to switch the cover persona on and off. He asked if they did know his whereabouts, and were they checking on his welfare, particularly if he was having to maintain his cover for being redeployed. Perry answered that contact was maintained on rest days by EN31, but accepts there should have been more oversight.

INSTITUTIONAL SEXISM IN UNDERCOVER UNITS

A part of Kate Wilson’s case is that the deployments of Kennedy and his fellow spycops expose institutional sexism within the undercover units. This breaches Article 14 (freedom from discrimination).

Perry noted there are direct and indirect aspects to that claim. In his view, the Tribunal didn’t need to deal with the direct aspect as the policy and guidance of the time was gender-neutral.

Kate Wilson and Mark Kennedy

As to indirect discrimination against women, Perry claimed there wasn’t a case to answer as one would have to establish that female undercovers faced different risks from male undercovers.

Justice Lieven was clearly not having it and took his arguments apart. She noted that one had to look at the actual outcomes, not the hypothetical ones advanced by Perry. Far more women were deceived across both main spycop units, the Special Demonstration Squad and National Public Order Intelligence Unit, so there was clearly a disproportionate impact.

Perry retreated to pleading against making stereotypical assumptions or generalisations about men and women. This still did not wash with Lieven – the factual evidence was against Perry. Lord Boyd also noted Charlotte Kilroy’s arguments on behalf of Kate Wilson around issues such as pregnancy creating a difference and having significant impact. Any analysis would have to take this into account as well – biological difference was not the same as stereotyping.

The judges also pointed out that indirect discrimination does not have to stem from issues in policy, training, or guidance, as Perry had suggested. Discrimination can also come from a pattern of behaviour. As the Equalities Act makes clear, it is the outcome that matters.

As typical when advancing an insubstantial argument or facing one crumble, Perry’s final response was that he’d raised the issue out of duty to the court, and it was in the Tribunal’s hands to make any final determination.

Kate Wilson:

‘In summary the Metropolitan Police’s case seems to be that sexist discrimination by spycops is not important and the Tribunal should decline to make a ruling on [it]. Perry makes it clear that if the Tribunal does decide to make a ruling, he has no justification to offer for why it took place.’

‘IN ACCORDANCE WITH THE LAW’

Perry next addressed the case, made by Kilroy on Kate Wilson’s behalf, that the undercover operations were essentially unlawful on the grounds that they did not meet the test of necessity. This opened a very technical dive into the law, examining how the European Court at Strasbourg used and viewed necessity and proportionality as incorporated through the Convention on Human Rights. Likewise, whether the UK legislative regime covering undercovers adequately met those conditions.

Kate Wilson and Mark Kennedy at Kate’s nan’s 90th birthday, January 2005

The arguments advanced and subsequent discussion are beyond the scope of what we can address in this report. To summarise, the Convention requires safeguards ‘in accordance with the law’. Perry appears to have been saying that because the UK had set up a legislative regime with other statutes, this fulfilled those requirements. He pointed to case law which seemed to say that Strasbourg was generally okay with the UK arrangements, albeit for other kinds of surveillance that had tighter controls.

Lieven immediately pointed out that what little safeguards, such as against sexual relations, might be present in law, were not there in practice or in the relevant codes of practice. Similarly, there were next to no safeguards against collateral intrusion in particular as had happened under these particular units.

Kate Wilson:

‘Judge: In a case like this where the state puts spycops into someone’s life every day, almost every hour of the day, [it] is an intrusion far more serious than phone tapping, it is a profound intervention in someone’s life, based on legislation that does not prevent this.’

Perry answered that the failure was not in the law, but because there was no proper monitoring or supervision.

It was clear that Perry’s objective was to defend the undercover operations as meeting the ‘as necessary in a democratic society’ condition. Necessity meant, in the context of the undercover policing operations, that simply the possibility of a crime, however minor, was sufficient to meet the test. One could move from there straight to proportionality, the next stage in the process.

FAILURES

In the scheme he outlines for the police, the failures happened after the necessity stage of the process. It was clear that he wanted proportionality to carry the principle burden and was prepared to concede that was where the failures in the case could be found. He relied on findings in the SOCA review of the Mark Kennedy operation that he says indicated this.

At this point the technicality of the legal argument went up another notch, examining Strasbourg jurisprudence around necessity. Perry’s main point seemed to be that given Parliament had defined necessity as meeting a pressing social need, such as national security or public disorder, that was sufficient.

However, it was clear that the judges were unhappy with how Perry was setting out the distinctions between necessity and proportionality. They made the point that the Strasbourg courts took a more integrated approach rather than making proportionality subservient to necessity.

Perry’s final(ish) point on this issue was that the need to detect crime, or act in the interest of public safety, was sufficient to meet necessity. How this is done is the proportionality aspect.

Kate Wilson:

‘Judge: So, in your argument, what is the role of the court then?

Perry: to assess proportionality, not necessity.

Judge: It would be extremely rare to find a case where a police officer had no belief at all that they were doing the right thing.’

AUTHORISATIONS

Having sought to argue that the authorisations of spycops were lawful in that they met the grounds of necessity, Perry then moved on to whether they were proportional. He effectively conceded that they were not, but his motivation at this point seemed to be about protecting those senior managers who had signed it all off.

He argued that the authorising officers were sincere in their belief that the tests of necessity and proportionality had been met. At this point Perry’s reasoning became circular again – this sincere belief arose from trust in Kennedy’s intelligence.

Perry wants the Tribunal to find that the initial authorisation of Kennedy was lawful, but subsequent ones failed because they were not proportional. With the first, they didn’t know enough about the Sumac Centre (where he was deployed) so they could not be more specific.

Kate Wilson:

‘They also claim MK’s deployment at the Sumac needed to be wide reaching at the start, and the only error was not to have made it more specific later on. That is nonsense, there were other spycops (Rod Richardson) at the Sumac before MK.

‘The issues raised go beyond surveillance of me. The police cite many political events, including the death of Carlo Giuliani at the Italian G8 in 2001. But the police have presented no underlying evidence to support why that justified a spycops operation at the Sumac.’

The following day, Kilroy noted a total failure to acknowledge that authorising officers did know about the Sumac Centre as they’d already sent in a previous undercover, Rod Richardson, who had helped refurbish it.

She also noted there had been other spycops, such as Jason Bishop and Jim Boyling, who had reported on Kate Wilson earlier, as Kate pointed out:

‘In fact, the disclosure suggests that spycops had been gathering information specifically on me since my involvement in Reclaim the Streets and support for Immigration Detainees in 1999.’

Furthermore, the police were trying to have it both ways – either Kennedy was reliable or he wasn’t. A number of the officers involved in drawing up and signing parts of the authorisations would have known there was a clear falsehood – when NPOIU managers named Kate as a specific target on a basis that included the easily disprovable lie that she was as a principal organiser with a Leeds housing cooperative.

AN OBLIQUE THREAT TO THE TRIBUNAL

Perry’s next argument seemed to be a subtle attempt at sending a warning shot across the bows of the Tribunal. He asked the judges to consider the impact of making findings around Articles 10 and 11 (rights of free speech and assembly) in this case, as they would potentially opening the ‘floodgates’ of challenges to authorisations. Namely, in other criminal cases brought on the basis of undercover work, those going to court will seek to challenge authorisations of undercovers to have evidence thrown out.

Spycop ‘Rod Richardson’, refurbishing the Sumac Centre building, Nottingham, c.2001

If all this sounds like torturous nonsense, it’s because that’s how it came across in court. If anything, it shows the desperate lengths to which the police will go to defend necessity. They are clinging to the wide latitude they perceive they have in law as to who they can target, particularly political campaigners.

Another such situation emerged in Perry’s arguments shortly after, when he considered whether Kate had a case for interference with her Article 10 and 11 rights. It has been conceded that Kennedy interfered with her Article 10 rights (freedom of thought and speech) through the relationship, but the same is not said of her Article 11 rights (freedom of assembly).

Perry tried to argue that 10 and 11 were effectively a distraction from the real issues, the breaches of Articles 3 and 8 (freedom from torture, inhuman or degrading treatment, and the right to private and family life).

Lieven responded that the police had effectively shot themselves in the foot by making the concession on Article 10 with regards to the sexual relationship.

This led to a remarkable moment where Perry tried to back-pedal, saying the law should not depend on what counsel say – in effect the Tribunal should ignore their admission and focus only on the interference with Articles 3 and 8.

CLEAR EVIDENCE FROM KATE WILSON

Lieven then remarked that the evidence from Kate was clear: Kennedy had exercised control and influence over her rights in relation to freedom of expression and assembly. Though not coercive, it was a degree of control which did interfere, and as such had all the implications that went with the sexual relationship.

Perry continued to resist, saying the facts only went to Articles 3 and 8. However, Lieven replied that this didn’t preclude them going to 10 and 11 as well.

Another of the Tribunal judges, Professor Graham Zellick, also weighed in, saying that there was a freedom to hold opinions without interference by public authority. This is a situation where Kate’s freedom to hold her opinions attracted interference by public authority through undercover police intruding into her life in all its aspects.

As Charlotte Kilroy had noted, Article 8 (right to family and private life) didn’t tell the whole story; the reason Kate was targeted was her political activities, and to do justice to this complaint the Tribunal needed to make a finding under Articles 10 and 11.

Perry responded that if the scheme of authorisations under RIPA was to work, then going down the route that every authorisation had to meet Article 10 as well as 8 would become ‘slightly problematic’.

Kate Wilson:

‘Crazy, I thought investigations should have to comply with the whole Human Rights Act, but apparently David Perry QC thinks that would be ‘problematic”’ for the police and security services.’

Though not really picked up on in the hearing, this is tantamount to saying that respecting people’s Article 10 rights would seriously impact on whether the undercover authorisations targeting protestors could be granted. In other words, they want the freedom to freely interfere with Article 10 rights and there is a risk that all the authorisations breach this particular right.

MYTHICAL DOCUMENTS

The question of who knew what has been a significant theme in the hearings. The vital issue of whether management were aware, or acted appropriately, hinges on this point. Kate is arguing that the contact logs are key evidence showing there should have been awareness of Kennedy’s relationships.

Discussion developed as to whether management had seen the logs. There is evidence in them that messages were left for management to read, and decision logs note that material was meant to be sent to senior managers to read. EN31 even effectively said as much, noting that entries marked red were suggested policy entries – matters for the senior investigation officer.

In the absence of anything else, the indications are that the contact logs were passed on. Perry tried to introduce doubt on this by speculating that what was sent to the managers was some other material that drew on the logs. Otherwise, EN31’s bosses were being asked to read a lot of unnecessary information.

As Lieven noted:

‘If there had been some separate document, we don’t have the slightest trace of it ever existing. Bit of a leap to ask us to accept that.’

Perry retreated to relying on O-24’s statement. He was a senior officer overseeing the undercover unit, and had claimed that given the amount of work on his plate, he had only been able to give 5% of his time to Kennedy’s deployment.

LACK OF WITNESSES

Perry was asked why the police had not put forward witnesses of fact, able to provide information on what had happened because they were there, such as with information flow. This would have avoided the need for Perry to speculate. He responded by saying the Tribunal should not seek to rely on witnesses, but rather focus on the available primary sources such as the contact logs, decisions logs, or NPOIU intelligence report as being reliable, contemporary evidence.

Kate Wilson:

‘None of the officers have given witness statements. Police did not even write to O-40 even though he was op head for the spycops at the time when all the logs and decisions are missing.

