I described the law relating to covert policing at a recent debate hosted by the Open Rights Group as somewhat of a confidence trick (defined by the Cambridge Dictionary as a trick to get someone to do what you want). Alternative words, said the same dictionary, included bamboozle, hocus-pocus and deceive. This last one, ‘deceive’ is interesting, since it was under the little known, less used, tort of deception that the victims of undercover cop, Mark Kennedy, brought civil proceedings against, amongst others, the Commissioner of the Metropolitan Police.
Earlier this year, Tugendhat J delivered the first judgment in this case, which has all the hallmarks of one that will eventually end up in the Supreme Court, holding, in essence, that it is possible to authorise an undercover police officer to sleep with unsuspecting females (or, applying the same logic, males for that matter) but not to engage in activity that would be a breach of a fundamental right. James Bond’s licence to kill was firmly revoked by the High Court, at least for now.
Covert policing is probably undergoing its most intense scrutiny, not just in legal terms, in its long history. In the aftermath of the Kennedy debacle there was no fewer than four reviews by various interested parties. It was considered by the criminal courts in R v Barkshire following an unprecedented invitation from the Director of Public Prosecutions that those convicted should appeal. The Home Affairs Select Committee published an urgent interim report in which it, with characteristic appreciation for grabbing a headline, urged fundamental review of, not just the single provision in the Regulation of Investigatory Powers Act 2000 (RIPA 2000) that was under scrutiny, but all the legislation governing undercover activities (whatever that means).
This call for whole-scale reform of the legislation was echoed by David Davies MP at the Open Rights Group debate. ‘Rip it up and start again,’ said the enigmatic politician. The context here was not the activities of Covert Human Intelligence Sources but the intelligence agencies that were embracing the gifts from foreign jurisdictions of ‘mega-data’ – vast swathes of private information, arbitrarily gathered and veiled under the tenuous description ‘intelligence’. There has been a proliferation of anachronisms, ‘prism’ and ‘tempora’ to name just two, which could have been lifted from the pages of a Fleming novel (the licence to spy is in no danger of being similarly constrained it seems).
At the other end of the telescope, the criminal courts have begun to tease out, or shoe-horn depending on your point of view, the impenetrable provisions of Part 1 of RIPA 2000 in order to provide the context for prosecutions relating to phone hacking. Whilst all of this goes on, politicians shamelessly use the brutal killing of an unarmed British soldier in broad daylight as the springboard for resurrecting the need for the inherently flawed Communications Data Bill, which not even our domestic intelligence agency, MI5, thinks would have made any difference to the terrible events that day.
Government’s response to the unanswerable claim that we now live in a surveillance state was captured in classic Steve Bell style by the Guardian who immortalised Foreign Secretary, William Hague’s repost: ‘You have nothing to fear, if you are doing nothing wrong.’ This Orwellian proclamation is worrying for a large number of reasons, not least how it squares with the presumption of innocence. But worse, it is a subjective judgment: is it wrong to grieve the death of a murdered son? Someone in Scotland Yard thought so, when undercover officers were tasked to monitor the family of Stephen Lawrence in order to gather material that may undermine them in the public’s eye. It is difficult to contemplate anything more offensive to the norms of basic human decency – except perhaps to steal the identity of dead infant.
Within all this, there are a number of essential questions, the first remains quis cusodiet ipsos custodes (who guards the guardians) and what the expectation can be that the law can hold the guardians to account in an environment of savage cuts, privatization and reduced access to justice. Secondly, there is the crisis of the proper allocation of resources (mega-data, like all ‘intelligence’, needs to be assessed, disseminated and acted upon at the same time as ‘targets’, perhaps like those responsible for the Woolwich outrage or 7/7 need to kept under surveillance).
For me, alongside the issue of acquisition there is the opposite and equal question of disclosure. The intelligence agencies are not part of the prosecution but a third party for the purposes of the Attorney General’s Guidance. Unless asked they are unlikely to provide any disclosure of material they hold. This is the responsibility of the Crown Prosecution Service, which was found so wanting in the Barkshire case. In the search for exculpatory material, can we have any confidence that the issue of disclosure – reigned in so much after the Criminal Procedure and Investigations Act 1996, despite the grave miscarriages of justice of the past – will be addressed by the agencies and prosecutorial authorities who are, after all, emanations of the state.
I fear that the Rubicon has been crossed and we must all now ponder whether, like Joseph K, in Kafka’s The Trial, we will wake up one morning and find ourselves accused without having done anything wrong: our efforts to secure justice beaten down and undermined because of our government’s arrogance, as Kafka said, ‘it is only because of their stupidity that they are able to be so sure of themselves.’
Simon McKay is a barrister specialising in criminal, human rights and regulatory law