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HC 837Written evidence submitted by Birnberg Peirce & Partners and Tuckers Solicitors [UP 01]

Inconsistent Statements on the Policy in Respect of Sexual Conduct by Undercover Officers

Jon Murphy, the ACPO lead [?], commented in respect of sexual relationships, “It is never acceptable for an undercover officer to behave in that way… It is grossly unprofessional. It is a diversion from what they are there to do. It is morally wrong because people have been put there to do a particular task and people have got trust in them. It is never acceptable under any circumstances ... for them to engage in sex with any subject they come into contact with.” [reported in Guardian—19 January 2011]

In answer to a written question submitted to the Commissioner by GLA assembly member, Jenny Jones in June 2011

Q126: What guidance is issued to undercover officers about avoiding becoming an agent provocateur, and about the forming of sexual relations?

Answer: ….No authority is ever granted for an undercover officer to engage in a sexual relationship whilst deployed on an authorised police operation.

In response to a Freedom of Information Act request made by Rob Evans of the Guardian newspaper to Metropolitan police

Under the act, I would like to know:

(1) when was the first time that a directive or guidance was issued by the National Public Order Intelligence Unit to its staff making it clear that undercover police officers employed by the unit were prohibited from having sexual relations with the targets they were carrying on surveillance on;

(2) how many directives or guidance have been issued since then, and on what date was each of these directives or guidance issued.

Under the act, I would also like to request :

(1) complete copies of each of directives or guidance;

(2) complete copies of any policy or discussion papers held by the National Public Order Intelligence Unit which discusses this subject since January 1 2011.

Response [16 November 2011]

“All Police Officers when joining the Metropolitan Police Service are provided with a copy of the Police Conduct and Discipline code and must adhere to the code at all times. There is no other information held that is relevant to your request.”

From Her Majesty’s Inspectorate of Constabulary HMIC report [February 2012]

“The sample of NPOIU records examined by HMIC should have contained much more detail on how the risks of intrusion were assessed and managed. For example, Mark Kennedy, by his own admission, had intimate relationships with a number of people while undercover, and in doing so encroached very significantly into their lives. NPOIU documentation did not provide assurance that such risks of intrusion were being systematically considered and well managed across the organisation”.

HMIC found that Mark Kennedy operated outside the Code of Conduct for Undercover Officers (see p.16).

Nick Herbert, Minister for policing, in adjournment debate with Caroline Lucas:

“The RIPA statutory guidance does not explicitly cover the matter of sexual relationships, but it does make it clear that close management and control should be exercised by the undercover officer’s management team. That will be a relevant factor. The absence of such management gave rise to concern in the Kennedy case.”

“I am not persuaded that it would be appropriate to issue specific statutory guidance under RIPA about sexual relationships. What matters is that there is a general structure and system of proper oversight and control, rather than specific directions on behaviour that may or may not be permitted. Moreover, to ban such actions would provide a ready-made test for the targeted criminal group to find out whether an undercover officer was deployed among them. Specifically forbidding the action would put the issue in the public domain and such groups would know that it could be tested.” [13 June 2012]

Written question from Caroline Lucas MP to Damian Green, (current) Minister for policing: “To ask the Secretary of State for the Home Department whether her Department has issued any guidance to chief constables on the circumstances in which authorisation should be given to an undercover police officer to (a) start and (b) continue a sexual relationship with someone who is the target of undercover surveillance; whether any such guidance includes making provision for appropriate supervisory arrangements to ensure that officers do not start or continue relationships without authorisation; and if she will make a statement. [121107]

Damian Green: “No. The Regulation of Investigatory Powers Act 2000 and its associated statutory code of practice make it clear that deployment of undercover police officers as covert human intelligence sources is required to be necessary and proportionate and to be closely monitored and managed by the force concerned.

The personal conduct of any police officer is a matter for the force concerned”

13 September 2012 : Column 360W

At the Police and Crime Committee meeting on 27 September 2012, Deputy Commissioner, Craig Mackay answered questions on this area:

JJ:…would a serving police officer be given authorisation to start a sexual relationship with an activist while using a false identity

DC: not ordinarily, no

JJ: What do you mean “not ordinarily”

DC: Well you can’t write a rule for every particular scenario. They give a preauthorization for deployment but a pre authorisation for deployment would cover conduct and code it would not get down into the level of detail of saying you can or can’t [pause]

JJ; So would that officer have to report back to his supervisor on that relationship if there was pre-authorisation.

