DIL AND OTHERS V COMMISSIONERS OF THE POLICE FOR THE METROPOLIS [2014] EWHC 2184 (QB)
FACTS:-
The Claimants (save for one) were environmental activists or campaigners on social justice. They brought claims for deceit, misfeasance, assault/battery or negligence against the Metropolitan Police.
They alleged that the police encouraged or permitted undercover officers in the Special Demonstration Squad ("SDS"), a unit that was later disbanded, to embark on sexual relationships with women members of groups whose activities were of concern to the police, as a means of infiltrating such groups.
In their pleaded Defence the police either expressly refused to confirm or to deny each of these allegations, both the general and the individual. Their position was based on a well established policy that the police would neither confirm nor deny ("NCND") whether a particular person was either an informer or an undercover officer. They applied to strike out all the claims on the grounds that they could not take any active role in the case without infringing the NCND policy; alternatively, for an order releasing them from the standard disclosure obligations and prohibiting the disclosure of the identity of each alleged tortfeasor and each witness in the proceedings.
The strike-out application was later withdrawn in the light of a recent announcement by the Home Secretary and the recent publication of two reports about the police’s undercover policing. It was recognised as being unsustainable for the the Metropolitan Police Service to continue to regard the public interest in maintaining NCND as requiring that the Claimants' claims be struck out at the present time.
However the police made it clear that they were entitled neither to confirm nor deny the Claimants’ allegations. However they conceded if the Claimants established that police officers did enter into sexual relationships with them in order to obtain information, then the police would not seek to argue in this case that the officers were acting appropriately.
The Claimants applied for an order "seeking a determination and consequential Order that pursuant to CPR 3.1(m) the defendant is not entitled to rely on NCND so as to resist pleading a Defence in accordance with CPR 16.5(1)".
JUDGEMENT:-
Mr Justice Bean considered the allegations by the individual claimants and the Defence. The Defence said that the Claimants' allegations “in so far as they relate to the SDS or the alleged actions of alleged undercover officers are neither confirmed nor denied". As to the causes of action relied on by the Claimants: it was denied that the acts alleged constituted the tort of deceit; in respect of the claim in assault or battery it was argued that, if the Claimants voluntarily engaged in sexual activity with individuals who had lied about their identities and occupations, consent would not as a matter of law have been vitiated by such alleged deception; and in answer to the claim in negligence the existence of a duty of care was disputed. As to the claim alleging misfeasance in public office, the Defence stated that the Claimants were required to prove that officers of the Defendant (a) acted unlawfully and (b) acted with malice, or knew that the unlawful acts (or any of them) would probably injure the Claimants.
Bean J said that one of the most important recommendations made by Lord Woolf in his Access to Justice report in 1996 was that pleadings should not be technical documents, and in particular that the Defence should set out the Defendant's detailed response to the claim and make clear the real issues between the parties. He referred to CPR 16.5.
Bean J then considered the law on NCND. He referred to the following cases:-
Bean J extrapolated the following principles.
(1) There was a very strong public interest in protecting the anonymity of informers, and similarly of undercover officers (UCOs), and thus of permitting them and their superiors neither to confirm nor deny their status; but it was for the court to balance the public interest in the NCND policy against any other competing public interests which might be applicable.
(2) There was a well-established exception in a criminal trial where revealing the identity of the informer or the UCO was necessary to avoid a miscarriage of justice.
(3) Even where an individual informant or UCO had self-disclosed, the police (or the Secretary of State) might nevertheless be permitted to rely on NCND in respect of allegations in the case where to admit or deny them might endanger other people, hamper police investigations, assist criminals, or reveal police operational methods.
Bean J said that he did not accept that there was now, in 2014, any legitimate public interest entitling the police to maintain the stance of NCND in respect of this general allegation. The claims related to alleged activities of officers of the SDS prior to its disbandment in 2008. It was not suggested that the use of long term sexual relationships of this kind as a police tactic was continuing. It was also not argued that it would be appropriate now, nor that (if it did occur) it was appropriate then. He therefore ruled that the Defendant could rely on NCND to avoid answering the general allegation to which he had referred above.
He turned to the specific allegations that the individual men with whom the Claimants had relationships were undercover officers. In the first case, “JS” had been publicly named as an Undercover Officer by the police, and the second “BR had been publicly named by the Independent Police Complaints Commission. In those cases, NCND could no longer be relied upon. However in another two cases, neither of the men had self-disclosed nor been officially named as an undercover officer, although each had been named publicly in a variety of media. In those circumstances Bean J considered that the Commissioner should not be required to admit or deny whether either of them was an undercover officer or admit or deny their real name.
That might only postpone the day of reckoning, in the sense that if the case proceeded and no evidence was adduced to challenge that put forward by the Claimants, it appeared likely that the respective factual cases put forward by them would be accepted.
The police would have 28 days from the handing down of this judgment in which to amend their Defence in order either to admit or deny that: (a) officers of the Metropolitan Police Service, as part of their work as undercover officers and using false identities, engaged in long term intimate sexual relationships with those whose activities the MPS wished to observe; (b) this was authorised or acquiesced in by senior management; (c) "JS" was such an officer; and (d) "BR" was such an officer.
FACTS:-
The Claimants (save for one) were environmental activists or campaigners on social justice. They brought claims for deceit, misfeasance, assault/battery or negligence against the Metropolitan Police.
