The Home Affairs Committee has recently published an interim report on undercover policing. The report arises from the now well-publicised activities of the undercover officer Mark Kennedy. CPS concerns about police non-disclosure of information relating to Kennedy's conduct led to the collapse of the trial of a number of environmental activists in relation to a protest at a power station. The Court of Appeal later quashed the convictions of a number of other activists which had arisen from the same protest (R v Barkshire and others  EWCA Crim 1885). The Kennedy story really took off amid allegations that he had had at least one intimate sexual relationship with an activist while undercover. In this post I want to reflect briefly on a couple of the issues raised in the report: the permissibility of sexual relationships undercover; and the desirability of a broader review of undercover policing.
(I will not be dealing with the Committee's discussion of the use of the identities of dead children to provide source material for the creation of a plausible 'legend' for undercover officers. This unnecessary, potentially dangerous, and manifestly grotesque practice seems to have only recently come to light.)
On the issue of whether sexual relationships should be permissible as part of undercover activity, the Committee suggests (at Conclusion / Recommendation 1):
We do not believe that officers should enter into intimate, physical sexual relationships while using their false identities undercover without clear, prior authorisation, which should only be given in the most exceptional circumstances.
The Committee's substantive report is fairly short but is appended with evidence from a range of witnesses including a number of women with whom undercover officers (including Kennedy) had intimate sexual relationships. The evidence makes disturbing reading. The catastrophic impact of the relationships is vividly depicted, with the corrosiveness of the deception on which they were built compounded by the involvement of the state.
The Committee countenances that 'intimate, physical sexual relationships' may be permissible undercover, subject to authorisation and the existence of exceptional circumstances. The evidence to the Committee suggested that while such relationships would not currently be the subject of authorisation, they would not necessarily be expressly prohibited. The propriety of such relationships was recently considered in AKJ and others v Commissioner of Police for the Metropolis and others  EWHC 32 (QB), in which a range of claims at common law and under the Human Rights Act arising from the relationships entered into by Kennedy and others were being considered. The High Court decided that the common law claims could be heard in court, but that the Human Rights Act claims should be heard first, by the Investigatory Powers Tribunal. On the issue of the permissibility of sexual relationships undercover, the case may ultimately be most readily remembered for an unfortunate reference by Tugendhat J to James Bond (at ), which, notwithstanding his accompanying reference to psychological harm, risks the appearance of trivialising the experiences of the claimants. The question of the authorisation (under the Regulation of Investigatory Powers Act 2000) of such relationships is considered at  – :
In my judgment conduct which amounts to an interference with a fundamental right not to be subjected to degrading treatment is incapable of being authorised under Part II of RIPA. This is so whether the right in question is the fundamental right recognised by the common law in GG, or the corresponding ECHR Art 3 right. This follows from the two principles of legality (namely the common law principle in Simms and HRA s.3). In the case of the common law principle, RIPA does not contain words sufficiently specific to override the fundamental right. In the case of the Art 3 right it is both for that same reason, and because the Art 3 right is expressed to be unqualified.
On the other hand, conduct which amounted to no more than an interference with the right to privacy is capable of being authorised under Part II of RIPA. This is so whether the privacy right in question is the fundamental right recognised by the common law, or the corresponding right under ECHR Art 8. This follows from the fact that it is the express purpose of RIPA to make provision for the lawful interference with rights of privacy, and from the fact that Art 8 is a qualified right. Further, s.29 specifically provides that the Art 8(2) tests of necessity and proportionality must be satisfied before any authorisation can be given.
Tugendhat J took the view that a sexual relationship founded on deception would not necessarily violate a complainant's right to be free from degrading treatment; it was therefore not possible to conclude that all such relationships were incapable of authorisation under RIPA.
The Committee's understandable discomfort with sexual relationships undercover is part of what informs their suggestion of a more wholesale review of undercover policing. They suggest (at Conclusions / Recommendations 2):
In matters which concern the right of the state to intrude so extensively and intimately into the lives of citizens, we believe that the current legal framework is ambiguous to such an extent that it fails adequately to safeguard the fundamental rights of the individuals affected. We believe that there is a compelling case for a fundamental review of the legislative framework governing undercover policing, including the Regulation of Investigatory Powers Act 2000 … .