‘There has never been anything produced in this case about why so many relevant documents have gone missing. Not just one or two documents, but a substantial amount of missing material from the most crucial period.”

‘The police have never inquired at any stage how the #spycops unit worked in practice and David Perry could not answer a single question about how the unit operated in practice.’

Perry also argued it was unusual for witness statements like that to be served in proceedings such as the Tribunal, which mirrors the Judicial Review process. If there were statements they would usually be by someone senior, such as (in this case) Sir Stephen House, Deputy Commissioner. House had provided six witness statements discussing the evidence but was not himself a witness of facts in the case. In any case, officers such as EN31 declined to provide information.

A problem raised was that the officers proximate to Kennedy had been told they would not be called to give evidence. Again Perry tried to fudge this, saying the reason they’d been told this was to ensure they cooperated. He made the point that they had been offered immunity from prosecution for evidence given to the Public Inquiry, but no such undertakings were available here.

Evidently, this is not an encouraging excuse to offer the Tribunal as to why police officers have not been asked to be witnesses, so he added that although the emails from the officers were not sent under oath, if these officers had sought to mislead in their responses, it would still be a criminal offence. His submission was that the police were clearly trying to present a fair and balanced view of the evidence in their statements by Sir Stephen House.

Kilroy replied the following day that waiting to be offered immunity in the UCPI before giving evidence was ‘not a heartening reason’ as it suggested that what they might say could lead them to be prosecuted. This was reflected in Stephen House’s admission that any denials made in the few responses available from officers were not necessarily reliable.

Day 5 (Tuesday 27 April)

This was the final day of the hearings, with Charlotte Kilroy responding to some of the points raised by David Perry, then tidying up final administrative issues.

Kilroy had a number of points to make. One was the lack of witness statements and the fact that where the police did question officers in their investigations, crucial issues were not covered.

Mark Kennedy showing injuries after a beating by uniformed police, Climate Camp 2006

The police have asserted that many documents are missing. What they have not done is make inquiries as to just why they are missing. There was a lack of serious investigation by the police into how the NPOIU worked. This left them all in the dark.

MISSING CONTACT LOGS

For example, they had not addressed how the NPOIU operated as a team, nor dealt with Kilroy’s previous observation that the contact logs were only a snapshot of the overall picture. This was particularly important given the material covering when Kennedy entered into a relationship with Kate was missing.

Perry, she said, was drawing inferences from the evidence that were not actually substantiated by the documents he relied on. In fact, the material submitted was confusing the issue rather than shedding any light. The real problem lay with the police failing to investigate adequately in the first place. All they could offer was a tendentious lawyers’ interpretation, when the more powerful one is in fact provided by Kate Wilson.

Pointing out their failures, Kilroy addressed the intelligence flow within the NPOIU. She called up a document from disclosure setting out how the unit supposedly worked from 2007 onwards. This was a diagram which set out the various parts of the NPOIU and how intelligence came into the unit and passed out again, including through informers and undercovers. It showed that there were apparently firewalls in place to prevent the rest of the unit effectively knowing about the undercovers.

Perry suggested the diagram reflected how the unit worked prior to 2007. Kilroy drew the Tribunal’s attention to the very next bit of disclosure – an internal contemporary email from someone in the NPOIU attached to the same intelligence flow diagram.

A CLEAR TWO-WAY PROCESS

Damningly, the email, written by O-137, an NPOIU officer, said the intelligence flow diagram was ‘dishonest’ and undercover units were not in fact distinct and firewalled from the rest of the unit. Rather, there was a clear two-way process which included the undercovers and that if the NPOIU tried to impose such a firewalled approach the entire process would break down:

‘Are we saying we should not really be doing this and so are trying to hide it…If the rules prevent this then they are clearly wrong and need changing’

Kilroy used this to illustrate the point that one could not rely solely on the documents, as Perry was asking of the Tribunal. Documents such as this could be misleading in themselves – the wider picture was necessary to get to the truth.

She pointed out that Perry had advanced the case that management were entitled to place their trust in Kennedy as an experienced police officer who they were unaware was having intimate relationships. However, this was in fact the first time police had ever made such arguments in Kate’s case.

Previous defences had not suggested EN31 and others were entitled to trust Kennedy on this basis. Instead the police lawyers had accepted the contradictory position, that those managing Kennedy should have been more intrusive into his life as an undercover.

It also was difficult for Perry to rely on the police Code of Conduct requiring Kennedy to be honest and maintain integrity. This conflicted with RIPA itself, which permitted dishonest relationships through undercover policing.

Kilroy then moved on to rebutting the point that Kennedy would be expected to be called as a witness. It was quite clear that this was not the case. Both HM Inspectorate of Constabulary and the Serious Organised Crime Agency said it was not an evidence-based operation, but solely focused on intelligence gathering.

THE ROSE REPORT

To illustrate, she drew attention to the report by Sir Christopher Rose into Kennedy’s role in the collapse of the prosecution of activists who had attempted a protest at the Ratcliffe on Soar power station.

Kate Wilson:

‘The Christopher Rose report is clear that it was always the primary intention that MK’s identity should be protected over and above any prosecution. The only reason the Ratcliffe miscarriage of justice even came to light was because Lisa discovered MK’s true identity.’

Instead, the Rose Report showed the NPOIU had sought to protect Kennedy’s role as a spycop and this had trumped the rights of the activists being prosecuted. In fact, the Ratcliffe on Soar case only collapsed because he had been outed as an undercover and agent provocateur.

She was able to point to the fact that the Head of the NPOIU had provided Rose with a statement asserting that the undercover’s identity must be protected and he would not be allowed to enter the evidence chain. This undermined Perry’s point that having a relationship would have compromised Kennedy because he couldn’t have given evidence. It is clear the intention was that he would never be allowed to give evidence in the first place.

Kilroy went further, pointing out it was not until 2016 that the police formally accepted that undercovers having sexual relationships was intrinsically unlawful. There are widespread examples of undercovers engaging in the practice over many years. The defendants had not looked at the culture of the units. In support of this, she also noted that the Special Demonstration Squad’s Tradecraft Manual, which did speak of ‘fleeting relationships’, was never countermanded by any senior officer – a point which also went to the police meeting their positive obligations under the European Convention on Human Rights.

The Rose Report also highlighted another issue touched on the previous day – Perry’s request that the Tribunal favour the conclusions of the SOCA report over that of HMIC. By using remarks from Rose, Kilroy was able to show that the SOCA report had been conducted under the aegis of HMIC, and fed into it. In fact, the SOCA report was an annex to the HMIC one. Rather than being structurally separate, as Perry had claimed, they were inextricably linked – which meant his points about placing greater weight on SOCA than HMIC fell flat.

RIGHTS IN THEMSELVES

Having dealt with the above issues, Kilroy returned to Articles 10 and 11 (rights of free speech, and assembly). She made the point that they are rights in themselves. Although in this case they are often connected to the sexual relationship, they need protecting on their own merits. They are part and parcel of a democratic society.

A final substantive was whether the Tribunal could rely on Kennedy’s evidence as given to the Home Affairs Select Committee, or whether it was inadmissible for legal reasons to do with Parliament. In particular, the police attempting to impugn his evidence might be in contempt of Parliament. The issue was considered as ‘vexing’ and the Tribunal invited written submissions on resolving it.

With that, the main hearings came to an end. Judgment will be handed down in a couple of months, after which the judges will look at remedies. Lord Boyd then gave a fulsome thanks to Kate for all her efforts. An emotional ending to an exhausting process.

Kate Wilson outside the Royal Courts of Justice

As Kate Wilson’s epic case makes its way through the Investigatory Powers Tribunal, we delve in the legal arguments being made and their significance for everyone affected by the spycops scandal.

For the last ten years, Kate Wilson has been on a dogged fight for justice. Deceived into to a relationship by undercover police officer Mark Kennedy, she wanted answers.

Part of a group of eight women also deceived into relationships by spycops, she was granted an apology by the Metropolitan Police who sought to brush them off. However, where others were forced to settle, a single door was left open for Kate – the notoriously secretive Investigatory Powers Tribunal (IPT). It was a small chance, but she went for it anyway.

This week, her unique battle finally made it to court, coinciding with the second set of hearings in the Undercover Policing Inquiry, to which it provides a fascinating counterpoint. There has been some excellent media coverage of the case, highlighting evidence that has coming out, which we will not repeat here (The Guardian, Standard, Morning Star, The Canary) This article will explore Kate’s actual legal claim – and some of the surrounding context – in more depth.

TEN YEAR STRUGGLE

Kate has taking on the Metropolitan Police and exposing its institutional sexism. As anyone who has dealt with the police knows only too well, she was met with all the usual obstruction tactics. A full account of these is a tale in itself, and would take a book to recount properly. The short account is that this backfired on them, as it only made Kate more determined.

It is already common ground between all the parties that the relationships were unlawful and should never have happened. However it is the impact of the relationship that the Tribunal is, in part, being asked to address.

At first, the police claimed that because they had admitted that these relationships happened, the Tribunal did not need to consider any evidence about them; they could keep secret just who knew, and how they knew, about the various spycops’ sexual relationships. Kate successfully argued against that – the Tribunal could not possibly determine the extent to which her human rights were breached without looking at the evidence.

When that didn’t work, the police switched tactics – using outright denial, twisting and changing their story, ignoring court orders and abusing legal processes (for example, serving things late or chaotically). They admitted things but then withdrew their admissions, showing utter contempt for the court. As one observer put it, it was a ‘defence by malicious incompetence’.

That lengthy process took more than two years and priced Kate out of legal representation. Undeterred, she took on the case herself and continued fighting, later gaining a team of pro bono lawyers from Freshfields Bruckhaus Deringer. It has culminated in this week’s hearing.

This case is about wider issues than just the relationships of one disgraced undercover. It is about challenging the culture that led to the undercovers abusing women in this way, while their bosses turned a blind eye – the institutional sexism at the heart of their system.

It is also emblematic of a wider disdain for the rights of people who engage in protest. These units viewed everyone politically active as extremists and this viewpoint allowed them to casually strip them of their privacy. The National Public Order Intelligence Unit (NPOIU, 1999-2011) and the Special Demonstration Squad (SDS, 1968-2008) defined extremism so broadly that the notion of ‘collateral intrusion’ on innocent people adjacent to true targets became meaningless – almost everyone was considered fair game in their world.

TAKING SPIES TO THE SECRET COURT

However, just as this is not a standard court case, this is not your standard court either. The case is being held in the Investigatory Powers Tribunal (IPT) – a body created under the Regulation of Investigatory Powers Act (RIPA), which since 2000 has been the framework for undercover policing including the authorisation regime.

The IPT does not try cases as such, rather it looks at human rights claims arising under RIPA with a view to improving the regime. Importantly, however, it can make findings of fact.

The IPT is a secretive court, that makes its own rules, though it is clearly a judicial proceeding. The IPT is so secret that it won’t even say how many cases it hears, but it has numbered in the thousands and is only known to have ruled against the state once.

Although the IPT tries to follow established practice, if it wants, it can hold hearings entirely in secret, and a barrister is appointed to kind-of-represent the interests of the person bringing the claim. The person making the claim often never sees any of the evidence, and it is left entirely to the IPT’s discretion whether it even takes up a case.

