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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Dil & Ors v Commissioner of Police of the Metropolis [2014] EWHC 2184 (QB) (02 July 2014) URL: https://www.bailii.org/ew/cases/EWHC/QB/2014/2184.html Cite as: [2014] EWHC 2184 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
DIL (4) TEB (5) RAB (6) Helen Steel (7) Belinda Harvey (8) |
Claimants |
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- and - |
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COMMISSIONER OF ![]() ![]() |
Defendant |
____________________
Monica Carss-Frisk QC and David Pievsky (instructed by The Solicitor, Metropolitan Police
) for the Defendants
Hearing dates: 5th & 6th June 2014
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Crown Copyright ©
Mr Justice Bean :
"The rationale for NCND applies whether the proceedings are criminal or civil, or indeed whether any proceedings are brought at all. … It covers information relating to an informant's or undercover officer's identity or any operation in which they had been involved. The underlying purpose of the policy was and is to protect the safety of the individuals concerned as well as to uphold the effectiveness of their use of undercover operatives in complex and dangerous operations (both for the present and in the future). It goes without saying that undercover operations are designed to detect and prevent crime. That can involve engaging with very dangerous individuals. The whole point of an undercover operation is that it is essential that the operation is not discovered, and that at the very least, the true identity of the undercover agent is not revealed. ……
The unmasking of an undercover operative would be seen as a significant achievement for any criminal or terrorist organisation which had been infiltrated or subject to investigation. It would also be seen as sending a clear message to future operatives that their safety could not be guaranteed. The risk to undercover operatives does not disappear with time. This is because they may have been involved in numerous operations before or since a specific deployment. Exposing their identity, even long after their deployment has ended, may cause risk not only to them but may cause risk to other individuals associated with the role they performed. This may include other undercover operatives or informants who may be identified once the actions of the undercover operative purports to "self disclose"; the MPS will neither confirm nor deny that the individual concerned is or ever was an undercoverpolice
officer."
Operation Herne
"No evidence has been found of sexual activity ever being explicitly authorised and to date no evidence of sexual activity being utilised as a management supported tactic to aid infiltration has been found…….
Officers have admitted to inappropriate sexual relationships while deployed undercover………………
There is no evidence at this time to suggest sexual relationships between undercover operatives and activists were either officially sanctioned or organised by SDS management. However, documents suggest that there was informal tacit authority regarding sexual relationships and guidance was offered for officers faced with the prospect of a sexual relationship. …..
Irrespective of the more recent introduction of RIPA legislation and the improved training and management of undercover officers, there are and never have been any circumstances where it would be appropriate for such covertly deployed officers to engage in intimate sexual relationships with those they are employed to infiltrate and target. Such an activity can only be seen as an abject failure of the deployment, a gross abuse of their role and their position as apolice
officer and an individual and organisational failing. It is of real concern that a distinct lack of intrusive management by senior leaders within the MPS appears to have facilitated the development and apparent circulation of internal inappropriate advice regarding an undercover
police
officer's engagement in sexual relationships." [emphasis added]
The allegations by the individual claimants
The pleaded Defence
"3. As the claimants know, the defendant's policy is neither to confirm nor deny ("NCND") allegations concerning undercoverpolice
operations.
4. The purpose of the NCND policy is to protect undercover officers and to uphold the effectiveness of operations and the prevention and detection of crime. The NCND policy must be adhered to if it is to have its intended protective effects.
5. The defendant adopts and applies that policy in relation to the factual allegations made by the claimants in these proceedings.
6. It is neither confirmed nor denied that the individuals mentioned in paragraph 1 of the Particulars of Claim werepolice
officers; that (even if they were
police
officers) they served with the Metropolitan
Police
Service; that they were part of the Special Demonstration Squad; that they ever used a false identity; or that they took part in any intimate or sexual relationship with any of the claimants.
7. In any event, it is denied that the defendant is liable for the actions complained of for the further reasons set out below."
"15. As set out above, the Sixth Claimant's allegations about "Mark Cassidy" are neither confirmed nor denied.
16. Save as aforesaid, the Sixth Claimant is required to prove the matters set out at 34-45 of the Particulars of Claim.
17. For the reasons set out below it is denied in any event that the Defendant is liable for the torts of deceit, misfeasance, assault/battery or negligence (or at all)."
"29. The allegation that officers of the Defendant expressly authorised or tacitly acquiesced in the formation of the sexual relationships alleged by the Claimants is neither confirmed nor denied.
30. The Claimants are required to prove that officers of the Defendant (a) acted unlawfully and (b) acted with malice, or knew that the unlawful acts (or any of them) would probably injure the Claimants. The Claimants are required to prove, in particular, that:
30.1 officers foresaw that the Claimants would be damaged by a sexual relationship and/or were recklessly indifferent to the risk of such damage.
30.2 officers knew that it was unlawful for undercover officers to enter into intimate sexual relationships with individuals, and/or were recklessly indifferent as to whether it was unlawful for them to do so."
"In hisdefence
, the defendant must state-
(1) which of the allegations in the particulars of claim he denies;
(a) which allegations he is unable to admit or deny, but which he requires the claimant to prove; and
(b) which allegations he admits. …
(3) A defendant who-
(a) fails to deal with an allegation; but
(b) has set out in hisdefence
the nature of his case in relation to the issue to which that allegation is relevant;
shall be taken to require that allegation to be proved.
…
(5) Subject to paragraphs (3) and (4) a defendant who fails to deal with an allegation shall be taken to admit that allegation."
