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Undercover Policing

Volume 546: debated on Wednesday 13 June 2012

It is a pleasure to hold this debate under your chairmanship, Mr Davies. I am very grateful for the opportunity to raise the issue of the rules governing undercover police infiltrators and informers.

I am sure the House will agree that when it comes to the deployment of undercover police officers, transparency and accountability are of the utmost importance. In recent months, however, a number of cases have come to light that seem to expose serious abuses of any guidelines that we might reasonably assume inform what police officers working undercover can and cannot do. The cases raise important questions about whether such guidelines are ever enforced, whether individuals who breach them are properly held to account, and the extent to which infiltration of campaign groups is a legitimate, or even effective, tactic. Also, I have details of new allegations relating to the behaviour of one undercover officer that I believe require immediate investigation and raise questions about the convictions of two individuals.

Since at least the 1968 protests against the Vietnam war, police chiefs, backed by successive Governments, have used the tactic of infiltration to secure more reliable intelligence about political demonstrations than could be provided by informants. Undercover police officers pose as political activists over several years, to gather reliable intelligence and perhaps disrupt campaigners’ activities. In the early days, such officers were part of a super-secret unit within special branch, called the special demonstration squad; more recently they have been under a second unit, the national public order intelligence unit.

Up to nine undercover officers have been unmasked following the exposure of Mark Kennedy in late 2010. I will say more about his case later, but the officers include Bob Lambert, know by the alias Bob Robinson. That officer pretended to be a committed environmental and animal rights campaigner between 1984 and 1988. By the summer of 1987, he had successfully infiltrated the Animal Liberation Front, a group that operated through a tightly organised underground network of small cells of activists, making it difficult to penetrate. In October 2011, after he was exposed as an undercover officer, Bob Lambert admitted:

“In the 1980s I was deployed as an undercover Met special branch officer to identify and prosecute members of Animal Liberation Front who were then engaged in incendiary device and explosive device campaigns against targets in the vivisection, meat and fur trades.”

Lambert has also admitted that part of his mission was to identify and prosecute specific ALF activists:

“I succeeded in my task and that success included the arrest and imprisonment of Geoff Sheppard and Andrew Clarke.”

The men Lambert referred to were ALF activists who were found guilty of planting incendiary devices in two Debenhams stores. Allegations about exactly what kind of role Lambert might have played in their convictions have come to light only recently.

In July 1987, three branches of Debenhams, in Luton, Romford and Harrow, were targeted by the ALF in co-ordinated, simultaneous incendiary attacks, because the shops sold fur products. Sheppard and Clarke were tried and found guilty, but the culprit who planted the incendiary device in the Harrow store was never caught. Bob Lambert’s exposure as an undercover police officer has prompted Geoff Sheppard to speak out about the Harrow attack. He alleges that Lambert was the one who planted the third device and that he was involved in the ALF’s co-ordinated campaign. Sheppard has made a statement, which I have seen, in which he says:

“Obviously I was not there when he targeted that store because we all headed off in our separate directions but I was lying in bed that night, and the news came over on the World Service that three Debenhams stores had had arson attacks on them and that included the Harrow store as well. So obviously I straightaway knew that Bob had carried out his part of the plan. There’s absolutely no doubt in my mind whatsoever that Bob Lambert placed the incendiary device at the Debenhams store in Harrow. I specifically remember him giving an explanation to me about how he had been able to place one of the devices in that store, but how he had not been able to place the second device.”

In the same interview, Sheppard says that two months after the three Debenhams stores were set on fire, he and another person were in his flat making four more fire bombs when they were raided by police. Sheppard alleges that the intelligence for the raid was so precise that it is now obvious that it “came from Bob Lambert”. Lambert knew that the pair were going to be there making another set of incendiary devices.

Sheppard was jailed for four years and four months, and Clarke for more than three years. For Lambert, it was a case of job done—in fact, so well had he manipulated the situation that he even visited Sheppard in prison, to give him support before disappearing abroad. Until recently Sheppard had no reason whatever to suspect the man he knew as Bob Robinson—he assumed that Robinson had got away with it, fled the country and built a new life.