The strength of Kate’s case – and her perseverance – allowed her to turn much of that on its head. The disclosure she has received is genuinely unique. The police have been forced by the IPT to turn over a great deal of evidence to her, including Kennedy’s own pocket notebooks and contact logs, and previously confidential NPOIU documents.

Days 1 and 2

The hearings opened with Charlotte Kilroy QC speaking on behalf of Kate Wilson. For two and half days she spoke solidly, taking the Tribunal through the evidence and multiple legal arguments.

Held at the Royal Courts of Justice and broadcast live online, the scene was striking, with boxes of evidence and arguments piled so high most could not see the faces of the three judges – Baron Boyd of Duncansby, Professor Graham Zellick and Lady Justice Natalie Lieven.

SO WHAT IS KATE ARGUING?

Under the terms of RIPA, the IPT looks at human rights violations by the likes of the police and Secret Service (MI5). Any claim must be framed in that context.

Her case has many angles. The most prominent one is that she was deceived into a relationship by Mark Kennedy and this was a gross breach of her rights. Even the police have accepted this – that the relationship was breach of her Article 3 human rights, her right not to be subject to inhumane and degrading treatment or torture. This is an absolute right that no circumstances can justify breaching.

Lord Boyd of Duncansby

With that also came a breach of her private life and that of her family and friends (Article 8). Kennedymade himself an integral part of her life for several years, furthering the abuse of her trust. Central to this is not the degree to which she and Kennedy had a relationship, but the degree to which this was encouraged and condoned by the unit that ran him – the National Public Order Intelligence Unit (NPOIU) – and their reasons for doing this.

However, Kate’s case is not just about Kennedy. Multiple undercovers intruded and reported on her over a decade of political activism. They too interfered in her private life, and also her right to protest.

She and her friends, and the other women deceived into relationships, were being targeted because they were exercising their rights to free speech and assembly (Articles 10 & 11). Once you look at the bigger picture, it becomes impossible to separate the relationship from the reason why Kennedy and the other undercovers were in her life in the first place.

This is where we get into the much wider aspects of the case, that the entire targeting of her was part and parcel of that abuse, and Kennedy’s spying has to be seen in the context of all those other undercovers. When you look at things this way, questions emerge not just about Kennedy’s operation but about all of the NPOIU’s activities.

STAND UP FOR YOUR RIGHTS

Under the European Convention on Human Rights, most of these rights are ‘qualified rights’. There are no possible exceptions when it comes to Article 3 rights (freedom from torture etc) but there are some for Articles 8, 10 and 11. This means governments are allowed to interfere with those rights, but must provide some justification for doing so.

For that justification to be lawful, it must be shown to be both necessary and proportionate. Kate has challenged the police to provide evidence that these undercover operations were necessary and proportionate. She argues that if they cannot provide such evidence, these operations may not have been lawful at all. Thus Kate’s case includes the assertion that the authorisations of Kennedy’s deployment, and thus the entire operation, not just aspects of it, were unlawful.

And further, when you factor in the interference with so many rights, there emerges a case that the legislation under which those authorisations were made failed as a reliable legal framework protecting individual’s rights.

Finally, Kate has pointed out the institutional sexism that lies at the heart of the police. This is not the sole cause of her human rights being breached, but has certainly exacerbated them, for her and all the other women wrongfully targeted for relationships. She is arguing that the way abuses discriminated against women should be taken into account when considering the other breaches, and a finding made on it as well. (Article 14: protection from discrimination).

As part of this legal argument there is an important concept of ‘positive obligation’. A substantive part of the legal discussion at the hearings is the degree to which they police were required to be proactive in protecting Kate from these violations of her rights. How this plays out varies from right to right, but comes down to who knew and what was the regime in place to protect her – and that means looking at the evidence around training and guidance, and structures of oversight and supervision, including the degree to which there was an embedded culture of sexism within the units which turned accepted the acts of Kennedy and his colleagues.

WRINGING THE EVIDENCE OUT OF THE POLICE

Assistant Commissioner Sir Stephen House

There have already been some notable successes in this case. One of these was an acknowledgement that to understand the severity of the human rights breaches the facts needed to be known.

At first the police tried to control this narrative and keep hold of the material, rather than releasing it to Kate. They produced a statement (signed off by Assistant Commissioner Sir Stephen House) giving their interpretation, based on a limited review of material they had gathered.

The statement was readily debunked as ineffective and flawed. Kate kept up the pressure, saying it was not good enough, and the IPT agreed. Bit by bit she forced the the police to surrender material to her. First came contact and decision logs for Kennedy’s case and internal reviews of his operation. Then authorisations for the undercovers and NPOIU intelligence reports.

Even these small samples were damning and opened the door for further requests. Unsurprisingly, the police did their best to prevent this disclosure. They ignored Tribunal orders, or deliberately misinterpreted them.

Another tactic was to make concessions on the case, claiming that meant there was no need for evidence. When that did not work, they withdrew the concessions, trying to blame their previous lawyers for having made admissions. It was disruptive and frustrating, but they underestimated Kate’s tenacity.

She was able to show that it was not just Kennedy she needed answers about, as there was a pattern of intrusion and spying on her life. For instance, there was the question about how Kennedy’s undercover predecessor ‘Rod Richardson’ had spied on her. Or how much did Kennedy’s contemporaries ‘Marco Jacobs‘ and ‘Lynn Watson‘ know about his many relationships?

This brought more disclosure, about other undercovers, such as Jim Boyling and Rod Richardson, who had spied on her as early as 1999 – years before Kennedy was deployed.

From all the material, it was obvious the right to privacy meant nothing to them; Kennedy filtered nothing out and his bosses appear to have said nothing. It was also painfully clear from the logs that anyone reading them would have been well aware that Kennedy and Kate were in a relationship.

As Kate puts it:

Disclosed #spycops cover logs contain more than 30 references to Kennedy staying with me in my parents’ home, moving in together, and time alone, not protest, or campaigning or crime, just ordinary activities. Kennedy’s handler records that Kennedy gives my name as his “next of kin”.

The evidence, particularly the contact logs that document Kennedy’s continual reports to his ‘handler’ officer, are a goldmine of information about these operations. Although limited, and hampered by the fact that much material (particularly from the key period when Kennedy began the relationship) has apparently been lost or deliberately destroyed, they nonetheless give useful insight into the units.

WHO ELSE KNEW?

It has been possible to build up a bigger picture using Kate’s own memories and those of her fellow campaigners, and other women targeted by the spycops.

NPOIU officer ‘Rod Richardson’, Mark Kennedy’s predecessor, also spied on Kate Wilson

Kennedy had one cover officer, known by the cipher EN31, for the entirety of his deployment. The police have admitted that this cover officer must have known about Kennedy’s many relationships. However, EN31 denies this and has refused to cooperate with the police in this case.

It has become abundantly clear that there were multiple officers in close proximity to Kennedy, who were aware of his activities. Though there is no explicit mention of relationships in any of the documents disclosed, anyone reading them would have been immediately aware that something was going on.

As the picture built up, other players came into view: the heads of the NPOIU undercover units and their deputies; cover officers for other undercovers such as Lynn Watson; Nottinghamshire Special Branch.

According to Sir Stephen House, none of these people knew anything. But the contact logs and other material demonstrate otherwise. For instance, it was policy for these logs to be sent to the unit’s managers every week. They were written to be read by others – including messages left in the logs for the Senior Investigating Officer to read. This puts the lie to the police’s position that Kennedy was a ‘rogue’ operator – it is clear, as Kennedy himself told Parliament, that they knew what he was doing at all times.

Kate said:

The cover logs are damning. The Police try to claim senior officers didn’t read the logs. That is not borne out by the evidence – throughout the logs there are personal notes to the Senior Investigating Officer, including the problem of me wanting to meet MK’s mum.

Likewise, part of the police case has been that the undercover unit was a silo, kept discrete from even the rest of the NPOIU. But, again, this is demonstrably untrue.

And what of all the other material? The logs and intelligence reports show that campaigners’ relationships were regularly reported as a matter of course by the undercover and it was deemed important enough to be circulated onward? Yet not one of Kennedy or the other undercovers’ relationships appear in the material. The more one looks at that side of things, the more it is obvious something was amiss. It’s hard to be definitive, but it appears that any such material was being suppressed – ‘sanitised’, as they put it.

As Kate’s barrister, Charlotte Kilroy QC, argues there was a cultural practice of ignoring relationships deeply embedded in the unit, treating them as a given though not to be mentioned.

The police have relied heavily on there being a supposed prohibition on sexual relationships, but are unable to point to any concrete proof of this, other than general regulations against criminality and a duty to respect human rights. They claim that because they now accept sexual relationships are an abuse of Article 3, that means that must have always been the case. Plus, they argue, there are a some bits of circumstantial evidence in their favour, such as the denials of an undercover trainer, and a supposed role-playing exercise in the training given to undercovers.

Kilroy has ably unwound their dubious logic. For example, while there was an explicit prohibition on using drugs for the period in question, no equivalent guidance existed for sexual relationships (since the undercover policing scandal broke ten years ago, a more explicit prohibition on sexual relationships has been made police policy). And it didn’t appear to apply to the NPOIU’s sister unit, the Special Demonstration Squad, which spoke of ‘fleeting, disastrous relationships’ forming part of an undercover’s ‘tradecraft’.

Kate said:

The Tradecraft Manual shows that although it may have been suggested that #spycops sexual relationships should be “avoided” it was not said that they should never happen. Viewed alongside what happened in practice, relationships were not fleeting, although they were disastrous.

The importance of this was it showed there was no real prohibition on sexual relationships worth its salt within the undercover policing units.

CULTURAL PRACTICE

Kilroy also set out the cultural context around Kate’s case in two ways.

The first of these entailed exploring the obvious parallels with other undercovers’ deceitful relationships. Clearly both Lynn Watson and Marco Jacobs knew of Kennedy’s relationships, and Jacobs had his own. There seems to have been a culture of accepting these relationships, viewing them as unremarkable. Plus, there was a certain amount of cultural crossover between the Special Demonstration Squad and the NPOIU, the former unit clearly having a culture where relationships was permitted.

Kate said:

Police deny widespread indifference or encouragement for MK’s sexual relationships. But they also acknowledge that, by its very nature, a culture of sexism may not get written down. They have not investigated or presented any #spycops bosses as to be witnesses.

The second of Kilroy’s examinations of the culture concerned the ways in which the structures of these undercover policing units made them institutionally sexist. There were no proper monitoring systems. Training was inadequate, and supposedly relied on oral prohibitions, for which evidence is limited, to put it politely.

There was no acknowledgement that prolonged deployments increased the risk of such dishonest relationships occurring, as well as the likely impact on the women deceived in this way (for example, pregnancy, or lies about intentions). The spycops were content to manipulate these women, disregarding their dignity. The fact that these relationships were known about for many years in the SDS itself reveals a discriminatory attitude towards women and their rights.

AUTHORISATIONS DISMANTLED

Charlotte Kilroy QC

Kilroy also criticised the regime under which undercover police operations were authorised. According to RIPA and related regulations, senior officers had to sign off the deployments. Deployments had to be justified, necessary and proportionate. Her line of attack was to ably demonstrate that the arguments for necessity in the authorisations simply were not met and inadequate.

