)
Last month, in extraordinary scenes, around 60 “core participants” (predominantly the subjects of mismanaged and egregiously intrusive undercover policing operations) walked out of the Royal Courts of Justice in protest. They were exasperated by the dawdling progress of the Undercover Policing Inquiry.
This Inquiry is focusing on some of the most offensive abuses of police power this country has ever seen. So far, activists and journalists have shown that undercover police have deceived innocent and vulnerable people into sexual relationships; appropriated the identities of dead children; helped construction firms to develop a blacklist of trade unionist construction workers; and spied on the wholly innocent relatives of murder victim, Stephen Lawrence, with the disturbingly ironic goal of protecting the reputation of the police.
As was articulated by their lead counsel, Phillippa Kaufmann QC, the participants felt that they “have got precisely nowhere in relation to [their] attempts to ensure that [they] can meaningfully participate.”
Perhaps the foremost concern of the participants is that the Inquiry has so far been all too ready to provide a protective veil of anonymity to those undercover officers who infiltrated the participants’ lives, without paying due regard to the countervailing interests of publicly disclosing officers’ identities.
This is no small issue. It is undeniable that anonymity might serve an important function in some circumstances. For example, where there is a credible danger that the police officer in question may be subject to physical harm, or where his or her good name would be unfairly impugned through some form of trivial or innocent association with tainted undercover policing units. But, when this protection is stretched too far and the process for adjudicating anonymity applications is opaque, the participants will be denied justice. Anonymity handicaps participants in their efforts to get to the truth by challenging the accounts that police officers provide.
An overly cautious approach to anonymity does not merely affect the immediate participants, it also undermines the legitimacy of the Inquiry and our core democratic institutions in the eyes of the public. We share a collective interest in rooting out and holding to account excessive secret surveillance. If we cannot trust that our wholly innocent participation, even in the most milquetoast forms of political activism, will not be subject to covert monitoring and manipulation by the police and security services, then we cannot trust that we are really living in a democratic society. Part of that trust flows from ensuring that, where the police have seemingly acted beyond the scope of the law, any Inquiry provides a transparent account of what went wrong and an exhaustive analysis of what can be done to restore the public’s confidence in its democratic institutions.
Sadly, the participants may be waiting a long time for a positive outcome. This is because a significant majority of the real identities of officers falling under the purview of the Inquiry will be restricted; in many cases, their cover names will also be concealed, too. Often, the Inquiry has not published its reasons for concealing an officer’s identity. This has even happened after the Inquiry itself concluded that there was a “low” risk of physical harm to the officer in question, and a “very low” risk that the revelation of the real or fake identity of the officer would increase this risk.
With each anonymity application submitted by the police the Inquiry Chairman, Sir John Mitting must balance the interests served through disclosing the real and/or cover identity of the officer in question against the interests of the public and participants, which might militate in favour of disclosure. In the case of the “low risk” officer above, the Inquiry determined (albeit behind closed doors) that it was very unlikely that this officer would come to any harm through identification. In the face of the strong interests that are served through transparency, to restrict the identification of an officer who seemingly played an important role in undercover policing without providing so much as a reason for this restriction seems to show contempt for the participants and the public.
As if to confirm that his approach to balancing these interests strongly favours the police, in December Sir John Mitting refused to identify yet another undercover police officer. His reason: that the officer would have been unlikely to have had any intimate relations while undercover because he had been married for many years. With the greatest respect to Sir John, anyone who considers this a valid reason for allowing a restriction order must not just out be of touch with the murky realities of undercover policing in the last three decades, but also unfamiliar with many great works of literature. If such tenuous reasons for granting anonymity continue to be accepted then the Inquiry will struggle to get to the truth, achieve justice or rebut the cries of “establishment cover-up!” that will inevitably follow. It needs to take transparency more seriously.
Dr Joe Purshouse is a Lecturer in criminal Law at UEA. His research focuses on the protection of human rights for subject to a criminal process under English law
Follow Joe on Twitter: @joepurshouse