DC: Yes if there was a relationship they’d have to report back.

….I did say absolutely that pre-authorisation, we do not do pre-authorisation about relationships

JJ: You said not ordinarily

DC: if people are..eh..involved or become involved in a relationship it has to come back to the supervisor straight away.

LD: that begs the question, what happens what the supervisor does. What advice does the supervisor give in those circumstances to the officer—one to protect the employee as well as the other party involved who may well be a suspect but more likely might not be a suspect because the relationship is there so what advice is the supervisor meant to have given to the operative

DC: It’s not covered in detail in the guidance I will write to you with the advice. I am not a supervising officer so…

…. Our expectation is they will not engage in long term relationships and get involved in the sort of things that you’re describing and are well documented in terms of those sorts of things but if you’re saying to me is there a scenario where it could never happen effectively we end up with, I’ll make it up, that undercover officers are all subjected to a sexual test, um, it’s very very hard to sit and write those rules sitting here. If you said that “I’m a member of a group and I decide to test whether X or Y is an undercover officer by em some sort of sexual test”, that’s an incredibly difficult thing to sit and write at the centre. Let me be clear—those long term relationships that you’re describing are not where undercover officers should be.

JJ: No I know they shouldn’t be there. It’s really what the Met… Are you saying now it could not happen?

DC: Providing the supervisor works..it couldn’t happen. But that absolutely relies on individual supervision. That’s why we’ve put all the work in…

JJ: But we’ve established that supervision is a little bit dodgy haven’t we. Generally.

DC: No, em,

JJ: It can be.

DC: It can be. But undercover officers and the work and the focus that’s gone on on the back of both the HMIC report and the work we’ve done has brought a load of those things into much more line around how it’s managed, how it works and the individual role of that supervisor. Because for an undercover officer, the supervisor is the crucial link….

JJ: I just feel that what I would like to hear from you is a blanket assurance that permission, preauthorization for a sexual relationship with an activist is never given. I really would like some sort of, because I just can’t see that the HMIC would think very much of that scenario either

DCL That’s why I’m saying to you I can’t see that scenario happening now. I cannot see that scenario happening now. But what I can’t do to you is give you a written guarantee for that so let me come back to you on that in the new code and if it’s as specific as that then I’ll let you know.

File on Four programme broadcast on 2 October 2012

Question: What is the Met’s position on relationships undercover?

DEPUTY ASSISTANT COMMISSIONER PATRICIA GALLAN: Well, I think first of all there is the law and then there is also what is morally right. The law is silent on the matter. If you ask me about what morally is right, then I think it is one of those things that we cannot legislate for every single circumstance. If a circumstance happens where that happens with an officer, I would expect them to immediately report that to a supervisor. Each case needs to be looked at on its merits, but it is something I would question severely about why it has happened.

Damian Green, letter to Caroline Lucas, November 2012

“The Government shares the view expressed by a number of senior police officers that it is not appropriate for officers to enter into sexual relationships with members of the public they come into contact with in the course of their duties and that this is not authorised activity.”

House of Commons debate, 26 November 2012

Damian Green: The requirements for supervising and managing the deployment of undercover officers are set out in the Regulation of Investigatory Powers Act 2000 and its related statutory code of practice. In addition, the Association of Chief Police Officers produces its own guidance on managing undercover deployments. Senior police officers have made clear in recent months that it is not acceptable for the police to engage in sexual activity with members of the public, and that this is not authorised conduct.

Home Affairs Select Committee, 28 November 2012

Q354 Mr Winnick: If an undercover agent engages in sexual activity in the group to which he or she has been sent to do police work, would that be considered appropriate?

Bernard Hogan-Howe: It certainly should not be part of the strategy to do that. The fact that it may sometimes happen, I think, could almost be inevitable. Not that I would encourage it, obviously, but when you are deploying an officer to live a lifestyle and they are going to get close to a target or a group of targets, it is not impossible to imagine that human relationships develop in that way. We put various things in place to make sure that, if it is going to happen or there is a likelihood of it happening, we spot it early and get the UC out before it happens, but it is not impossible given human relationships.

Birnberg Peirce & Partners and Tuckers Solicitors

January 2013

Prepared 28th February 2013