The first authorisations made out for Mark Kennedy did not name specific individuals or organisations to target, as they should have. Instead, he was sent into Nottingham’s Sumac Centre, a community centre used by a wide variety of groups – it was a fishing trip to gather ‘pre-emptive intelligence’. A list of groups which used the centre is provided in in support, but is clearly spurious. It includes what is described as the ‘extreme left wing’ Stop the War Coalition.

Kilroy was able to demonstrate the excessive breadth of the authorisations, which essentially deemed everyone a potential target for spying.

Kate said:

Stop the War is listed, described as a “traditionally extreme left wing” movement. It then talks about the massive demonstrations in London attended by millions of people and peaceful demonstrations that took place in Nottingham. This is what #spycops target as “extreme”.

Once in place, the authorisations were self-perpetuating justifications – Mark collected intelligence and once that started that was deemed sufficient in itself. There were no objectives by which it could be measured, something the police’s own internal reports acknowledge. Mission-creep became a feature, his deployment extending to cover campaigns across Europe that had no bearing on the UK. Criminality was no longer the main reason given but replaced by purely policing resource arguments. Justifications move on to merely protecting his ‘legend’.

Within the authorisations, when it came to ‘collateral intrusion’ of spying on those around activists, anyone involved, however peripherally, in protest or campaigning was considered a legitimate target, and the focus is on privacy in the strictest, data protection sense. What it did not do was consider the kinds of friendships Kennedy was forming, and just how intrusive the operation would be for those whose lives he invaded and reported back on.

WITHOUT JUSTIFICATION, SPYING IS UNLAWFUL

As such, the important consideration of collateral intrusion (an Article 8 ‘right to private and family life’ consideration in itself) was brushed aside, because almost everyone Kennedy came into contact with could be regarded as a target. The authorisations were based on calling everyone an extremist rather than particularising. There was no proper assessment, as required for it to be a justified deployment. As one of the judges put it, in the standard authorisations form the section for considering on collateral intrusion became an Article 8 box-ticking exercise.

Many of the authorisations were misleading and some contained lies. For example, in one of them, Kate is described as being a main organiser of a housing cooperative which was named as a target. This was utterly false, and the NPOIU officers signing off on it would have known this. She is only included as a named target when she was living in Spain and Kennedy wanted to maintain contact with her.

The authorisations show no pressing social need, being about pre-emptive intelligence gathering without clear targets or goal. It was an operation for its own sake, and became increasingly so as time went on. No proper assessment was made about the levels of interference that were actually required or justifiable. This is something that an internal report from the Serious Organised Crime Agency (into Kennedy and the NPOIU) was critical of.

This leads to an important legal point: once it becomes an undercover deployment for its own sake, with no specific outcomes, how can it be capable of meeting the criteria of being ‘necessary’? The ‘necessity’ condition must be met for such operations to be lawful. Kate’s argument is that it can be shown these operations were not necessary and therefore none of the Mark Kennedy authorisations, and possibly other undercover deployments, were lawful.

Day 3

THE RIGHT TO PROTEST

We began by returning to look at Articles 10 and 11 (free speech, and assembly), at the request of the judges. This pair of rights are often combined in this context as a general ‘right to protest’.

Kate is arguing that the extensive targeting of her over a decade amounted to not just an engagement of those rights but, more seriously, an actual interference with them.

This part of the case is not just about Kennedy, although he played a significant role in what can be termed ‘interference’, but the degree to which she was under surveillance and the impact it had on her. The basic argument is the State had no business monitoring her because of her political views and activities. It does not matter whether or not she was aware of the exact details of this surveillance, it still had an impact on her.

Kate’s barrister, Charlotte Kilroy QC, pointed to European case law that supported this position, recognising that extensive police surveillance in itself has a ‘chilling effect’ on protest.

As one of the judges, Professor Zellick, put it:

‘You might say the state has no business spying on the legitimate political activities of its opponents.’

The evidence allowed Kate to go further. By comparing her own memories with the contact logs, she could identify moments were she was being deliberately manipulated to meet Kennedy’s agenda (and that of his bosses) . He persuaded her to go to events that she was not interested in, or talked her out of others. In this he was leaning heavily on the closeness of their relationship and the trust she had placed in him.

She is still left wondering now just how much his influence affected her:

It is unchallenged in my witness statement that MK did influence and change my political views. #spycops were deeply manipulative and we were very close and he may have influenced me in ways I don’t even know. How many of the decisions and beliefs I held back then were my own?

Then there is the impact that the discovery has had on Kate and her comrades. She has gone from being deeply committed to political organising, to struggling to engage with people and large gatherings. She has become cut off from some groups as a result of her anxieties, which Kennedy and his cover officer knew affected her, which have now grown. Other groups were destroyed under the weight of the Kennedy revelations.

Kate explained:

I now find it very hard to engage with politics that reminds me of MK. The impact of betrayal by MK and other #spycops was devastating for the political groups and communities. Even if I wanted to continue, many of those wonderful projects, groups and movements no longer exist.

At this point one of the judges asked about the fact that some of the movements Kate was involved in were aware of the dangers of state surveillance. Kilroy responded that a concern was one thing, but what Kennedy exposed was the sheer extent the police were willing to go to gather information on political views.

Things were far worse than what the campaigners feared – in effect, their paranoia was nothing compared to the actual reality. And because it only came to light accidentally, it means the police cannot be trusted to be honest, to root out misbehaviour in their units.

So having argued that their Articles 10 and 11 were engaged, and breached, the next step is again to consider whether the State could make the case that this was justified. The police have already conceded that the sexual relationship with Kennedy did in itself interfere with Kate’s Article 10 rights. However, she wants to make the point that this goes much wider than Kennedy, that all the spying on her amounted to an ‘interference’, and that the actions of all the other undercovers need to be taken into account.

As with Articles 3 and 8 (freedom from torture etc, right to private and family life), the interferences arose out of the same police desire to monitor and control protest. It was the reason Kennedy and the other undercovers were deployed, and even the police’s own internal reports acknowledge that when it came to peaceful protest, they overstepped the line. The scope and depth of the reporting that the NPOIU set out to do was not justified under the legal regime, as shown in the analysis of the authorisations.

A PROBLEM WITH RIPA

Since 2000, the Regulation of Investigatory Powers Act (RIPA) has governed how bodies use covert monitoring tactics, including undercovers and informers, and issues such as collateral intrusion, should be handled.

There is also an important bit of case law, Malone v UK (1985), which requires that the law must be sufficiently clear to give citizens adequate indication of the circumstances and conditions on which authorities are empowered to use to this secret and potentially dangerous interference with the right to respect for private life.

Kilroy took the Tribunal through a careful analysis of RIPA, showing that Malone v UK was not satisfied. She pointed out that the level of authorisation required for undercover police was actually quite low in comparison to, say, planting a listening device or bugging a phone. Likewise, the conditions are much more stringent.

Kate said:

Who’d have thought that UK law, where uniformed officers need a warrant from a judge to search your garden shed, that all it would need would be the OK from another police officer for them to send #spycops to live in your home and sleep in your bed for years?

Kilroy argued this means that while some intrusion could be foreseeable, on the face of RIPA the public could not reasonably deduce that undercover policing would be used in such an intrusive way.

The judges questioned her, saying that while the relationships are agreed to be unlawful due to their violation of fundamental human rights, RIPA was not at fault, it’s just that the police hadn’t adhered to it.

To this, Kilroy responded that a related case, that of AKJ v Commissioner of Police of the Metropolis, had since ruled that the definition of relationships in RIPA as pertaining to undercovers did in fact encompass sexual/ intimate relationships. The law itself was not as clear as it should have been, given the extent of intrusion it permitted.

Without a clear prohibition on sexual relationships, the appropriate legal safeguards supposedly in place to properly reflect the severity of the intrusion were not actually there. So part of the problem lies with RIPA itself, something even HM Inspectorate of Constabulary had flagged up in previous reports.

THE POLICE REPLY

David Perry QC

The Metropolitan Police and National Police Chiefs Council, the Defendants in the case, were represented by David Perry QC. He began by claiming that the police were approaching the case with the least adversarial approach possible and seeking to disclose everything that could be, thereby raising not a few eyebrows.

He acknowledged that the operations were ‘tainted by illegality’ and their authorisations could be stigmatised as unlawful on the basis of the concessions already made by the police. These concessions were on the basis of Articles 3 and 8 (freedom from torture etc, right to private life), not on the grounds of the interference with the right to protest, other than where Kennedy’s sexual relationship with Kate Wilson had an impact on these.

This breach was further exacerbated by the fact that Kennedy’s cover officer, EN31, ought to have known of the relationship, a failure of the police’s ‘positive obligation’ under Articles 3 and 8. However, Perry takes EN31’s denial of any knowledge of sexual relationship at face value.

Perry didn’t want to detract from the admitted breaches, but did want to address their severity by interpreting the material as disclosed. This is a problem with much of this case – the lack of any real witness from the police side to adequately testify on their behalf. As a result, there is an awful lot of freestyle interpretation going on, with Perry putting it out there what he reckons the officers involved might have been thinking.

From the start it is clear that they are hanging Kennedy out to dry. Considerable time was spent on going through the regime, codes and training that officers received. We were told that they were instructed on the ethical and moral standards expected from them at all times. They say that Kennedy completely violated these. According to Perry, this was the starting point by which his fellow officers would treat and judge him, and he betrayed all of them, including EN31.

The police say they couldn’t possibly have foreseen what Kennedy would do. After all, before joining the NPOIU, Kennedy had been an experienced police officer (of ten years) which included low level undercover work as a Test Purchasing Officer buying illegal drugs. He’d gone through the training which, according to them, included prohibition of sexual relationships. His fellow officers could surely expect him to comply with the standards set out for all police officers, as well as for undercovers.

Kate highlighted:

Lieven J: Is there any evidence, and I mean evidence in the broadest possible sense, of any officer every being subjected to disciplinary action for having engaged in a sexual relationship whilst undercover?

Perry: No, there is not.

Perry pointed out that in having sexual relationships, Kennedy destroyed his own credibility as an undercover. Kennedy would have known had he witnessed any serious criminality, he could have been required to give evidence in court – but any such evidence would be hopelessly compromised by his personal relationships.

It is unclear if the barrister is aware of the significance of his words – the police have for a long time argued that the undercovers were guaranteed secrecy for life, and indeed we have seen the extent to which they will protect their identities. However, Perry was effectively conceding that the policing regime itself meant this could not be the case, that undercovers could not have such an unqualified expectation.

He then went on to argue that Kennedy was passing himself off as an honourable officer to his colleagues in the NPOIU while lying to them. Events such as him reporting a sexual advance by an activist demonstrated that he could be relied on to report such things honestly.

However, other evidence from the logs show that he was lying to them about his actions and reasons for doing things. For instance, on one occasion that he spent alone with ‘Lisa‘ (another woman he deceived into a relationship), his log entry claims to have included other people with whom he discussed political activity. Elsewhere he exaggerated to suit his own ends, and probably to justify his continued deployment.

Kate observed:

It seems the police point is MK did report a sexual advance by someone else. So #spycops Cover Officer could assume anything untoward that happened with anyone else (such as me) he would know. (Note: my relationship had been going on for 10 months by then)

EN31, was Kennedy’s Principal Cover Officer, someone he was in daily contact with and who had responsibility for his welfare and other issues. We know from the evidence that he would be physically close to Kennedy, and knew where he was at all times. He was in that position for the entire seven years of the deployment and clearly had a close bond with Kennedy.

