«HC 291 July 2015 Return to an Address of the Honourable the House of Commons dated 16 July 2015 for the REVIEW OF POSSIBLE MISCARRIAGES OF JUSTICE ...»
REVIEW OF POSSIBLE
MISCARRIAGES OF JUSTICE
Impact of Undisclosed Undercover Police
Activity on the Safety of Convictions
Report to the Attorney General
Authors: Mark Ellison QC & Alison Morgan
HC 291 July 2015
Return to an Address of the Honourable the House of Commons
dated 16 July 2015
REVIEW OF POSSIBLE MISCARRIAGES OF JUSTICE
Impact of Undisclosed Undercover Police Activity on the Safety of Convictions Report to the Attorney General Authors: Mark Ellison QC & Alison Morgan Ordered by the House of Commons to be printed on 16 July 2015 HC 291 © Crown copyright 2015 This publication is licensed under the terms of the Open Government Licence v3.0 except where otherwise stated.
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1. Terms of Reference 5
2. Findings in the Stephen Lawrence Independent Review 7
3. Progress since March 2014 11
4. The history and culture surrounding SDS and NPOIU revelation of undercover activity to investigators and prosecutors 13 – The SDS – The NPOIU
5. A Fair Trial 19 – The prosecutor’s duty of disclosure in a criminal trial – Agent provocateur and Entrapment issues – The impact of a policy to withhold material of potential relevance to a prosecutor’s duty of disclosure in a criminal trial – Recent appellate decisions relating to undercover police activity
6. Surviving Records 31 – SDS – NPOIU – MPS
1. Terms of Reference On Thursday 26 June 2014, the Home Secretary made the following statement, explaining the Terms
of Reference of this Review:
“When I made my statement to the House on 6 March 2014, announcing the findings of the
Stephen Lawrence Independent Review by Mark Ellison QC, I said that:
“In identifying the possibility that SDS [‘Special Demonstration Squad’] secrecy may have caused miscarriages of justice, Mark Ellison recommends a further review to identify the specific cases affected. I have accepted that recommendation and Mark Ellison will lead the work, working with the CPS and reporting to the Attorney-General. That will mean that proper consideration can be given to those cases and to any implications that may arise. In doing that work, Mark Ellison and the CPS will be provided with whatever access they judge necessary to relevant documentary evidence.” [Hansard, 6 March 2014, Column 1063] Mr. Ellison, the Attorney General and I have now agreed his Terms of Reference. Mr. Ellison will continue to be supported by Alison Morgan, who was Mr. Ellison’s junior counsel during the Stephen Lawrence Independent Review.
The Terms of Reference are:
‘Mark Ellison QC will co-ordinate a multi-agency Review, reporting to the Attorney General, to assess the possible impact upon the safety of convictions in England and Wales where relevant undercover police activity was not properly revealed to the prosecutor and considered at the time of trial. Nothing in these terms of reference affects the statutory responsibilities of the various agencies and office-holders working with the Review.
The Review will initially focus on the undercover police activity of the MPS’s Special Demonstration Squad and the National Public Order Intelligence Unit (NPOIU) which, whilst not an MPS resource, worked to similar objectives. The Review will then assess whether its scope may need to be broadened to cover other undercover police activity.
The Review will seek to ensure, by working co-operatively with the Home Office, Operation Herne (on behalf of the Metropolitan Police Service (MPS)), other police forces, CPS, Criminal Cases Review Commission (CCRC) and any other relevant agencies, that the following tasks are
1. Establish the relevant document retention and destruction policies adopted within the relevant organisations;
2. Identify the extent of surviving police, prosecution and court case files;
3. Establish the nature of undercover policing undertaken and the potential for undercover police activity to have been relevant to a prosecution but unrevealed to the appropriate authority;
4. Identify, using both available records and other reasonable means, any convictions where it appears there was relevant undisclosed and unrevealed undercover police activity capable of impacting adversely on the safety of the conviction;
5. Ensure that any cases falling in 4 above, where it appears the safety of a conviction may have been adversely affected, are referred to the appropriate authority for evaluation and appropriate action;
6. Ensure that any cases falling in 4 above are reviewed to establish the rationale for non revelation and to establish the extent to which the MPS and the Home Office were aware and identify the action taken as a result; and
7. Agree a protocol with the MPS (and all other police forces subsequently identified), the CPS, the CCRC and any other relevant agencies regarding the tasks that each will undertake; the availability and handling of material; and other issues as necessary.
Mark Ellison QC will aim to report the Review’s findings in writing on the above to the Attorney-General by 31st March 2015.’ The Review has already begun its preliminary work. Where the Review identifies a potential miscarriage of justice, the case will be referred to the Criminal Cases Review Commission for its consideration of whether the case should be referred to the appellate courts. At the conclusion of the process, the Review will produce a report to the Attorney General, which he will publish.
That report will not include the details of the individuals whose cases have been examined, as to do so could prejudice any subsequent appeal proceedings or retrials.
I am grateful to the Director of Public Prosecutions, the Metropolitan Police Commissioner and to Chief Constable Creedon for the support they have offered to the review. I know that the Metropolitan Police Service will cooperate fully with the Review team.”
