In a landmark judgment, a tribunal has found “disturbing and lamentable failings” and numerous human rights violations by the police in a case brought by Kate Wilson, an activist deceived into a sexual relationship with an undercover police officer. The judgment helps to shift the veil of secrecy surrounding the ‘Spycops scandal’ and is a damning condemnation of the police’s surveillance practices as being discriminatory against women. Its publication – on the same day that the police officer who murdered Sarah Everard was sentenced to a whole of life order – comes as concerns about institutional misogyny and the police’s ability to protect women and girls are at the forefront of the public consciousness.
What was the case about?
The Claimant, Kate Wilson, was involved in a number of campaigning groups and protest movements particularly on environmental issues. In October 2003, she met a man whom she believed to be a fellow activist called Mark Stone. They started an intimate and sexual relationship which ended in February 2005 when she moved to Spain. They remained close friends until October 2010 when it was revealed that Mark Stone was in fact an undercover police officer called Mark Kennedy, who was married with children. While undercover, Kennedy had sexual relationships with at least 11 women in order to gain access to and surveil activist groups. And he was not alone – multiple other undercover police officers did the same.
What is the Investigatory Powers Tribunal and how did the case get there?
It has taken Wilson ten years and protracted litigation to reach this point. In October 2011, Wilson issued a civil claim against the Commissioner of Police of the Metropolis and the National Police Chiefs’ Council (‘the Respondents’) in the High Court for damages in tort and under the Human Rights Act 1998 (HRA). It was later held that the Investigatory Powers Tribunal (IPT) was the appropriate forum for Wilson’s HRA claims, effectively splitting her claims into two parts. Her common law claim proceeded first and was settled following mediation. The settlement included an apology from the police. These are rare in civil cases, highlighting the already exceptional nature of the case.
In 2017, Wilson’s HRA claims proceeded before the IPT, an independent Tribunal established under the Regulation of Investigatory Powers Act 2000, which hears complaints of unlawful intrusion by public bodies. The IPT’s role is primarily investigatory although it does have the power to adjudicate. The nature of the complaints that come before it mean that the IPT’s processes and reasoning can be quite opaque. Subject to some rules, it is generally able to determine its own procedure and it does not have a history of finding favourably for claimants. Out of 1,002 cases decided between 2012 and 2016, the IPT found in favour of claimants only 23 times.
It is against this backdrop of poor odds for claimants and obscure procedures that Wilson’s claim was heard by the IPT panel over seven days in April 2021, one of which was ‘closed’ (meaning that Wilson was not able to attend).
What were the issues before the court?
Wilson’s case was that her treatment amounted to breaches of her rights under Articles 3 (freedom from torture and inhuman or degrading treatment), 8 (respect for private and family life), 10 (freedom of expression), and 11 (freedom of assembly) of the European Convention on Human Rights. She also argued that the breaches under Articles 3 and 8 were discriminatory against women and so breached Article 14 (protection from discrimination in respect of human rights). Wilson also argued that the relevant legal provisions at the time concerning undercover police activities were unlawful under Article 8, rendering any action authorised under them also unlawful.
Before the hearing, the Respondents had actually admitted to numerous violations including that Kennedy’s behaviour (for which the Commissioner of Police is vicariously liable) in deceiving Wilson into a long-term sexual relationship amounted to inhuman and degrading treatment breaching Article 3. This was aggravated by the failure of Kennedy’s cover officer to provide adequate supervision. The Respondents admitted that the sexual relationship violated Wilson’s right to private life under Article 8, and that by using it to gather intelligence, Kennedy had breached her right to freedom of expression under Article 10.
These admissions are very significant – the IPT described the Article 3 admission as almost if not entirely unprecedented. However, the Respondents still denied wider infringements of Articles 3, 8 and 10 and any violations of Articles 11 and 14. Their approach seems to have been to paint Kennedy as one ‘bad apple’ and accept liability for this, while denying systemic issues which would have wider implications for them.
The issues to be decided by the IPT were therefore:
- The nature, extent and severity of the infringements of Articles 3, 8 and 10; and
- Whether there had been violations of Articles 11 and 14.
What evidence was presented?
Wilson’s evidence consisted of written witness statements provided by her and other witnesses in support of her claim. Her evidence detailed the closeness of her relationship with Kennedy and the impact of the discovery that he was an undercover police officer on her which made her feel fear, paranoia and grief. Unusually, the Respondents opted not to cross-examine and challenge any of the Claimant’s witnesses on their testimony. The IPT therefore proceeded on the basis that the Claimant’s evidence was accepted by the Respondents.
The Respondents were criticised by the IPT for failing to provide any statements from witnesses who had direct knowledge of or responsibility for the events in question. They did however disclose numerous contemporaneous documents including authorisations, intelligence reports and cover logs. Kennedy’s first authorisation from 2003 shows that his deployment was aimed at information-gathering rather than collecting evidence for prosecutions. To achieve this, he was to maintain personal relationships with activists. He was not authorised to have sexual relationships while deployed.