It is accepted by the police that EN31, as Kennedy’s cover officer, should have been more intrusive and asked more questions. According to Perry, though, EN31 simply accepted Kennedy’s word in good faith and had no reason to believe otherwise. After all, Kennedy never reported that he was having sexual relationships. There were failings here, but the blame remains entirely with the undercover who deceived everyone, not just the women he targeted for relationships. Furthermore, the relationships were not for tactical purposes, they were for his own personal reasons and needs.

Significant to Perry’s case is that the contact logs did not record relationships per se. This was because Kennedy knew he’d be removed from the field if he did admit them.

Kate said:

The police go on to read a #spycops intelligence report 18/11/2003 “Katja” (that’s me) spent the night of the 17th November 2003 at Mark Stone’s flat in Marshall Street. Somehow this is supposed to support their case, because it doesn’t say we had sex. (We did)

It is also the police position that Kennedy’s own evidence about this, such as that given before the Home Affairs Select Committee, shows him to be an unreliable witness, angry with his seniors and seeking to blame them (when he said they must have known about his relationships). Even the Serious Organised Crime Agency (SOCA), which reviewed all Kennedy’s material in 2011, did not see a trace in the material of sexual relationships.

Kate noted the exchange:

Perry: “MK did not report any romantic or sexual advance by the claimant towards him whilst he was deployed.”

Judge: Mr Perry, is that really how you want that point to be recorded?

Apparently, yes, it is!

Overall, Perry is protective of EN31, presenting him as a trusting fella misled by Kennedy. He speculates on behalf of the cover officer as to what he was thinking and how he interpreted the the material, taking his statement very much at face value and focusing on the contact logs as if they gave the full picture. He did not explore the relationship between Kennedy and EN31, which appears from the logs to have been very close and matey.

Likewise, Perry has a very particular interpretation of the material in the logs on the grounds of viewing them through EN31’s eyes – as if they are the arbitrators of the facts themselves. Without going into detail, the Tribunal was presented with a weird interpretation of life among the campaigners targeted by Kennedy through this incomplete reporting. For instance, he spent some time on the fact that as they travelled around to events, campaigners would spend time at each others addresses. So mentions of this in the logs should not be taken as untoward or indicative of sexual relationships. Likewise, by the nature of the groups targeted, Kennedy would have to associate with people of both genders.

It was frankly weak stuff. It is a misleading reading of detailed contact logs which clearly infer Kennedy was conducting a relationship with Kate Wilson. At best, it is saying that in seven years, EN31 was so profoundly  incompetent that he suspected nothing and did nothing. Likewise, the various senior officers in the NPOIU who also read the logs. It also calls into to question the thoroughness of the SOCA report if they missed the obvious.

A TERRORIST AT THE HOME OFFICE?

Not long before the end of the day, there was an important exchange regarding an NPOIU intelligence report from the time Kate Wilson is recorded as having first stayed over at Kennedy’s house in Nottingham. Justice Lieven noted that it contained a reference to a family friend of Kate’s, describing him as a ‘South African terrorist working at the Home Office’ when he was in fact a Minister of State.

Perry was quick to distance the police from the outrageous comment, claiming it was an example of Kennedy’s inaccurate reporting, but Justice Lieven pointed out that Kennedy’s contact logs for that period are among the documents that have been ‘lost’, and that this report is authored by someone else in the NPOIU, not Kennedy, and that they clearly thought the information was of sufficient interest to send up the chain. Perry accepted that the information was derived from Kennedy, but that the report was written by someone else.

Lieven demanded that the police lawyers address the issue by producing something that would allow her to understand who authored, saw and commented on the reports. The police barrister said he would have to take instruction, and promised her something by Monday.

THE HEARINGS CONTINUE…

On Friday 23 April, the Tribunal sat in ‘closed session’. This is where evidence that was not shown to Kate was to be discussed. She was not allowed to be there, although the police will be. Instead her interests will be represented by the Counsel to The Tribunal, Sarah Hannett QC.

Monday 26 April will see the open hearings resume, with a continuation of the police case. This will be followed by a response from Kate’s lawyer, Charlotte Kilroy QC, to any new points. At which point the hearing finally ends. It is unknown when judgement will be handed down, but it may take several months.

Here’s the report of the rest of Kate Wilson’s hearing (Monday 26 & Tuesday 27 April 2021)

Kate Wilson outside the Royal Courts of Justice, 3 October 2018

Kate Wilson was deceived into a long term intimate relationship by Mark Stone, who she now knows was undercover police officer Mark Kennedy.

A decade after Kate’s legal case against the police began, it concludes with a hearing at the Investigatory Powers Tribunal from 20th-28th April.

Among other issues, this case will examine sexist discrimination within the Metropolitan Police Service, and the systemic disregard for women’s fundamental human rights between 1998 and 2010.

Her case refers to the actions of at least 6 different undercover officers serving in the secret political spycops units, the Special Demonstration Squad and the National Public Order Intelligence Unit, during that time.

Kate has already received startling admissions that the police breached her human rights. Specifically, they are;

Article 3: Freedom from torture and inhuman or degrading treatment
Article 8: Respect for your private and family life, home and correspondence
Article 10: Freedom of expression

She is, through these proceedings, the only person to have received significant disclosure of police ‘intelligence’ files held about her.

Join us to stand in solidarity with Kate on Tuesday 20th April at 9.00am. We will be outside the Royal Courts of Justice in London. If you can’t be there, show your solidarity online using the hashtag #WeStandWithKate

We will be outside of the RCJ from 9.00am, for roughly an hour, before the proceedings begin. Please bring banners and placards if you have them. We will observe social distancing guidelines by keeping a two metre distance between us. Please wear a mask if you’re able to.

Messages of support are a great way to show solidarity with Kate.
Please email messages to contact@policespiesoutoflives.org.uk

For more about Kate Wilson’s spycops case, see her page at Police Spies Out of Lives.

Kate Wilson outside the Royal Courts of Justice

Kate Wilson has received startling admissions from the Metropolitan Police Service and the National Police Chiefs Council – at a hearing before the Investigatory Powers Tribunal at the Royal Courts of Justice being held this week.

These far-reaching admissions highlight the inadequacy of even the current legislation to provide protection to members of the public from dangerous abuses by agents and informers who are the Covert Human Intelligence Sources referred to in the current parliamentary CHIS Bill. This bill is shockingly set to significantly reduce existing levels of protection.

The police have admitted that they breached Kate’s Article 8 ECHR rights – to a private and family life – after conceding that her surveillance by at least six undercover officers over a sustained period, was neither proportionate nor justified. Previously they had only admitted that Article 8 was breached by the undercover officer Mark Kennedy when he deceived her into a long-term intimate and sexual relationship. Now they admit the intrusion was even greater.

Yet the police continue to claim that authorisations for surveillance of Kate and the environmental and social justice movements she was active in were lawful and legitimate; arguments particularly relevant right now with the worryingly hasty passage of the CHIS (Criminal Conduct) Bill through parliament. Kate fiercely contests this claim, and will ask that the court now examine the evidence and circumstances of the human rights breaches, as well as the lawfulness of the operations as a whole.

Kate says

“These admissions have wide reaching significance for the public at large. Over 30 women now know that they were deceived into intimate, sexual relationships with undercover officers. Many more people were subjected to similar infiltration by undercover officers. What happened to me was by no means unique, and hundreds of people will have had their rights violated in this way. These admissions mean it is simply not sustainable to say these operations were legitimate, proportionate, or lawful”

Of course, if the CHIS bill passes, new cases like Kate’s may no longer be able to be heard as the UK government are resistant to setting legal limits on any conduct that undercover operatives may consider to be justified. Other governments, such as Canada and the USA have written into security law that offences such as murder, torture, and sexual violence are not acceptable conduct for any reason.

Kate’s case should broadcast loudly to the public, and our legislators, that setting no limits on intrusions into the lives of citizens by security services and other undercover agents is profoundly dangerous for democracy.

Kate has fought this case for nine years. She has faced repeated attempts to shut down and delay her case, and fears this may be the start of another attempt to close the case down and avoid further scrutiny. The delays so far have been so severe that funding for legal counsel is exhausted and Kate is now a litigant in person – a huge undertaking against the vast resources of the police.

Many aspects of Kate’s case still need answers, such as whether her relationship with Kennedy was conducted with the knowledge and agreement of senior police officers, whether she suffered discrimination at the hands of the police because she was a woman, and whether Mark Kennedy and these other officers interfered with her right to freedom of expression, and freedom of association because of her political beliefs.

Originally published by Police Spies Out of Lives

For background on Kate Wilson’s human rights case against the police, see our post from her hearing in February 2020.

Kate Wilson outside the Royal Courts of Justice

Join us outside court on 27 February 2020 to support Kate Wilson in the next hearing of her landmark human rights case that could lay bare the inner workings and chain of command of Britain’s political secret police.

Kate was deceived into a long-term, intimate relationship with an undercover Metropolitan police officer, Mark Kennedy. She is bringing a case to the Investigatory Powers Tribunal, Britain’s special court for human rights affected by state surveillance.

Even before the full case is heard, these preliminary hearings have brought significant victories. The Met said they concede Kate’s claim that they violated her fundamental right to freedom from torture, inhuman or degrading treatment.

The Met also admitted that there are many thousands of relevant documents, and the sample seen shows the fine detail in which her relationship with Kenedy was recorded, detailing a dozen visits to stay with her parents, even describing gifts he bought for her. Kennedy’s ‘handler’ officer watched them together.

It’s demolished the Met’s wall of denial, built up over years claiming such relationships were the actions of rogue officers acting without management approval.

Kate is one of eight women whose legal case against the Met elicited the police’s historic apology of 2015 in which we were told:

‘The forming of a sexual relationship by an undercover officer would never be authorised in advance nor indeed used as a tactic of a deployment’

That came a year after another official report into the spycops scandal was equally unquivocal:

‘There are and never have been any circumstances where it would be appropriate for such covertly deployed officers to engage in intimate sexual relationships with those they are employed to infiltrate and target.

‘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.’

– Chief Constable Mick Creedon, ‘Operation Herne – Report 2‘, 2014

We now have proof that those statements are lies. If this comes from a 200 page sample of the 10,000 pages that mention Kate, imagine what there is in the rest.

The demo is outside Kate’s hearing at the Royal Courts of Justice on Thursday 27 February, 9.30am. Here’s an event listing for more details on that.

As for the basis of the case itself, here are the specifics:

Spycops Breaching Human Rights

Kate’s asserting that the Metropolitan Police breached five article of the European Convention of Human Rights:

Article 3

Article 3 prohibits torture and “inhuman or degrading treatment or punishment”. This is an absolute right, there are no circumstances that make this treatment acceptable.

“I have experienced  the psychological damage that these operations can cause. It is deep  and it is long lasting, and I think that the intrusiveness and the  psychological violence that is inherent in these tactics, and not just  the sexual relationships, but the intimacy, the abuse of trust, which is  completely inherent to any undercover policing operation could be  seriously underestimated by anyone who has not been subjected to that  tactic.”
– Kate Wilson

In their 2015 apology, the Metropolitan Police admitted the relationships were a “gross violation of personal dignity and integrity,” and said officers “preyed on the women’s good nature and had manipulated their emotions to a gratuitous extent.”

These relationships caused serious long-term harm and psychological trauma to the victims and others close to them. This, and the nature of the deception involved, mean they were violations of Article 3.  If this is upheld in court, a change in the law around the authorisation of intimate relationships by undercover officers might be forced.