It seems that planting the third incendiary device might have been a move designed to bolster Lambert’s credibility and reinforce the impression of a genuine and dedicated activist. He successfully went on to gain the precise intelligence that led to the arrest of Sheppard and Clarke, without anyone suspecting that the tip-off came from him, but is that really the way we want our police officers to behave?

The case raises new questions about the rules governing undercover police infiltrators and informers, particularly when it comes to those officers committing a crime—an area in which the law is especially grey. Police chiefs can authorise undercover officers to participate in criminal acts to gain the trust of the groups they are trying to infiltrate and, in theory, to detect or prevent a more serious crime, but usually they are not allowed to be involved in planning or instigating the crime. As I understand it, the specific law on that is the Regulation of Investigatory Powers Act 2000, and that before its enactment, at the time of the Debenhams attacks, the rules were vague. They have not so far been made public.

If Sheppard’s allegations are true, someone must have authorised Lambert to plant incendiary devices at the Harrow store, and presumably that same person may also have given the officer guidance on just how far he needed to go to establish his credibility with the ALF. We simply do not know, and in the absence of any proper framework or rules, the task of holding Lambert to account is very difficult. Even if strict protocols are in place to try to control the actions of undercover officers, who decides what the protocols say, and how can we hold those people to account, given the secrecy that surrounds such activities?

Is not an alternative explanation that there were no protocols in place and that decisions were taken at the discretion of this officer, who was not properly controlled? To the extent that there were protocols, is it not clear that the guidance for undercover officers was coming from the Association of Chief Police Officers, which is an entirely unaccountable organisation?

I thank the hon. Gentleman for his intervention. The truth is that we simply do not know, and that is the problem. We need clarity, which is what I hope the Minister for Policing and Criminal Justice can help us with later.

There is no doubt in my mind that anyone planting an incendiary device in a department store is guilty of a very serious crime and should have charges brought against them. That means absolutely anyone, including, if the evidence is there, Bob Lambert, or, indeed, the people who were supervising him.

Ironically, as we have seen, the use of undercover police infiltrators can make it much more difficult to secure successful convictions. Three Court of Appeal judges have overturned the convictions of 20 environmental protestors, ruling that crucial evidence recorded by an undercover officer, Mark Kennedy, operating under the false name of Mark Stone, was withheld from the original trial. The judges said that they had seen evidence that appeared to show that Kennedy was

“involved in activities that went further than the authorisation he was given”,

and that he was “arguably, an agent provocateur.” The latest allegations concerning Bob Lambert and the planting of incendiary devices prompt us to ask: has another undercover police officer crossed the line into acting as an agent provocateur, and how many other police spies have been encouraging protestors to commit crimes?

Mark Kennedy’s exposure in 2010 has shone a light on how officers behave when they go undercover, and especially on the rules governing whether they are permitted to form intimate relationships with those on whom they are spying. Jon Murphy, Chief Constable of Merseyside and the police chiefs’ spokesman on the issue, claims that that is “grossly unprofessional” and “never acceptable”, yet one undercover police officer, Pete Black, claims that superiors knew officers had developed sexual relationships with protestors to give credibility to their cover stories and help gather evidence.

Eight women who say that they were duped into forming long-term loving relationships with undercover policemen have started a legal action against the police. They have a copy of a letter from a Metropolitan police solicitor that asserts that the forming of personal and other relationships by a “covert human intelligence source” to obtain information is permitted and lawful under RIPA, so either rogue undercover officers have been breaking the rules set by senior officers, or senior officers have misled the public by saying that such relationships are forbidden. We need to know what the truth is, and we need any rules of engagement to be published and open to public and parliamentary scrutiny or challenge.

The eight women allege that the men’s actions constitute a breach of articles 3 and 8 of the European convention on human rights. Article 3 asserts that no one shall be subject to inhuman or degrading treatment, and article 8 grants respect for private and family life, including the right to form relationships without unjustified interference by the state. The women go on to allege that the actions amount to common law tortious acts of deceit, misfeasance in public office and assault.