Kennedy’s cover officer ‘EN-31’ maintained the cover logs recording his movements and interactions. The IPT found that the logs demonstrate an extremely close personal relationship between Kennedy and Wilson, who features frequently in them. They include records of where Kennedy slept (including at the Claimant’s house) and provide a shocking insight into how intimate details of Wilson’s life were recorded by the police – including times when Kennedy helped her brother transport furniture from IKEA or her mother with a job that required going up a ladder. A discussion is even recorded between Kennedy and EN-31 about whether attending Wilson’s family ‘drinks and nibbles’ party was a good idea.
What did the court decide?
The IPT found a “formidable list” of violations by the Respondents. Beyond the breaches already admitted, the panel found mostly in favour of the Claimant as follows:
Articles 3 and 8:
- The Respondents had positive obligations to protect potential victims from breaches of Articles 3 and 8, which they violated by failing to take adequate steps to reduce the risk of undercover officers including Kennedy from engaging in sexual relationships while deployed. This was made more egregious by the fact that the very reason Wilson had been targeted for surveillance was because she was exercising her rights of freedom of expression and assembly.
- The failure in supervision extended beyond EN-31 to more senior officers. Despite the evidence that multiple undercover officers were having sexual relationships while deployed, no disciplinary action was taken, no officers probed Kennedy about his relationships, and no steps were taken to mitigate the risk of him having sexual relationships. He was not given a fictitious romantic attachment as part of his cover and was instead presented as single.
- The Respondents failed to protect against collateral intrusion by considering the issue or putting any structures in place to prevent it. The scope of authorisations was so broad that many people who were not named subjects ended up being caught up in the information-gathering.
- Kennedy’s deployment and the consequential interference with Wilson’s Article 8 rights based on the need for intelligence on the protest movement and/or Wilson’s activities was not necessary in a democratic society or proportionate.
Articles 10 and 11:
- The right to freedom of expression includes the right to do so without interference by the state. Wilson became the subject of surveillance because of her opinions and information about her political activities was gathered for seven years.
- Kennedy used his close relationship with Wilson to directly influence her political opinions and movements. He convinced her to attend or not attend particular actions and even leant her money to attend an event in Hamburg.
- These interferences with Wilson’s right to freedom of expression and assembly could not be justified and breached Articles 10 and 11.
- The Respondents’ lack of concern about the impact of the intrusive surveillance carried out by Kennedy and other officers on women and failure to take steps to protect them from breaches of their human rights amounted to discrimination and breached Article 14.
- Women were more likely to be impacted than men both based on statistics – considerably more undercover officers were men and a significant number of them had sexual relationships with women – and because of the risk that they might become pregnant through the sexual relationships.
The IPT did not accept the Claimant’s arguments on some points. They found that the statutory regime governing the use of undercover officers was necessary in a democratic society and was therefore lawful. They also found that there was no evidence that sexual relationships were used as a deliberate tactic in undercover operations but noted that in their view the position was instead one of ‘don’t ask don’t tell’.
The IPT will hold a separate hearing to decide which remedies Wilson is entitled to. This may include monetary compensation although this is not guaranteed in HRA claims.
Why is the case so significant?
At the start of the case, very little was known publicly about the police’s undercover operations. Wilson brought the case to understand what had happened to her and others and ensure that it does not happen again. The police have sought to give away as little as possible about their practices and in effect do damage control. The panel remarked that without Wilson’s tenacity, much of what has been revealed would have remained secret. Her efforts are especially significant given that at times – including after the disclosure of thousands of documents by the police – Wilson was unrepresented and up against a well-resourced state body.
Pursuing a case to trial is always risky and arduous but in Wilson’s case it has paid off. The IPT panel found overwhelmingly in her favour and publicly criticised the police’s procedures and litigation strategy. The police’s arguments that Kennedy was simply a renegade officer – a narrative used consistently in other examples of police misconduct – have been sharply rejected by an independent court. Some of the issues raised in this case will likely be considered during the ongoing Undercover Policing Inquiry, which 27 women who unwittingly engaged in sexual relationships with undercover officers are participating in. The IPT’s findings will also likely impact the ongoing civil claims of other women affected.
The timing of the case is also significant. The arrest and sentencing of Wayne Couzens has spotlighted conversations about institutional misogyny and failures by the police to hold officers to account for misconduct. The trial fell just over a month after the police’s heavy-handed arrests at the vigil for Everard, amid increasing concerns about the stifling of political protest including through the new Police, Crime, Sentencing and Courts Bill. Wilson’s case is a step in the right direction in holding the state accountable for abuses and recognising failures and discrimination on an institutional level.
Our Civil Liberties & Human Rights solicitors have been using the power of the law to fight for what’s right for over four decades. We have an exceptional track record of holding police to account. To speak to our solicitors, please call 0808 252 5231 today or request a call back online.