“What happened to us has been akin to psychological torture”
– ‘Lisa’

“It turns your life upside down. Everything that you thought you knew suddenly becomes unreal; everything changes. You do not know who you can trust any more. It destroys everything.”
– Helen Steel

Article 8

Article 8 provides a right to respect for one’s private and family life, home and correspondence.

“I have been abused in by an undercover police officer who was sent into my life, into my home, into my parents’ home, and into my bed by the Metropolitan Police.”
– Kate Wilson

Intimate and sexual relationships by undercover officers concealing their real identity from the other person/s in the relationship/s represent a clear violation of the right to respect for private and family life. These relationships involved intrusion into people’s families, with some officers attending family funerals, and helping women through the grieving process. In their Apology, the Met Police admitted it was a “gross violation” of the women’s privacy.

“I met him when I was 29, and he disappeared about three months before I was 35. It was the time when I wanted to have children”
– ‘Alison’

Articles 10 & 11

Article 10 provides the right to freedom of expression, and Article 11 protects the right to freedom of assembly and association, including the right to form trade unions.

“I have been the subject of systematic surveillance and violations of my intimacy, my right to privacy, and my bodily integrity, for at least the last 18 years by police forces that are cooperating across European borders. Put simply it is a story of human rights abuse and persecution  by secret political police because of my beliefs and political activities”
– Kate Wilson

Women have been targeted because of their participation in social justice campaigns. Intimate and sexual relationships have been used as a tactic  to infiltrate campaigning and political organisatons. These relationships resulted in real psychological harm, violating the right to freedom of expression, and the right to freedom of assembly and association.

Any “like-minded activist” was considered a valid target for infiltration, and further authorisation was not sought for their inclusion into the operation, regardless of their relevance to any investigation. This approach clearly interferes with the right  to freedom of expression, and the right to freedom of assembly and association.

“There is probably more damage and violence that happens on a regular basis on a Friday night in town centres when people get drunk, but there is not a proposal to infiltrate every pub in the country on the off-chance that you are going to be able to prevent violence and damage. This is about political policing and trying to interfere with what is actually a recognised right to freedom of association and freedom of expression.”
– Helen Steel

“It has had a massive impact on my political activity…I suspected within about a month of his disappearance, and after about 18 months of different searches I came to believe it… I withdrew from political activity.”
– ‘Alison’

Article 14

Article 14 contains a prohibition of discrimination.

The relationships perpetrated by undercover police officers have overwhelomingly been men preying on women. It is institutional sexism. Undercover officers having sexual relationships with female activists plainly has a discriminatory effect on women being able to exercise their human rights under Articles 3, 8, 10 and 11.

“This highlights the sexist mindset that thought that it was acceptable for  the police to abuse women, and derail our lives in order to shore up the fake identities of these undercover policemen so they could undermine political movements and campaign groups.”
– Helen Steel

Qualified Human Rights

Whilst Article 3 – the right to freedom from torture, inhuman or degrading treatment – is an absolute right, Articlethe others in Kate’s claim are qualified rights that can be breached in certain circumstances. But interference is permissible only if there is a legal basis, the interference is necessary in a democratic society, or the interference is proportionate to what is sought to be achieved by carrying it out.

There is nothing in law which states that if a police officer suspects an  individual of involvement with a political movement, that officer is entitled to have a sexual relationship with the person to try to find out.

Sexual and intimate relationships cannot be said to be necessary – there are a multitude of reasons why any individual might decline to  become intimate with another person.  Given the level of invasion of privacy and the serious psychological harm caused by such relationships they cannot be thought of as proportionate for getting information on political campaign groups.

‘Collateral Intrusion’ and Human Rights

“He is in my mother’s wedding photograph, and I and my current partner have to see him in that.”
– ‘Alison’

Intrusion into the lives of people associated with the targets of the undercover officers is termed by the police ‘Collateral Intrusion.’ Perversely, its  authorisation appears to require less rigorous tests than intrusion into the lives of “suspects”

The depth of the intrusion into the claimants’ lives also meant a deep  intrusion into the lives of family members and close friends. For example, undercover police officers “infiltrated” deeply emotional family gatherings such as funerals, weddings and birthday celebrations. The psychological harm inflicted, not only on the claimants, but on close members of our family – including infirm, elderly relatives, and forming significant bonds with children – cannot be justified.

“There is no justification for somebody coming to my father’s funeral with me. There was no justification for putting an undercover cop into my family’s life.”
– ‘Lisa’

Collateral Intrusion is, it seems, a euphemism for violating the fundamental human rights of people who are not even the specific subjects of  surveillance, without any real consideration of the psychological damage that such deep deceptions might cause.

In the same way that it is not considered necessary and proportionate for undercover officers to form intimate sexual relationships, it is always wholly inappropriate for a police officer to insert themselves into extended families, in the way that being part of long-term relationships would necessitate.

Instead of being seen as ‘Collateral Intrusion’ that can be easily authorised, every individual whose Article 8 Human Rights may be breached by an operation should be afforded the respect of having the merits of that intrusion specifically considered and recorded, including the specific reasons why it is considered necessary and proportionate.

Join us outside court on 27 February 2020 to demand truth and justice for Kate Wilson and a nation whose political life has been corrupted by spycops.

Originally published by Police Spies Out of Lives.

Kate Wilson outside the Royal Courts of Justice, 3 October 2018

Wednesday 3 October was one of the most extraordinary days in the eight gruelling years of convoluted legal cases by spycops victims.

Kate Wilson, deceived into a long-term relationship by undercover police officer Mark Kennedy, finally secured proof that managers sanctioned it, and saw the court order police to substantively respond to her claim at long last.

As a group accustomed to police stonewalling ahead of a day in court, biased judges in the courtroom, and empty hands as we leave the building, it was a startling relief.

The public inquiry, which is supposed to be independent investigation into acknowledged police wrongdoing, has lost the faith of victims because it protects officers who committed perjury, sexually abused women and undermined democratic organisations.

And yet last week’s hearing at the Investigatory Powers Tribunal – special secret courts the adjudicate on matters of state surveillance – gave the Met short shrift and ordered them to produce witness statements responding to the facts of the case so that the Tribunal can establish what happened and who knew.

The myth of rogue police officers

The Met’s extensive self-investigation into spycops, Operation Herne, was unequivocal. In 2014 they issued a report telling us:

‘There are and never have been any circumstances where it would be appropriate for such covertly deployed officers to engage in intimate sexual relationships with those they are employed to infiltrate and target.

‘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.’

We now know this is not true.

Kate Wilson was given a 200 page sample of the 10,000 pages of documents containing her name that the Met admit to holding. They show Mark Kennedy’s managers were well aware of the extent of his relationship with her, right down to details of him cleaning her mum’s windows. They authorised payments – from the public purse – for him to buy her gifts.

It’s the latest U-turn in a long trail of police dodging disclosure and accountability. Wilson was one of eight women who brought a legal claim in 2011.

The Met initially suggested the women should instead sue the individual spycops in the relationships. They were rogue officers, the women were told.

‘It is absolutely not authorised… It is never acceptable under any circumstances… for them to engage in sex with any subject they come into contact with’
– Chief Constable Jon Murphy, spokesperson for the Association of Chief Police Officers which ran Mark Kennedy’s National Public Order Intelligence Unit.

But the patterns of the relationships with so many women over several decades were so similar it was patently clear that this was strategy and training. There is nothing Mark Kennedy did as a police officer that wasn’t done by dozens before him. Far from being rogue, he was textbook.

Unauthorised authorisations

The women noted the police’s contention that relationships weren’t authorised, and that it meant the case would be heard in open court, rather than the secretive Investigatory Powers Tribunal (IPT) that deals with authorised state surveillance.

The police baulked at this and, less than a year after telling the court the relationships were unauthorised, the same Met lawyers were back in the same courtroom saying of course the relationships were authorised, and therefore the case should go to the secretive IPT where complainants are barred from court and don’t see the evidence against them.

The police lawyers pointed out that the Regulation of Investigatory Powers Act 2000 authorises ‘personal and other relationships’.

The word ‘other’ might imply non-personal, such as business relationships, but the dictionary definition encompasses literally all kinds of relationship. Because of this, the Met said that any relationship – even years spent as a co-habiting lifepartner integrated into a family – can be regarded as included and would therefore be authorised and legal.

This argument is why Kate Wilson has ended up at the IPT and not in a normal court.

What is the Investigatory Powers Tribunal?

The IPT was set up under the Regulatory of Investigatory Powers Act 2000 (RIPA). The government realised that state surveillance could breach human rights, but didn’t want complaints dealt with in open court for reasons of security.

The IPT is a bizarre institution. Most of its hearings are held in secret. At these, the citizen complaining isn’t allowed to attend. Neither are their lawyers. They just get to effectively shove their papers under the door.

The state spies, however, are in court. The complainant doesn’t get to see what’s in the MI5/police papers, so they can make anything up about the complainant, or omit anything that is unhelpful to the security services’ case. The judges look at both sets of papers, talk to the spies, then make a judgment.

They only announce who has won. They do not explain their reasoning, nor even confirm that any spying ever took place. The complainant cannot appeal against the judgment.

We don’t know how many cases they hear, but looking at the annual reports of the
Interception of Communications Commissioner, between 2000 and 2011 there were at least 1,300. Of these, just 10 complaints – less than 1% – were upheld.

They have held Kate Wilson’s preliminary hearings in public, which bodes well for access to hearings in the rest of her case.

Police obstructing justice

The police, true to form, have tried to get out of disclosing documents with any argument that comes to hand. At the last hearing, they said that there’s no need to give Kate the 10,000 documents they have on her as they have already admitted that her human rights were breached.

They’ve previously used compensation to fob off similarly deceived women who would have preferred ‘less money and more truth‘. By the same token, this case is not about stopping at abstract admissions. It is about knowing the facts of what happened, how extensive the surveillance was, why it was authorised, who knew, and then holding those responsible accountable for their actions.

It’s a safe bet the other women abused by spycops were monitored and documented to the same degree. They too deserve real answers – all the women affected should be given their full, unredacted files so they can judge for themselves what went on rather than trusting the police who abused them to make redactions.

If had been found to be, say, a secret medical unit that had been abusing citizens for decades, it’s unthinkable that the doctors involved would be protected from scrutiny and prosecution. The exceptionalism expected by police – and too often granted to them – is utterly extraordinary.

An organisation interested in justice would want those who abuse power rooted out. Instead, the police commit a second injustice against the victims as they close ranks around miscreants, doing all they can to stymie efforts to get to the truth.

Kate Wilson’s case against the police

Wilson’s civil case with seven other women ended in 2015 with an unprecedented apology from the Met which plainly asserted:

‘sexual relationships between undercover police officers and members of the public should not happen. The forming of a sexual relationship by an undercover officer would never be authorised in advance nor indeed used as a tactic of a deployment.’

The new release of 200 pages from her files demolishes that. As Wilson wrote in The Guardian:

‘I was lied to by the police in a public apology that was supposed to be reparation for their deceit and abuse.

‘Now I really want answers. I want to know how high up the police hierarchy knowledge of the abuses went. I want access to the 10,000 documents they claim to hold on me, and to know why at least eight police officers were sent to deceive me and spy on every area of my life.

‘I want the court to examine the institutional sexism and political prejudices that informed the decisions they made, and to look at the legality of the operations and the inadequate laws that are supposed to protect our human rights.’