Bob Lambert is one of the five men named in the legal action, as is Mark Kennedy. The Guardian has also reported that Bob Lambert secretly fathered a child with a political campaigner whom he had been sent to spy on, and later disappeared completely from the life of the child, concealing his true identity from the child’s mother for many years. Lambert has admitted having had a long-term relationship with a second woman to bolster his credibility as a committed campaigner, and he subsequently went on to head the special demonstration squad and mentor other undercover officers who formed deceitful relationships with women.

The police authorities have made virtually no attempt to hold those or other men to account, or to examine whether they have broken any rules on relationships when undercover. The solicitors instructed by the Metropolitan police have taken a totally obstructive approach to the litigation, threatening to strike out the claims as having no foundation. Furthermore, police solicitors argue that cases can be heard only by the investigatory powers tribunal, in secret—a move that would prevent the women, whose privacy was invaded in the most intrusive manner imaginable, from hearing the evidence, such as the extent to which intimate moments were reported back to police chiefs. It seems that the police do not want anyone to be able to challenge their version of events or to scrutinise their actions. To paraphrase one of the women involved, it is incredible that in most circumstances the police need permission to search someone’s house, but if they want to send in an agent who may sleep and live with activists in their homes, that can happen without any apparent oversight.

The rules governing undercover police infiltrators and informers are also remarkably deficient when it comes to giving false evidence in court to protect a secret identity. For example, Jim Boyling, who was exposed last year for infiltrating groups such as Reclaim the Streets using the pseudonym Jim Sutton, concealed his true identity from a court when he was prosecuted alongside a group of protestors for occupying a Government building during a demonstration. It is alleged that from the moment Boyling was arrested, he gave a false name and occupation, maintaining this fiction throughout the entire prosecution, even when he gave evidence to barristers under oath.

Boyling was reported to have been present at sensitive discussions between other activists and their lawyers to decide how they would defend themselves in court, undermining the fundamental right of the activists to hold legally protected consultations with a lawyer and illicitly obtaining details of private discussions. A lawyer representing activists who were charged alongside Jim Boyling has noted:

“This case raises the most fundamental constitutional issues about the limits of acceptable policing, the sanctity of lawyer-client confidentiality, and the integrity of the criminal justice system. At first sight, it seems that the police have wildly overstepped all recognised boundaries.”

Yet Boyling’s actions may well have been authorised. Pete Black, who worked with Boyling in the same covert unit penetrating political campaigns, said that the case was not unique and that, from time to time, prosecutions were allowed to go ahead to build up credibility with the activists being infiltrated.

The Metropolitan commissioner, Bernard Hogan-Howe, has defended undercover officers’ use of fake identities in court, claiming that there is no specific law that forbids it. However, I echo the concerns of Lord Macdonald, the former Director of Public Prosecutions, who said that Hogan-Howe’s defence was “stunning and worrying”. He commented that

“at the very least, the senior officers who are sending these undercover PCs into court to give evidence in this way are putting them at serious risk of straying into perjury.”

Bob Lambert, Mark Kennedy and Jim Boyling, as well as two other officers named in current legal actions against the police, John Barker and Mark Cassidy, have all crossed a line. Similarly, other undercover police officers may well have crossed such a line. The assumption is that they have been authorised and instructed to do so, or at least, if that is not specifically the case, that a blind eye has been turned to some of their actions.

Activists who have been infiltrated have called for one overarching, full public inquiry to examine what has gone on. Lord Macdonald has also called for such an inquiry to consider how we should control undercover operations, but the Government have ignored calls to set one up. Instead, the authorities have set up 12 different inquiries since January 2011, each held in secret and looking at only one small aspect of an undercover operation. Those inquiries have not been particularly thorough and have not resulted in follow-up action. For example, the Director of Public Prosecutions, Keir Starmer QC, ordered an investigation and report on allegations that the Crown Prosecution Service suppressed vital evidence in the case of the Ratcliffe-on-Soar environmental protestors. A key criticism of the CPS in that report is of the

“failures, over many months and at more than one level, by the police and the CPS.”

