Undercover policing and the use of the identities of dead children

An interim report has been published as part of Operation Herne. Herne was established following allegations of misconduct and of criminal behaviour by members of the now defunct undercover Special Demonstration Squad (SDS). SDS was formed by the Special Branch of the Metropolitan Police.

The interim report deals specifically with the issue of the use by undercover officers of the identities of dead children to construct covert identities. Research into the practice is ongoing but it is suggested that it was in use from about 1971 before being phased out from 1994. Although the practice has been in the public domain before now (in a 2002 documentary), it has been the subject of more intense scrutiny as part of the fall out from the exposure of police infiltration of protest groups, and in particular, revelations that undercover officers entered into sexual relationships with members of the target groups (I have posted on those issues here and here.)

It seems that the use of the identities of dead children in the construction of supposedly robust 'legends' (covert identities) was normal practice in SDS, and was embedded in their Tradecraft Manual. The interim report states (at para. 3.6):

It is absolutely clear that the use of identities of deceased children was an established practice that new officers were ‘taught’. It was what was expected of them, and was the means by which they could establish a cover identity before they were deployed.

The Home Affairs Select Committee, in its own interim report on undercover policing, was scathing in its criticism, describing the practice as “ghoulish and disrespectful”, and called for an apology to affected families. It was unclear at the time of the Home Affairs Committee's work how many identities had been used in this way, but the Herne interim report estimates at least 42 out of 106 covert identities constructed by SDS between 1968 and 2008.

I am not hostile in principle either to covert policing or to the idea of covert identities. It is right and necessary that we subject them to rigorous scrutiny, and it is proper that we may feel uncomfortable and conflicted about them (in fact, it is good that we do so, as those feelings stimulate vigilance and a willingness to scrutinise). But they are tolerable parts of the policing settlement in a liberal democracy. That said, this whole episode is, on the most charitable reading, grotesque.

Here are a few interim thoughts on the interim report, mindful that Operation Herne is ongoing:

  1. Claims that the practice of using the identities of dead children to construct plausible covert identities was necessary are at least questionable. It appears to have emerged as a practice, and eventually to have been phased out. We might ask how covert identities were constructed and sustained prior to the practice becoming normalised, and what changed to trigger its normalisation. We can also ask what has changed to make the process no longer necessary. If there were no material changes in circumstances, one could infer that the practice was expedient, rather than necessary. This is significant not only in ethical terms, but also because it may have implications for whether the practice complies with relevant human rights principles of necessity and proportionality.
  2. The practice seems inherently fragile rather than robust. I defer to others on this, but why construct a covert identity on a dead child's birth certificate, when it could be unravelled by the corresponding death certificate? The Herne interim report itself acknowledges the risk of compomise (para. 5.4). (See also Simon McKay's blog.)
  3. The fact that legal advice received by Operation Herne is to the effect that the practice is unlikely to constitute a criminal offence is not a critical indicator of its propriety. The key legal issues here may not be criminal, and on one view, the real issues are ethical. In relation to the law, the use and control of one's personal information is an important facet of privacy, and the presence of that information in the public domain in registers of births and deaths is not of itself a licence for free use of that information by others. In relation to ethics, the interim report – and to be fair, it is just that, an interim report – does not situate the practice in a developed ethical framework. There is a good deal of work on policing which does locate practices within such frameworks and I hope that the Herne final report will in due course draw on this.
  4. The interim report notes (properly) the duty of care owed to undercover officers, which might be compromised by their exposure. However, it does not acknowledge the point made by the Home Affairs Committee that the use of a deceased child's identity may place their family at risk, should the targets of the undercover operation ever seek to trace the individual (officer) who had been making use of it. (The arguments are also referred to in this article in The Independent.)
  5. The current position of not notifying families who have been affected by the practice is grounded in the policy of Neither Confirm[ing] Nor Deny[ing] (NCND) matters relevant to the deployment of undercover assets. However, I wonder first whether a blanket approach to non-notification is compatible with such law as currently subsists in relation to NCND, and second whether a failure to consider applications for notification on their merits would withstand a challenge based on proportionality.
  6. And finally for now, the practice threatens the integrity of important public records (registers of births and deaths). Although this seems relatively minor in the context of some of the other issues, it perhaps reinforces the point that the interests of the State are not coterminous with the interests of citizens, collectively or individually.

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