Lawyer Harriet Wistrich describes the significance of the case of eight women and others suing the Metropolitan Police for deceptive relationships with undercover police.
In the late Autumn of 2010, news began to emerge of an undercover police officer, known as Mark Stone [real name, Mark Kennedy], who had infiltrated environmentalist protest groups to pass on information about their non-violent direct actions, leading to many arrests. It seemed he had lived amongst activists, taking a leading role in many of their actions, forming long term intimate relationships and shorter sexual liaisons with many women, and generally he was seen as a trusted member of the movement. I read the stories initially in The Guardian, fascinated and appalled by this story of police spying on protest groups. Senior police officers spoke on the news, asserting Kennedy was a rogue officer and that such behaviour was a complete aberration.
However, a few months later, Helen Steel, a political activist, well known in particular for having defended herself (together with Dave Morris ), in the historic and long running McLibel case, contacted my colleague, the well-known civil rights lawyer, Gareth Peirce, to introduce the woman who had been referred to in news coverage as ‘the red haired beauty’ that Mark Kennedy had fallen for. She was traumatised by some of the prurient media coverage and the shock of having discovered that the man she was in love with and regarded as a soul mate was in fact a police officer, who had betrayed her, her friends and her family in the most fundamental way. As Gareth listened to her account, she wasn’t expecting to hear that Helen Steel had been similarly betrayed, eighteen years previously, by a police officer with whom she had formed a long term intimate relationship, who had then disappeared without explanation.
I volunteered to explore legal remedies for this gross violation of trust by the police and over the following few months was introduced to another six women who had also had relationships with different men they believed to have been police officers posing as left wing political activists. As the women began to provide their accounts and share their stories, it became clear that the behaviour of the men in the relationships, their back stories and methods of discretely disappearing had marked similarities that suggested systematic methods of infiltration and undermined the myth of the rogue officer.
It was also clear that all the women had been significantly emotionally and psychologically impacted by the discovery of the deceit and personal violation. In particular, their feeling of security in the world they inhabited and the ability to trust others was severely damaged. However, because their experiences were unusual but similar, and because they all came from politically engaged backgrounds, they quickly developed a mutually supportive and collectivist approach to working together on their legal case.
My role as the women’s lawyer was to identify their objectives and find routes through a far from perfect legal system to hold the police accountable for their serious wrong doing. I instructed creative, experienced, feminist legal counsel to assist in this process. We explored options as to how best to hold the police to account – should we follow some sort of complaints process, should we seek a public inquiry, or criminal investigation into wrongdoing? Ultimately, however, we decided that bringing a civil action for damages offered us a route where we would have some control over how the case was brought rather than relying on the police or some form of independent investigator to explore the wrongdoing by the police.
The advantage of a civil claim was that we could control to some extent how the case was to be framed; one of the disadvantages was that we had to prove that the women had suffered damage or loss in the limited terms offered by the legal lexicon. All the women had been harmed by their experiences, they felt they had been violated, they had experienced a fundamental undermining of trust in the state and in relationships and friendships and they had lost time – the time they had invested in the relationships that it turned our were going no-where. However, not all of these losses could be easily framed in law. In order to prove damage, we had to obtain expert evidence either from a psychiatrist or psychologist and the damage suffered needed to be captured into a diagnosis. I decided to instruct psychologists who had a good understanding of trauma and sexual violation, but the women’s experiences didn’t fit neatly into recognised diagnostic criteria, I believe partly because of the very unusual nature of the violation. For some of the women, the process of having to discuss their innermost private and intimate lives with an expert in circumstances where the product of that sharing would be set out in a report to be provided to the police, was alarming. Their intimate lives had already been subject to outrageous intrusion by the police and now they were being asked to provide access to the remaining vestiges of their privacy in a report that would be shared with the police.
One of the key shared objectives of the women was to gain greater understanding of the reasons why they were targeted by the police in this way and to know the extent to which their intimate moments had been shared more widely by their fake lovers. Normally, in civil proceedings after you have set out your case in the ‘Particulars of Claim’ you will receive a Defence which will answer some of the questions you have set out. Following, ‘close of pleadings’, the court will direct further steps to trial which will include the provision of disclosure and exchange of witness statements. However, we never achieved that objective in this case, because the police ran a series of legal arguments to avoid scrutiny at all costs. In the first instance, they sought to ‘strike out’ our claim because it should have been brought not in the High Court, but in the secretive Investigatory Powers Tribunal (IPT). Then they told us that they couldn’t plead to the claim because they had a policy of ‘Neither Confirm Nor Deny’ in matters relating to undercover policing operations.
In order to challenge the approach of the police, my advice was that we needed to build up the pressure of public indignation on behalf of the women and shame the police. In order to do this we required sympathetic media coverage which meant that the women needed to be prepared to tell their stories to the wider public on air and in the print media. We started with a documentary on File on Fourand individual stories in The Guardian and over time the coverage of the stories helped re-frame a public discourse which shone a light on the police. Protests were held outside the court each time there was a hearing and an attempt by the police to close the case down. Gradually the shame of the police approach and scandal of their abuse reached a wider audience.
Having failed in their attempt to close down the case, the next tactic of the police was to cost us out of the litigation, but making ‘Part 36 offers’. If the women refused to accept substantial damages, they became liable to pay the police’s legal costs at the conclusion of the proceedings. Inevitably we were reaching a point where the risk was too great, but whilst money was clearly one signifier of wrong doing, without admissions of liability or disclosure, such an outcome was unsatisfactory. We proposed therefore to enter into a mediation process which involved face to face meetings with the police legal teams and senior officers. The first main mediation took place over three days, strict confidentiality undertakings were signed by all parties not to reveal the ‘without prejudice’ discussions which took place. The ultimate outcome, however, was an agreed fulsome public apology read over broadcast air, by Assistant Commissioner Martin Hewitt and payments of substantial damages to each of the claimants.
The result indeed was a victory in many senses, and we organised a press conference to ensure the outcome was widely disseminated. However, what the women failed to obtain was the provision of any disclosure from the police that might provide them with answers to the many questions still outstanding as why and how they were targeted. However, by this time the then Home Secretary, Theresa May, had announced , in response to the public exposure of the scandal of these officers’ behaviour, that there would be a public inquiry into undercover policing. That pubic inquiry officially commenced in the summer of 2015, yet four years later little progress had been made and each of the women still await their disclosure packs and the opportunity to hear actual evidence of the policing operations.
In the meantime, other legal avenues have been explored, including a case before the IPT by one of the eight, Kate Wilson and a complaint lodged with the Committee for the Elimination of discrimination against Women (CEDAW), a UN treaty convention. A case has been brought to challenge the Crown Prosecution decision not to prosecute any officers for the sexual misconduct, whilst one of the officers has been found guilty of gross professional misconduct by way of a disciplinary hearing. Many more women have come forward after discovering that they too were in relationships with undercover police officers, and perhaps one day the public inquiry will finally hold public hearings into this scandalous episode of British policing.