Nick Paul, the senior CPS lawyer who specialises in cases involving police misconduct, was not even interviewed as part of the investigation, and senior CPS staff have evaded disciplinary action. The CPS shows an ongoing reluctance to investigate past possible miscarriages of justice, and Keir Starmer is among those resisting calls for a more far-reaching inquiry.

The new allegations that I have raised today make the case for a public inquiry even more compelling. So many questions remain unanswered, including whether Bob Lambert planted the third incendiary device and, if he did, who authorised him to do so and why. More widely, the public have a right to know why money is being spent on infiltrating campaign groups, with no apparent external oversight of the decision to infiltrate or of whether the methods used are necessary or proportionate. Why are the rules on such practices open to such abuse? Why are high-ranking police officers and, presumably, politicians sanctioning operations that put police officers at risk and undermine basic human rights?

We need to have faith that police officers are beyond reproach, that robust procedures are in place to deal with any transgressions and that those making decisions about the deployment of police officers are accountable and subject to proper scrutiny. I hope the Minister will take this opportunity to review the various concerns I have raised, and that he can tell us that the Government will agree to set up a far-reaching public inquiry into undercover police infiltrators and informers, which will look back over past practices as well as look forward.

May I say what a surprise, but nevertheless what a great pleasure, it is to see you in the Chair, Mr Davies? I congratulate the hon. Member for Brighton, Pavilion (Caroline Lucas) on securing the debate. I am grateful to her for raising some of these issues, because it gives me an opportunity to set out the Government’s response. I recognise that the issues she has raised are serious.

Undercover operations are sometimes necessary to protect the public and to prevent or detect crime. We should commend the difficult and often dangerous job performed by undercover officers. However, in the light of recent cases and concerns, including those raised by the hon. Lady, it is right to ask two principal questions that we must be able to answer with confidence. First, is there a system for ensuring that the use of police undercover deployment is consistent with human rights legislation, particularly the right to privacy and the right to a fair trial? Secondly, is the system working sufficiently well for the particular type of undercover deployment that has led to concerns, or do we need to take action to improve it and ensure that it provides the required assurance?

Before I consider those two fundamental questions, it is important to point out that the deployment of Bob Lambert, a case raised by the hon. Lady, took place in the 1990s, before the Regulation of Investigatory Powers Act 2000—or RIPA, as it is known—was implemented. RIPA is the legislative framework that enables police and other public authorities using covert human intelligence sources, such as undercover officers, to ensure that they act in compliance with their duties under the Human Rights Act. A “covert human intelligence source” is the label used by the legislation to describe anyone who establishes or maintains a relationship for a covert purpose. That applies to a member of the public who comes forward to volunteer information about someone and who is asked by a public authority to find out more. It applies to a public authority test purchaser who engages the confidence of a supplier to buy illicit goods. It also applies to a member of a law enforcement agency who goes undercover to infiltrate and to pass intelligence back to that agency about an organisation planning disruption or criminal acts.

Will the Minister clarify whether RIPA also applies to ACPO’s responsibility for an undercover officer and its status as a private company? Moreover, did ACPO have any involvement in the Lambert case, or did it become involved only in later operations?

I will clarify that point later, but my understanding is that the accountability lies with chief constables, not ACPO. I am aware of and share my hon. Friend’s concern about ACPO and its status. I hope and believe that it will be addressed, but if there is anything further to say about the matter, I will write to him.

I am thinking in particular of the environmental protests at Ratcliffe-on-Soar, where it emerged that ACPO was responsible for the management of undercover officers. I am delighted that, since then, Ministers have ensured the transfer of the powers involved to the Metropolitan police.

My hon. Friend is correct about the responsible unit, and that important change has enhanced accountability.

RIPA applies to each of the instances that I have mentioned, because the true nature of the relationship, which involves reporting back covertly to a public authority what has been said or done, is hidden from the other person or people being talked to. In every case, RIPA requires that authorisation is given only if it is necessary and proportionate. RIPA sets out who can make a decision to deploy a covert source and for what purpose the deployment might be made. RIPA codes of practice provide practical guidance on how best to apply the regulatory framework and how to observe the human rights principles behind authorisations. External oversight and inspection are provided by the chief surveillance commissioner, and independent right of redress is provided by an investigatory tribunal for anyone who believes that they have been treated unlawfully.