Wilson’s IPT case asserts that the police breached a number of her rights under the European Convention on Human Rights.

The police have already conceded that they violated Articles 3 and 8.

Article 3 – the right to freedom from torture, inhuman or degrading treatment – is a fundamental right; there are no circumstances in which it is acceptable to breach it. Since 2002, the constable’s oath taken by every new officer includes swearing to ‘uphold fundamental human rights’.

Article 8 – the right to a private and family life – is qualified. It may be breached for some reasons, for example for national security. The police have said this threshold was not reached in Wilson’s case. They admit that her activities were not a threat to the public and did not warrant such intrusion, which undermines the ‘eco terrorist domestic extremists’ line the police have been pushing to the Undercover Policing inquiry and elsewhere.

Taken together, these are already huge admissions with major implications for the efforts of other spycops’ victims seeking the truth about what was done to them.

She also claims they violated Article 10 (freedom of expression), Article 11 (freedom of association), and Article 14 (freedom from discrimination). The police still haven’t answered these.

What next for Kate Wilson’s case?

At a hearing a year ago the police were told to disclose their documents. They have failed to do this (again, this has been a standard delaying tactic over the last eight years).

The police told the court it would be expensive and Met funds are finite; these words came from the mouth of the fifth new lawyer for the police in the past six years, as the police have dragged out Wilson’s claim since 2011, seemingly having no problem finding funds for devious vexatious attempts to strike out the case and avoid accountability.

‘It’s expensive to comply with the law so we won’t’ isn’t a convincing argument from anyone, least of all those who are supposed to enforce it. The fact that it’s a big job makes it more important, not less. They systematically abused citizens for decades. The public deserve answers.

The Met told the court that they still regard Kennedy’s actions – which they admit breach the Human Rights Act – as properly granted and fully lawful.

They also argued that the Undercover Policing Inquiry could do the job of investigation. Even if we ignore the fact that it has turned into a secret public inquiry, gullibly believing the proven liars who are its subject whilst treating victims with suspicion and disdain, it is optimistically predicting that the public will see its report in 2024, six years away and 14 since Wilson discovered the truth about Kennedy.

The court was having none of it. It gave the police three months to provide witness statements with supporting evidence and a fully pleaded defence of their case. Then it went further, requesting that all relevant authorisations and the intelligence that led to those authorisation requests in the first place be explained and provided to the Tribunal, in order to assess whether the operations were lawful at all.

What the court does after that is uncertain. We have no guarantee that we will see any of the material. But if we were finally on the road to truth and justice, this is what it would look like.

‘I was abused by an undercover police officer who was sent into my life, into my home, into my parents’ home, and into my bed, by the Metropolitan Police.’
– Kate Wilson

Kate Wilson, lifelong social and environmental activist, was deceived into a long-term, intimate relationship by an undercover police officer, Mark Kennedy.

She won a Civil Claim against the police and is now taking legal action under human rights legislation.

There will be an important hearing in the case on Wednesday 3rd October, with a support demonstration outside beforehand.

The relationship

‘I met Mark in 2003 at an open political meeting in Nottingham about mobilising against the G8. He was charming, and we seemed to share a lot of interests. Within about two weeks of that meeting we had started a romantic relationship.

‘He moved into a house with me and some friends, and we lived together for over a year. He visited my parents on many occasions, and he attended my grandmother’s ninetieth birthday. He was my partner in just about everything, for two years, and then we separated, but we remained close friends with him often visiting me right up until 2010.’

Kate Wilson and Mark Kennedy

In 2010, a friend rang Kate to tell her that Mark had been outed as an undercover officer. The effect this has had on her life has been shattering.

‘The impact on your life and relationships is devastating. The psychological damage is deep and long lasting, because of the intrusiveness and the psychological violence of the tactics they use.

‘It is not just the sexual relationships, but the intimacy, the emotional manipulation and the abuse of trust, which is completely inherent to any undercover policing operation. I think the impact of that could be seriously underestimated by anyone who has not been subjected to it.’

Since 2010, Kate has discovered the infiltration was even greater than first suspected . For a period of twelve years, colleagues, house-mates, lovers and casual acquaintances have all turned out to have been undercover police, and all because of her dedication to making environmental and social change.

These officers include confirmed undercover officers Jim Boyling (‘Jim Sutton’), ‘Jason Bishop‘, ‘Marco Jacobs‘, ‘Lynn Watson‘, ‘Rod Richardson‘, and Mark Kennedy (‘Mark Stone’) as well as two men who visited, claiming to be ‘friends of Mark Stone’, introducing themselves as ‘Vinny’ and ‘Ed’. Of course, there may be others whose identity is not yet known.

Background on Kate’s legal battle

In 2015, the police withdrew their their defence against Kate’s civil claims of deceit, assault/battery, misfeasance in public office and negligence, and in 2017 she became one of a growing number of women to receive an apology from the Metropolitan Police for relationships they had with undercover police.

Assistant Commissioner Martin Hewitt, the Metropolitan Police finally conceded that:

‘officers, acting undercover whilst seeking to infiltrate protest groups, entered into long-term intimate sexual relationships with women which were abusive, deceitful, manipulative and wrong” and that “these relationships were a violation of the women’s human rights, an abuse of police power and caused significant trauma.’

However, the police continue to lie, obfuscate and obstruct any attempt to gain access to reliable information about the extent of this abuse and the political motivations behind it, or of how far up the chain of command knowledge of these tactics went. Kate and other women are therefore still fighting for the truth, and Kate’s claim has gone into the Human Rights Courts.

Human Rights Claim

Kate’s human rights claim is being heard by the Investigatory Powers Tribunal, a judicial body, which hears complaints about surveillance by public bodies.

She accuses the police of Human Rights violations that include inhumane and degrading treatment at the hands of Mark Kennedy and his supervisors; but which also include being a victim of sexist discrimination by police, and violations of her right to private life, and her political rights to freedom of association and expression, not only by Mark Kennedy, in his time as her partner, but also by at least seven other undercover officers, and by managers and commanding officers right up the chain, over a period of more than 12 years.

She is claiming that the police violated her Human Rights under Articles 3, 8, 10, 11 and 14 of the European Convention of Human Rights.

Ultimately, Kate is seeking the truth about what happened:

‘I want to see the files, I want them to fill in the gaps about all of those moments where I don’t know what was really happening in my life. I naively believed that the courts could force the police to give us information about that, because the truth is the most important reparation. Instead, what’s happened is that we’ve had the full might of the police legal department and huge amounts of public funds being dedicated to making sure we never get any any information at all.’

Kate’s claim deals with human rights violations that raise serious questions about the role of senior officers in sexual abuse.

‘I had a relationship with a man who didn’t exist, but that was supported by a back room team, managers, and superior officers who were making the decisions about that relationship. There were support teams following him around on our holidays, and people listening to our phone calls, and reading our emails. Perhaps they were taking photographs of us together, or even listening to us when I believed we were alone.

‘They knew every detail of my life. I still don’t even know who they were; and it is not just me. These units have been systematically abusing women in this way since 1968.’

And that amounts to institutional sexism, a fact the police are desperate to cover up.

Kate’s claim questions the legitimacy of such political policing in a democratic society, and the legality of the Regulation of Investigatory Powers Act (RIPA) that is used to authorise such operations.

The case is still in its preliminary stages. The police initially tried to get the case held in secret, but have since been forced to make significant public admissions in their written defence. They were ordered by the court to release secret documents, but in the most part have simply failed to do so.

They are now trying to get the case closed down, saying that if they admit to certain parts of the claim they should not need to release any more evidence. On 3rd October the Tribunal will hear arguments about whether it should give in to this request to limit the hearings.

This means the Tribunal would not examine the extent of senior officers’ involvement in the abuse; it would not assess the lawfulness of the involvement of at least seven other undercover police officers in Kate’s life; and it would ignore the issue of whether such intrusion violated the principle that human rights should be enjoyed by all, without discrimination on grounds of sex or political beliefs.

These are all extremely important issues, not only for Kate, but for society as a whole. The case comes at significant personal cost, and this gets worse the longer the Police try to obstruct it.

‘The police being unbelievably bullying in their response to our cases, and we have had to reveal huge amounts of deeply personal information to the courts and to the police and to the police solicitors. The whole process has been very damaging, constantly pouring salt in the wounds that were created when I found out that Mark in fact didn’t exist.’

Show your support for Kate by attending the hearing and/or the demonstration outside the hearing on Wednesday 3 October at 9.30am, and spread the word with the Facebook event.

This article was originally published by Police Spies Out of Lives.

Tilly Gifford

The Scottish establishment is inexplicably stalling investigations into political secret police in the country, but you can help.

Most of the known spycops were active in Scotland, including many who had deceived women they spied on into sexual relationships, something the police concede is an abuse of police power and a violation of human rights.

Despite such serious events being well known, the public inquiry into undercover policing is limited to events in England and Wales.

In December 2015 the Scottish government – supported by every party in the Scottish parliament – made a formal request for Scotland to be included in the Inquiry. The Home Office refused.

One would have thought the SNP government in Scotland would have seized on this – English officers committing gross violations of citizens in Scotland, and whilst English and Welsh victims get a full scale Inquiry their Scottish counterparts get nothing.

However, Scottish justice minister Michael Matheson merely commissioned HM Inspectorate of Constabulary in Scotland (HMICS) to conduct a review of the matter. As HMICS is effectively a satellite body of the police, we have no faith in its ability to deal with the issue in a credible way.

We met Michael Matheson in May 2017, and he told us he expected the report in September. He assured that that if the review showed serious issues, he would order a proper inquiry.

HMICS did indeed finish their report in September. After preparations, it was delivered to Matheson on 2nd November 2017. Nobody has heard anything about it since.

JUDICIAL REVIEW – WHEN IS A CASE NOT A CASE?

Meanwhile activist Tilly Gifford, who was targeted by spycops in Scotland, has sought to have a judicial review of the Home Office’s refusal to include Scotland in the public inquiry. The Scottish Legal Aid Board (SLAB) turned her down for funding, saying the case ‘did not have merits’.

This is at odds with a parallel case in Northern Ireland, where a judicial review is going ahead with public funding. Gifford crowdfunded her case and in September 2017 the Court of Session in Edinburgh accepted the merits of the case and granted permission to proceed to a full judicial review.

Gifford reapplied for legal aid but SLAB have moved the goalposts and now say they won’t fund the case unless it has ‘a good probability’ of winning.

This flat-out refusal with changing excuses is, on its own, enough to make one suspect political interference. Taken alongside the Scottish government’s reluctance to have a proper inquiry into spycops’ abuses, it is increasingly hard to come to any other conclusion (even before we consider other allegations of political interference in Scottish policing).

This is where you come in. We would like people to write to Scottish justice minister Michael Matheson to conduct an investigation into the decision to deny legal aid in this case, and to table a motion asking for the decision to be overturned.

As Gifford told Bella Caledonia this week:

‘I still don’t know how long I had been followed. I still don’t know who commissioned me as a target. I still don’t know what files are held on me. What I do know is that I was followed on the streets, that they had access to my home, that they could call me on my personal phone from untraceable numbers when they wanted…

‘communities in Wales and England who have suffered extreme abuses have the potential to have light shed on these sexual, emotional and physical violations carried out by the state. Yet, as it stands now, people in Scotland have no such recourse to truth or accountability. There are women who know they were targeted for sexual relationships by undercover operatives in Scotland.’