They alleged that the police encouraged or permitted undercover officers in the Special Demonstration Squad ("SDS"), a unit that was later disbanded, to embark on sexual relationships with women members of groups whose activities were of concern to the police, as a means of infiltrating such groups.
In their pleaded Defence the police either expressly refused to confirm or to deny each of these allegations, both the general and the individual. Their position was based on a well established policy that the police would neither confirm nor deny ("NCND") whether a particular person was either an informer or an undercover officer. They applied to strike out all the claims on the grounds that they could not take any active role in the case without infringing the NCND policy; alternatively, for an order releasing them from the standard disclosure obligations and prohibiting the disclosure of the identity of each alleged tortfeasor and each witness in the proceedings.
The strike-out application was later withdrawn in the light of a recent announcement by the Home Secretary and the recent publication of two reports about the police’s undercover policing. It was recognised as being unsustainable for the the Metropolitan Police Service to continue to regard the public interest in maintaining NCND as requiring that the Claimants' claims be struck out at the present time.
However the police made it clear that they were entitled neither to confirm nor deny the Claimants’ allegations. However they conceded if the Claimants established that police officers did enter into sexual relationships with them in order to obtain information, then the police would not seek to argue in this case that the officers were acting appropriately.
The Claimants applied for an order "seeking a determination and consequential Order that pursuant to CPR 3.1(m) the defendant is not entitled to rely on NCND so as to resist pleading a Defence in accordance with CPR 16.5(1)".
JUDGEMENT:-
Mr Justice Bean considered the allegations by the individual claimants and the Defence. The Defence said that the Claimants' allegations “in so far as they relate to the SDS or the alleged actions of alleged undercover officers are neither confirmed nor denied". As to the causes of action relied on by the Claimants: it was denied that the acts alleged constituted the tort of deceit; in respect of the claim in assault or battery it was argued that, if the Claimants voluntarily engaged in sexual activity with individuals who had lied about their identities and occupations, consent would not as a matter of law have been vitiated by such alleged deception; and in answer to the claim in negligence the existence of a duty of care was disputed. As to the claim alleging misfeasance in public office, the Defence stated that the Claimants were required to prove that officers of the Defendant (a) acted unlawfully and (b) acted with malice, or knew that the unlawful acts (or any of them) would probably injure the Claimants.
Bean J said that one of the most important recommendations made by Lord Woolf in his Access to Justice report in 1996 was that pleadings should not be technical documents, and in particular that the Defence should set out the Defendant's detailed response to the claim and make clear the real issues between the parties. He referred to CPR 16.5.
Bean J then considered the law on NCND. He referred to the following cases:-
- Attorney General v Briant (1846) 18 M&W 168
- Marks v Beyfus (1890) 25 QBD 494
- R v Agar (1990) 90 Cr App R 318
- In re Scappaticci [2003] NIQB 56.
- D v NSPCC [1978] AC 171
- Savage v Chief Constable of Hampshire [1997] 1 WLR 1061
- Carnduff v Rock [2001] 1 WLR 1786
- Chief Constable of Greater Manchester Police v McNally [2002] 2 Cr App R 37
- Tariq v Home Office [2012] 1 AC 452
- Al-Rawi v Security Service [2012] 1 AC 531
- Mohamed and CF v Secretary of State for the Home Department [2014] EWCA Civ 559,
Bean J extrapolated the following principles.
(1) There was a very strong public interest in protecting the anonymity of informers, and similarly of undercover officers (UCOs), and thus of permitting them and their superiors neither to confirm nor deny their status; but it was for the court to balance the public interest in the NCND policy against any other competing public interests which might be applicable.
(2) There was a well-established exception in a criminal trial where revealing the identity of the informer or the UCO was necessary to avoid a miscarriage of justice.
(3) Even where an individual informant or UCO had self-disclosed, the police (or the Secretary of State) might nevertheless be permitted to rely on NCND in respect of allegations in the case where to admit or deny them might endanger other people, hamper police investigations, assist criminals, or reveal police operational methods.
Bean J said that he did not accept that there was now, in 2014, any legitimate public interest entitling the police to maintain the stance of NCND in respect of this general allegation. The claims related to alleged activities of officers of the SDS prior to its disbandment in 2008. It was not suggested that the use of long term sexual relationships of this kind as a police tactic was continuing. It was also not argued that it would be appropriate now, nor that (if it did occur) it was appropriate then. He therefore ruled that the Defendant could rely on NCND to avoid answering the general allegation to which he had referred above.
He turned to the specific allegations that the individual men with whom the Claimants had relationships were undercover officers. In the first case, “JS” had been publicly named as an Undercover Officer by the police, and the second “BR had been publicly named by the Independent Police Complaints Commission. In those cases, NCND could no longer be relied upon. However in another two cases, neither of the men had self-disclosed nor been officially named as an undercover officer, although each had been named publicly in a variety of media. In those circumstances Bean J considered that the Commissioner should not be required to admit or deny whether either of them was an undercover officer or admit or deny their real name.
That might only postpone the day of reckoning, in the sense that if the case proceeded and no evidence was adduced to challenge that put forward by the Claimants, it appeared likely that the respective factual cases put forward by them would be accepted.
The police would have 28 days from the handing down of this judgment in which to amend their Defence in order either to admit or deny that: (a) officers of the Metropolitan Police Service, as part of their work as undercover officers and using false identities, engaged in long term intimate sexual relationships with those whose activities the MPS wished to observe; (b) this was authorised or acquiesced in by senior management; (c) "JS" was such an officer; and (d) "BR" was such an officer.