– an examination of the role of undercover policing in the Stephen Lawrence case;
– whether such information had been withheld from the Stephen Lawrence Inquiry; and
We set out our findings on this matter in Chapter 6 of the main Report [pp180-274], and in section 4 of the Summary of Findings accompanying the Report [pp 20-34].
(i) An acknowledgement that for decades the Special Demonstration Squad [‘SDS’] provided effective warning to enable the parts of the MPS dealing with the policing of public disorder to plan and allocate appropriate resources to meet the risks. It also provided valuable intelligence to the Security Service. There were many examples of SDS undercover officers running great personal risks in order to gain very valuable intelligence and, with a few exceptions, the vast majority of the officers that undertook this challenging and difficult work, not only did so to the best of their ability, but also bear no responsibility for the problems created by senior MPS management by allowing the Squad to operate as if it was exempt from the normal duties of disclosure in criminal cases.
(ii) Accordingly there was clear public benefit accruing from the Squad’s undercover work, but the nature of it also created a level of risk for the MPS on a number of fronts. To maintain their cover, an undercover officer had to ‘live the life’ of the activist they were pretending to be, over an extended period of years. They had to adapt and cope with what their activist group decided to do, which often involved criminal activity. It was inevitable that undercover officers would be likely to face difficult choices as to what criminality they did or did not discuss, acquiesce in, or participate in. They sometimes got arrested with other activists, and while ‘maintaining their cover’ had to handle how they interacted with police investigators, the courts, as well as their fellow activists and sometimes their shared lawyers. They had to cope with rising in influence and authority within an activist group (generally regarded as beneficial to the quality of intelligence they could obtain), but also resulting in them being seen as influential and someone to look up to by activists. They also had to manage the proper limitations surrounding personal relationships with activists.
The potential for “collateral damage” to result from their work was obvious. This could be
– the deceitful human interaction that the work entailed;
– the commission of, or connivance with crimes by officers sworn to uphold the law;
But of central significance to this Review, is the fact that both SDS and senior MPS managers should have recognised that having serving police officers working undercover alongside activists, who by the nature of their activities were prone to get arrested and prosecuted, would inevitably create a situation where the undercover officer’s behaviour and observations might generate material of potential relevance to the issues raised in those prosecutions. And if it did, the MPS was obliged to make this known to the prosecutors under the disclosure regime integral to a fair trial.
(iii) We identified the wider concerns extending beyond the Stephen Lawrence case in a
postscript to our section on undercover policing [Summary of Findings 4.6 pp 33-34]:
“In essence, the wider potential problems that appear to us to be likely to exist all flow from the extraordinary level of secrecy observed as to any disclosure that might carry the risk of exposing that an undercover officer was, or had previously been, deployed.
Whilst that level of secrecy was largely enforced within the processes and procedures adopted by the SDS itself, the wider MPS must take responsibility for allowing a situation to develop over the years whereby the SDS operated as if it was exempt from the developing duty of proper disclosure required of the MPS in legal proceedings, and particularly in criminal prosecutions...
The SDS had, over many years, placed undercover officers inside a wide range of activist groups…A long-term undercover officer deployed into such a group had, necessarily, to play the convincing role of a genuine activist.
When the group concerned got involved in planning or committing potentially illegal activity, the undercover officer had to maintain cover. The concept of an undercover officer getting involved in criminal activity in one way or another was, it appears, approached ‘flexibly’ by some SDS officers.
The potential for an undercover officer to have been viewed by another group member as having approved, encouraged or participated in criminal activity is inevitable.
The undercover officer may well have ended up being arrested. The SDS records show that sometimes that was dealt with by the officer going through the investigation and court process in their undercover name. This inevitably entailed deception of the arresting officers and courts, and also the legal advisers who represented a number of activists arrested at the same time, all of which had to be dealt with in a manner consistent with their undercover role.
It is also clear from the material we have seen that sometimes an undercover officer who had been present at a riot or other disorder where arrests had been made and criminal proceedings had been brought knew that aspects of the prosecution case being advanced through police witnesses was false.
In short, it is inevitable that the interaction between an undercover officer and members of an activist group, taken together with the detailed records of intelligence reported back
by them into the MPS system, yielded an obvious potential source of material relevant to criminal proceedings brought. This relevance might be because the undercover officer had encouraged the alleged criminal activity of others, or because the records were capable of supporting a fact relied upon by a defendant or undermining a fact relied upon by the prosecution.
… We believe that consideration should be given to reviewing criminal prosecutions falling into the categories which we have described above against available SDS records. The purpose of any such review would be to assess if material non-disclosure may have occurred in any case in which there has been a conviction, and to enable appropriate remedial action to be taken.” Inevitably, given our Terms of Reference, this Review focuses on the way in which the MPS allowed the SDS to function for the duration of its existence, and the extent to which this gives rise to concerns as to possible miscarriages of justice having occurred.
By focusing the Review in this way, we do not mean to underplay the significance and value that undercover policing can bring to law enforcement. We acknowledge that SDS officers on occassions used their influence in a group to either prevent the commission of crime or reduce the magnitude of it and its impact on potential victims. We also acknowledge that the regulation of undercover policing has improved significantly.