On the issue of intimate sexual relationships undercover
The effects of the relationships described to the Committee and discussed in AKJ and others have clearly been devastating. The United Nations Special Rapporteur on the rights to freedom of peaceful assembly and association was highly critical of the Kennedy situation, and refused to go along with the James Bond analogy. He is reported as saying:
This is not a James-Bond-type movie issue. I think it is unacceptable that the state can pay somebody who will use women, and be part of their lives and then just devastate them and leave them. That's unbelievable.
It is not in issue that the State may legitimately interfere with the privacy of citizens under certain conditions. These conditions are well-rehearsed in human rights law: they require that the interference conform with the principle of legality; that it be directed towards a legitimate aim; that it be necessary; and that it be proportionate. However, when the State intrudes into the intimate Iives of citizens to the degree suggested in the evidence to the Committee, a particularly strong justification is called for. In AKJ and before the Committee, it was argued that the lack of explicit reference in RIPA and the associated Code of Practice (relating to Covert Human Intelligence Sources) to sexual relationships indicated that their authorisation would be contrary to the principle of legality. On one level this is an attractive argument – the State should be permitted to interfere with rights only in ways which have been approved explicitly through the relevant process. I wonder, though, whether crafting a substantive rule which would capture the clearly troublesome behaviour in these cases might, like many rules, be more problematic in more marginal situations. If 'intimate, physical sexual relationships' undercover were incapable, without exception, of authorisation, I wonder whether we might end up with some ultimately unedifying, Clintonesque arguments about the meaning of every one of these words. I also think there may be more work to be done in relation to the mischief at which such a prohibition might be directed (Tugendhat J works through this point to some extent in AKJ). To what extent and in what ways is the wrongness of these relationships captured by their 'intimacy'; by their 'physical-ness'; by their 'sexual' nature? And what is it that makes a relationship a relationship?
But, as a general principle, one should not let the difficulties associated with marginal cases close off thought about how to deal with the core issues. If the State needs reminding that it is not acceptable to exploit individuals, to intrude into their personal lives for extended periods and in intimate ways, to negate their personal projects and life plans, and to leave them confused and unable to function in normal human relationships, then a publicly stated rule to that effect is no bad thing. My sense (relatively unexplored at this stage) is that the most realistic type of rule may be more procedural than substantive. That is to say, rather than seek to define exhaustively the types of situation in which a relationship would not be capable of authorisation, it might be more feasible (and a quicker win?) to require, where appropriate, that explicit consideration be given to the issue of 'intimate, physical sexual relationships' undercover, and that specific reasons be given for the (non)-authorisation of relationships which might reasonably be in issue in the context of the operation. There may also, given the magnitude of the intrusion countenanced by this type of undercover activity, be an an argument for enhanced authorisation requirements (such as, but not strictly by analogy to, those which pertain in cases where a vulnerable individual is tasked as a source).
On the need for a broader review of undercover policing
Given the magnitude of the issues arising from the Kennedy and related situations, and the associated outcry, the call for a broader review of undercover policing is not especially surprising. There are reasonable arguments that it might be time for another look at RIPA. Over the years various arguments have been advanced that the oft-sighted criminal justice gremlin of function creep has decoupled it from its original purposes. I take no strong view on that at this stage. Suffice it to say that if we want policing which is intelligent and intelligence-led, then covert activity is part of the package. The challenge is to ensure that accountability is robust, and that policing culture and practices are consistent with the values of liberal democracy that they are intended to support. I think there is a healthy conversation in there, to be conducted in good faith, between all involved. It should not be beyond us to construct covert policing arrangements (and many of the components may well be in place already) which are effective without collapsing into some kind of reworking of The Lives of Others.
If policing research over the years has shown one thing, it is that policing is not governed simply by formal legal rules. Informal practices, norms and cultures also play significant roles. (For a couple of contributions to a significant literature, see here and here). This should not be surprising – one would expect this to be true of any organisation / institution. The decision, for example, either to authorise or to tolerate sexual relationships undercover takes place in the penumbra of rules. If we are to look at RIPA again, let's not do it in isolation from those informal practices, norms and cultures. If there are issues with behaviour and values, the solution is not to be found simply in throwing more law at those issues. The Committee does appear at least to some extent to be alive to this in its reflections on the need for clear lines of accountability in relation to standards.
I'll also lodge my request here for fuller consideration, in any review, of another issue which in my view does merit some kind of clearer working through, either in legislation or the relevant Code of Practice. That is, the extent to which criminality can be the subject of authorisation. I've had a couple of goes over the years at some of the issues associated with this (including a chapter in this book) and I'll pick this up again in another post.