The Haldane Society of Socialist Lawyers have provided an online form and suggested text for you.

Please take a few minutes to add your name to the call and help secure access to justice for Tilly Gifford, that she may then let the country know what counter-democratic abuses have been committed in their name.

Bob Lambert, then and now

A man who was born as part of an undercover officer’s deployment is suing the police.

The 32 year old man, known as TBS, was the planned child of ‘Bob Robinson’ and an animal rights activist known as Jacqui.

‘Robinson’ was in fact undercover police officer Bob Lambert of the Special Demonstration Squad. He knew at the time he would be abandoning his new family a couple of years later to return to his real identity, wife and children.

As with cases brought by women deceived into relationships, the Met have tried to have the man’s case thrown out entirely. The Met won’t even meet TBS, according to his legal representative Jules Carey. However, at the High Court on Monday, Mr Justice Nicol rejected the police’s demands.

TBS was born in September 1985, when Lambert was two years into his relationship with Jacqui and they were living together. She told the BBC in 2014

‘He watched me give birth remember and, to me, he was watching his first child being born. He was there throughout the labour. And that is something so intimate between a man and a woman. And I shared that with a ghost, with someone who vaporised.’

Lambert was an undercover officer in the Special Demonstration Squad from 1983-88, infiltrating animal rights groups. Whilst undercover he:

• stole the identity of a dead child
• was arrested & prosecuted under a false identity
• co-wrote the leaflet that led to the McLibel trial
• was part of a group that placed timed incendiary devices in shops

Our detailed overview of his career was given as a talk at the University of St Andrews when he was still a lecturer there in 2015, and there is also an extensive profile by the Undercover Research Group.

When Lambert was exposed in October 2011, he made an apology to another woman he had later deceived into a relationship, Belinda Harvey, but made no mention of Jacqui or his son. They only found out the truth when Jacqui stumbled across it in a newspaper in June 2012, as she detailed in harrowing testimony to parliament. She told the Guardian ‘it is like being raped by the state’.

TBS was 26 at the time and the revelation has caused him to suffer Adjustment Disorder with Depressed Mood since. He told the Guardian of his shock

‘It kind of messes with your identity and who you think you are.’

He continued, saying that finding out that the chance of a father figure

‘was denied to me because of the actions of the police is even more distressing because they are supposed to be upholders of the law… But they quite clearly are not… It is quite scary to me just how the police can dip in and out of people’s lives. They still seem to struggle with realising the impact of what they have done.’

TBS is not suing Lambert, but the Met for their failures of supervision. The Met have already reached settlements with a number of women deceived into relationships – Jacqui was the first of these – so the principle of their institutional responsibility for abusive officers is surely established.

The long list of TBS’s damning assertions about his father is startling, including:

• a knowing or reckless abuse of the power entrusted to him as a public officer, which he knew was likely to cause the Claimant psychiatric injury, or was recklessly indifferent to this consequence.
• he was not and/or could not lawfully have been authorised to commence a sexual relationship with Jacqui, to father a child with her, to fulfil a father’s role under his false identity and/or to present a false explanation for his abandonment of the Claimant or was reckless as to the same, and that doing so was in plain breach of his obligations as a police officer and such guidance that was or should have been given to him.
• The circumstances of the Claimant’s conception, early life and abandonment by BL carried with it an obvious risk that the Claimant would suffer psychiatric harm.

The police’s defence is, if anything, even more astonishing. They claim abandoning a three year old who doesn’t retain an clear memory of their parent cannot cause harm. That is to say, a child isn’t bonded enough with a parent by the age of three to be seriously distressed by that parent’s disappearance.

They then defend Lambert’s leaving as a positive action, saying if he had stayed with Jacqui the damaging deception would have gone on longer and ‘would have made matters worse’.

TBS’ placing the blame on the Met rests on the fact that Lambert’s managers knew about the relationship and were complicit, or if they didn’t then they were negligent.

In 2013 Lambert was asked by Channel 4 News if his managers knew about his relationships. He refused to answer, and then refused to explain why he was refusing to answer.

This might be because he is in a difficult position. Lambert was later promoted to running the Special Demonstration Squad, where he deployed officers such as Jim Boyling, Andy Coles and Mark Jenner who also deceived women into long-term intimate relationships. So, whether the blame comes down to the individual officers or their managers, Lambert is guilty.

Whatever Lambert’s managers knew of his various abuses, they didn’t mind. Abusing women and deceiving courts was textbook stuff for the spycops units and, rather than Lambert being reprimanded for his behaviour, whistleblower officer Peter Francis says Lambert’s colleagues felt

‘He did what is hands down regarded as the best tour of duty ever’

As well as going on to run the Special Demonstration Squad, overseeing the spying on Stephen Lawrence’s family, Lambert was later rewarded with an MBE ‘for services to policing’.

TBS is, as far as we know, in a unique position. But with the vast majority of officers from the political secret police units still completely unknown, there may be more people like him, abandoned children of mothers abused by spycops.

With the Met admitting that their sexual abuse of women constitutes ‘torture, inhuman or degrading treatment’, it is past time for them to end their obstruction of justice. They must stop their obstruction of justice for people like TBS. They must name names so the victims can get answers and the wider public can know the truth of what has been done in their name.

Kate Wilson and Mark Kennedy

The Metropolitan Police have admitted that undercover officers deceiving women into relationships breaches human rights.

Specifically, it breaches the right to freedom from torture and inhuman or degrading treatment, and also the right to a family and private life.

The shock revelation came this week in the latest legal hearing for social justice activist Kate Wilson, who was deceived into a two year relationship by undercover officer Mark Kennedy from 2003 to 2005.

THE LEGAL CASE

Kate is one of eight women, all deceived into intimate relationships by undercover officers, who sued the police in 2011. They alleged deceit, assault, misfeasance in public office and negligence.

They also claimed the relationships breached their human rights, including Article 3 (no one shall be subject to inhuman and degrading treatment) and Article 8 (respect for private and family life, including the right to form relationships without unjustified interference by the state).

Although the relationships were very similar, legal action on human rights could only be taken by the women affected after the Human Rights Act 1998 made the European Convention enforceable in English courts. This ruled out all the women except those who had relationships with Mark Kennedy.

As soon as the women brought their case, the Met began spending vast sums of public money on lawyers who tried every trick to avoid accountability. It’s a pattern familiar to victims of state wrongdoing – the double injustice of what is done, and then the gruelling years of denial, smears and chicanery that compound the damage.

The Met dragged the eight women’s case out for four years before issuing an abject apology in November 2015 (other identical cases still inch onward).

In the apology, the Met admitted

‘these relationships were a violation of the women’s human rights, an abuse of police power and caused significant trauma’

However, they did not specify which rights they had violated.

Kate fought on with her human rights claim. It has been sent to the Investigatory Powers Tribunal, a secret court that deal with state surveillance issues and almost invariably supports the state spies’ side. Of the thousands of cases the IPT has heard – it doesn’t tell us precisely how many that is – only one is known to have found in favour of the citizen.

INHUMAN, INEXCUSABLE

This week, six years since her case began and more than two years since the Met admitted breaching human rights, Kate was back at a preliminary hearing for her case.

The Met admitted that Kennedy’s actions as a police officer were indeed a breach of articles 3 and 8. Though they denied or declined to admit some of the specific instances Kate cites, this is nonetheless hugely significant.

‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’
– Article 3

There are no excuses or exceptions to article 3. Nothing can ever make it justified under any circumstances.

‘Everyone has the right to respect for his private and family life, his home and his correspondence.

‘There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety, or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’.
– Article 8

Article 8 is conditional and that, if anything, makes the Met admission all the more important. They have just admitted that it wasn’t necessary for officers to do this in order to protect us from political activists.

This finally flattens the line peddled by senior police who told us in 2012 that Kennedy’s targets

‘were not individuals engaging in peaceful protest, or even people who were found to be guilty of lesser public order offences. They were individuals intent on perpetrating acts of a serious and violent nature against citizens going about their everyday lives’.

Chief Constable Jon Murphy flapped his arms and shrieked that Kennedy was keeping us safe from people who

‘are intent on causing harm, committing crime and on occasions disabling parts of the national critical infrastructure. That has the potential to deny utilities to hospitals, schools, businesses and your granny’.

It is now agreed that neither your health and morals, the wellbeing of the country nor your granny were under threat from Kate Wilson.

Moreover, if it is true that Kennedy’s relationships breached these rights, it is surely true of the officers who identically deceived other women. This can only increase pressure for the public inquiry to release the cover names of officers from the political secret police.

IT’S NOT JUST KATE WILSON

At last month’s hearing the Chair, Sir John Mitting, gave a clear statement on the women’s right to know the names and the truth.

‘I have listened to some of the accounts, posted on the Internet, of women who entered into intimate relationships with male undercover officers. They are eloquent and moving. Each of them is entitled to a true account of how and why they came to be induced to conduct an intimate  relationship with a man deployed for police purposes with an identity and background which was not his own…

‘When there is material which gives rise to a suspicion that such an intimate relationship may have been formed by an undercover officer in a cover name, there is a compelling practical reason to require the cover name to be published: to reveal to the woman or women concerned that they may have had an intimate relationship with a man in an identity not his own’.

Shortly afterwards, the lawyer for the victims of spying, Phillippa Kaufmann QC, dropped a bombshell. Mitting was dealing with one of the earliest officers – a man known as Rick Gibson who infiltrated left wing and anti-war campaigns – and was dismissing the idea that anything from so long ago could be relevant. Kaufmann stunned the court by revealing that Gibson had at least two relationships with women he spied on.

The information came to light the way it did for the others, indeed the only way it can happen at all. The officer’s cover name was published, people who were spied on were found, they realised the truth and came forward to tell us what happened.

Most known spycops deceived women into relationships. Most of them did it with multiple women. For decades, it was done strategically. This is institutional sexism.

There must be dozens, probably hundreds, more women out there just as abused and just as deserving of the truth as Kate Wilson.

RELEASE THE NAMES

The officers cannot be trusted to account for themselves. They are trained liars. It is their wrongdoing that is under investigation. To this day, Mark Kennedy only admits to two relationships with women he spied on even though the Met have already reached settlements with four.

Mitting’s remit is to discover the truth. He says he holds the abuse of women as a cherished element of this issue, deserving of the full facts. The only way he can deliver on that is to publish the cover names.

As the Undercover Research Group showed with their bombshell at the Inquiry hearing, there is often more to it than the police admit, and it is we activists who are better, faster, more methodical, more ethical and more trustworthy than the police.

The best way to get the truth is to release the cover names, let us have time to do the research and find the victims, then present our findings. The Inquiry cannot begin to do its job until it knows what happened. It cannot know what happened until the victims come forward. Releasing the cover names is a minimum prerequisite for the Inquiry to have a hope of fulfilling its purpose.

This week’s admission that a large proportion of officers breached fundamental human rights emphasises the grave seriousness of the issue. Mitting’s desire to grant officers anonymity out of consideration for their possible hurt feelings is indefensible. Those who did nothing wrong need fear no acrimony, whilst those who subjected citizens to torture, inhuman or degrading treatment must not be allowed to hide for fear of being held accountable.

We have waited long enough. It is time to release the names and let the truth be told.

Kate Wilson’s full hearing is expected to take place in spring 2018.