That is the system, which was not in place when Lambert was deployed, but does it work? The published annual reports of the chief surveillance commissioner indicate that, in the main, it does, but that has not always been the case. That was shown graphically by the independent report produced by Her Majesty’s inspectorate of constabulary earlier this year on the deployment of undercover police officer Mark Kennedy. It showed that there had been failings in the application of the existing system and safeguards, but it went further by making a number of recommendations for ACPO to strengthen both internal review and external quality assurance of undercover officers deployed against domestic extremism. It also invited the Home Secretary to consider the arrangements for authorising the undercover police operations that present the most significant risks of intrusion. In particular, it proposed raising the internal level of police authorisations for the long-term deployments of undercover police officers under RIPA, and establishing independent, external prior approval by the chief surveillance commissioner for long-term deployments of undercover police officers.

The Home Secretary welcomed the HMIC report, and since its publication the Home Office has been working with the inspectorate, ACPO, the chief surveillance commissioner and others on how best to implement its recommendations.

I am grateful to the Minister for setting out the situation as he sees it, but does RIPA allow undercover police to have sexual relationships with those they are trying to infiltrate? That is one of the points at issue: some say that it does and some say that it does not.

I will try to respond to the hon. Lady’s question before the end of my speech.

One factor is how we target the type of deployment that causes concern, without imposing an unnecessary or burdensome bureaucracy across a much wider field where the regime may be said to be working as Parliament intended. We need to ensure that we do not deter members of the public from coming forward to help the police in what can be difficult work. We also need to make sure that officers charged with sensitive, intrusive and dangerous policing in the community are given the support and protection they require. Above all, we need to avoid the mistakes identified in the HMIC report being made again. Our response, when we make it, will have that uppermost in mind.

On the hon. Lady’s call for a public inquiry, the independent HMIC review looked at the broad issues raised by the Kennedy case, and made clear recommendations as to how the system should be strengthened—a system that was not, in any case, in place when Lambert was deployed. We are considering our precise response to those recommendations. I do not think that it is necessary to conduct a public inquiry.

The hon. Lady raised a number of specific issues, one of which was whether RIPA can be used to authorise a covert human intelligence source to break the law. In a very limited range of circumstances, an authorisation under RIPA part II may render lawful conduct that would otherwise be criminal, if it is incidental to any conduct falling within the Act that the source is authorised to undertake. That depends, however, on the circumstances of each individual case, and consideration should always be given to seeking advice from the legal adviser of the relevant public authority when such activity is contemplated. A covert human intelligence source who acts beyond the limits recognised by the law will be at risk of prosecution, and the need to protect the covert human intelligence source cannot alter that principle.

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.

Does the Minister agree that that sort of fudged, grey area means that for women who have had such an experience, and for women and, indeed, men who might have such an experience in the future, this is incredibly unsatisfactory? We simply do not have clear guidelines on whether the action and going that far are legitimate, and that undermines confidence in the system. The Minister has referred to other inquiries that have been conducted, but what has not been conducted is a public, overarching inquiry to consider all the relevant areas.

Moreover, the Minister’s response to the case of Bob Lambert is extraordinarily complacent. Yes, RIPA was not in place at that point, so there can be no criticism that its guidance was not followed, but what is the Minister going to do now, given that the issue is in the public domain and that there could have been serious miscarriages of justice? How will he follow up on that case in particular?

I am happy to pursue the matter further with the hon. Lady, if she likes, but 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.

The Government are certainly not complacent about the Lambert case. We were keen for an independent, wider review of the deployment of undercover officers by HMIC, which is now independent of the Government and reports to Parliament. We are satisfied that its recommendations will further strengthen the proper system of safeguards for the deployment of undercover officers that did not operate when Lambert was deployed.

Sitting suspended.