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The Investigatory Powers Tribunal has today found that the Commissioner of Police of the Metropolis and National Police Chiefs’ Council, when using undercover police officers to spy on protest groups during the late 1990s and 2000s, violated the Claimant’s rights under Articles 3, 8, 10, 11 and 14 of the European Convention on Human Rights (ECHR). The Tribunal described these breaches as a “formidable list of Convention violations” and noted “disturbing and lamentable failings at the most fundamental levels”.

The claim was brought by Kate Wilson, in 2011. Ms Wilson had been deceived into a sexual relationship by an undercover officer, Mark Kennedy (whom she knew as Mark Stone), between November 2003 and February 2005; in addition, her political activities and personal life had been subject to covert surveillance by Kennedy and at least five other undercover officers over a period of more than ten years.

During proceedings, the police conceded that Kennedy’s conduct amounted to degrading treatment of the Claimant contrary to Article 3 ECHR, and also conceded breaches of the Claimant’s right to respect for private and family life under Article 8 ECHR and her right to freedom of expression under Article 10 ECHR. But they disputed the gravity and extent of the infringement of those rights – denying that more senior officers knew of or acquiesced in the relationship, and maintaining that their training, supervision and safeguarding was generally adequate. The police also maintained that the surveillance of the Claimant by Kennedy and other undercover officers was, apart from the sexual relationship and disproportionate intrusion into her private life, necessary in a democratic society, and they denied any breach of the Claimant’s right to freedom of assembly under Article 11 ECHR and freedom from discrimination against women under Article 14 ECHR. 

The Tribunal accepted almost all the Claimant’s arguments. It found that (i) Kennedy’s principal cover officer knew about his sexual relationship with the Claimant, Kennedy’s deployment manager also knew, or turned a blind eye, and other senior officers either knew or chose not to know, with the National Public Order Intelligence Unit generally adopting something akin to a “don’t ask don’t tell” approach to such relationships; (ii) the training of undercover officers in relation to sexual relationships was grossly inadequate; (iii) there was a widespread failure of supervision of Kennedy in his undercover role; (iv) the authorisations for the undercover operations failed to distinguish between domestic extremism potentially involving serious criminality and public order issues and therefore did not meet a pressing social need and were not necessary in a democratic society; (v) no proper consideration was given or structures put in place to limit collateral intrusion into the private lives of persons not named as subjects of surveillance; and (vi) the deployment of Kennedy within the groups he spied on was akin to a “fishing expedition”

The Tribunal also found that the police had breached Articles 10, 11 and 14 ECHR. In respect of Articles 10 and 11, it concluded that the Claimant’s right to hold political opinions and exchange opinions and ideas was breached by the monitoring and surveillance of her, and in addition that Kennedy directly influenced the Claimant’s political opinions and movements. As for Article 14, it found that the failures of the police had a disproportionate impact on women in terms of the number of women affected and the greater impact on their lives through the risk of pregnancy or interference with their child-bearing years, and that the police had very little concern about the impact of the highly intrusive surveillance by Kennedy and others, on women in particular. The Tribunal also made important observations regarding the police’s conduct of the case and its failure to produce factual evidence on matters exclusively within their knowledge.

There will now be a hearing to consider the remedies sought by the Claimant for these breaches.

The judgment and the Tribunal’s press summary are available here. A detailed summary of the judgment is available here.

Charlotte Kilroy QC, Isabel Buchanan and Tom Lowenthal acted for the Claimant, instructed by Matthew Bruce of Freshfields.

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