NCND: the law
"This has been a settled rule for fifty years, and although it may seem hard in a particular case, private mischief must give way to public convenience…"
"If upon the trial of a prisoner the judge should be of opinion that the disclosure of the name of the informant is necessary or right in order to show the prisoners innocence then one public policy is in conflict with another public policy and that which says an innocent man is not to be condemned when his innocence can be proved is the policy that must prevail. But excepting that case, this rule of public policy is not a matter of discretion; it is a rule of law and as such should be applied by the judge at the trial, who should not treat it as a matter of discretion whether he should tell a witness whether to answer or not."
"There [is] a strong, and absent any contrary indication, overwhelming public interest in keeping secret the source of information; but, as the authorities show, there [is] an even stronger public interest in allowing a defendant to put forward a tenable case in its best light."
"To state that a person is an agent would be likely to place him in immediate danger from terrorist organisations. To deny that he is an agent may in some case endanger another person, who may be under suspicion from terrorists. Most significant, once the Government confirms in the case of one person that he is not an agent, a refusal to comment in the case of another person would then give rise to an immediate suspicion that the latter was in fact an agent so possibly placing his life in grave danger.
… If the Government were to deny in all cases that persons named were agents thedenials
would become meaningless and would carry no weight. Moreover, if agents became uneasy about the risk to themselves being increased through the effect of Government statements, their willingness to give information and the supply of intelligence vital to the war against terrorism could be greatly reduced. There is in my judgment substantial force in these propositions and they form powerful reasons to maintaining the strict NCND policy."
"… if apolice
informer wishes personally to sacrifice his own anonymity, he is not precluded from doing so by the automatic application of the principle of public interest immunity at the behest of the relevant
police
authority. This follows, not from waiver of privilege attaching personally to the informer, but from the disappearance of the primary justification for the claim for public interest immunity.
That, of course, is not an end of the matter. It is possible that, notwithstanding the wishes of the informer, there remains a significant public interest, extraneous to him and his safety and not already in the public domain, which would be damaged if he were allowed to disclose his role. However, I am unable to understand why the Court should infer, for example, that disclosure might assist others involved in criminal activities, or revealpolice
methods of investigation on hamper their operations, or indicate the state of their enquiries into any particular crime, or even that the
police
are in possession of information which suggests extreme and urgent danger to the informer if he were to proceed. Considerations such as these might, in an appropriate case, ultimately tip the balance in favour of preserving the informer's anonymity, against his wishes, in the public interest. There is no evidence that any such consideration applies to the present case."
"……The very business of trying this claim would transfer the difficult and delicate business of tracking and catching serious professional criminals… from the specialist and confidential context ofpolice
operations to the glare of the public arena of a court of justice".
"…..In the instant case it is in my judgment inevitable on the face of the statement of claim that a fair trial of the issues there raised will necessary involve the disclosure of information and material by thepolice
, the disclosure of which is not in the public interest."
He then went on to quote from the statement of claim the argument that the factors to be taken into account when determining the amount to be paid to the claimant included "the value to the police
of his information and assistance" and "the financial rewards likely to accrue to criminals from the relevant criminal activity". He took the view that the court's investigation would inevitably cover sensitive areas which should remain confidential.
"The claims of these claimants which I have held cannot be heard in the tribunal are that they have suffered the gravest interference with their fundamental rights recognised by the common law. There is at this stage of the proceedings no evidence before the court as to what facts are to be put in the balance which could lead the court to conclude that these claimants' rights to bring their non-HRA claims before this court are outweighed by the public interest in ensuring that information aboutpolice
operations are not disclosed to the public at large.
The NCND policy is one that is of obvious importance as a means of preserving the confidentiality ofpolice
operations. There may be cases where it is also a means of advancing other interests, such as the protection of the fundamental and Convention rights of informants and
police
officers, including their rights under articles 2, 3 and 8………..But the NCND policy does not give the equivalent of an immunity from claims in tort. It may well be that where it is invoked it will in some cases outweigh a claimant's right to proceed with civil proceedings. Mr Pierce [a witness for the defendants] refers to the importance of not disclosing information which would be damaging to the public interest. But he does not give any specific reasons relevant to the Tuckers claimants as to why their right to proceed with the non-HRA claims in the High Court is outweighed by the public interest or the need to protect the fundamental or Convention rights of other individuals."
"Lurking just below the surface of a case such as this is the governmental policy of "neither confirm nor deny" (NCND), to which reference is made. I do not doubt that there are circumstances in which the courts should respect it. However, it is not a legal principle. Indeed, it is a departure from procedural norms relating to pleading and disclosure. It requires justification similar to the position in relation to public interest immunity (of which it is a form of subset). It is not simply a matter of a governmental party to litigation hoisting the NCND flag and the court automatically saluting it. Where statute does not delineate the boundaries of open justice, it is for the court to do so. In the present case I do not consider that the appellants or the public should be denied all knowledge of the extent to which their factual and/or legal case on collusion and mistreatment was accepted or rejected. Such a totaldenial
offends justice and propriety."
Discussion and conclusion
(1) There is a very strong public interest in protecting the anonymity of informers, and similarly of undercover officers (UCOs), and thus of permitting them and their superiors neither to confirm nor deny their status; but it is for the court to balance the public interest in the NCND policy against any other competing public interests which may be applicable (McNally; Mohamed and CF v SSHD).
(2) There is a well-established exception in a criminal trial where revealing the identity of the informer or the UCO is necessary to avoid a miscarriage of justice (Marks v Beyfus; R v Agar): this does not arise in the present case.
(3) Even where an individual informant or UCO has self-disclosed, the police
(or the Secretary of State) may nevertheless be permitted to rely on NCND in respect of allegations in the case where to admit or deny them might endanger other people, hamper
police
investigations, assist criminals, or reveal
police
operational methods. (Savage; Carnduff).
"To avoid placing any individual in danger, this [NCND] principle is paramount. To comment either way would raise clear inferences in other cases where no comment can be made. This position is essential to ensure that danger and additional risk can be avoided."