Investigatory Powers Tribunal identifies ‘formidable list’ of human rights failings by the Metropolitan Police in undercover policing judgment
Spycops judgment: ‘disturbing and lamentable failings’ led to the invasion of the claimant’s ‘bodily integrity, privacy and political activities … without lawful justification’.
Kate Wilson is one of at least 27 women who were deceived into sexual relationships with undercover officers working for units of the Metropolitan Police in the period 1968–2010. Between November 2003 and February 2005, she had a sexual relationship with a man known to her as ‘Mark Stone’, with whom she remained close friends after the relationship ended. In October 2010, Ms Wilson discovered that ‘Mark Stone’ was actually Mark Kennedy, a married undercover officer with two children who was conducting covert surveillance for the Metropolitan Police’s National Public Order Intelligence Unit. Ms Wilson (who has no criminal convictions) subsequently discovered that she had been subject to covert surveillance by at least five other undercover officers over a period of more than 10 years from the late 1990s to 2010. Wilson v Commissioner of Police of the Metropolis and National Police Chiefs’ Council  UKIPTrib IPT_11_167_H
, 30 September 2021, followed settlement in the High Court of a claim by Ms Wilson for tortious breaches (deceit, misfeasance in public office, assault, battery and negligence).
A notable feature of this case was that the respondents admitted ‘very significant’ breaches of articles 3, 8 and 10 of the European Convention on Human Rights (ECHR) prior to the hearing (para 14), the extent of which the Investigatory Powers Tribunal described as ‘almost if not entirely unprecedented’ (para 15). However, the respondents disputed the gravity and extent of the infringement of those rights, particularly in relation to the level of knowledge or acquiescence of more senior officers and related failures in training, supervision and safeguarding. The respondents denied any breach of Ms Wilson’s right to freedom of assembly under article 11 and freedom from discrimination against women under article 14.
The tribunal’s judgment
The tribunal found a ‘formidable list’ of breaches by the respondents of Ms Wilson’s fundamental rights under ECHR articles 3, 8, 10, 11 and 14, revealing ‘disturbing and lamentable failings at the most fundamental levels’ (para 344). The case represents the first time that the tribunal has made findings of breaches under article 3 and article 14.
The tribunal identified breaches of articles 3 and 8 that were considerably broader than those conceded by the respondents, including because senior officers ‘either knew of the relationship, chose not to know of its existence, or were incompetent and negligent in not following up on the clear and obvious signs’ (para 225), adopting something akin to a ‘Don’t ask don’t tell’ approach (para 226). It concluded that the respondents breached their positive obligation to protect those subject to surveillance from interferences with their ECHR article 8 rights, identifying widespread failures to supervise undercover officers and that the training provided to undercover officers was ‘grossly inadequate’ (para 193).
Additionally, the tribunal found that the authorisations for the undercover operations did not meet a pressing social need and were not necessary in a democratic society, including because the authorisations failed to distinguish between the policing of domestic extremism involving serious criminality and public order policing. No proper consideration was given or structures put in place to limit collateral intrusion into the private lives of persons not named as the subject of surveillance.
Ms Wilson suffered serious breaches of articles 10 and 11 because she was subject to surveillance due to her political views and because Mr Kennedy took steps to directly influence her political opinions and movements. These acts were freestanding violations of articles 10 and 11 that were not in accordance with the law, necessary in a democratic society or proportionate, notwithstanding that they also constituted breaches of articles 3 and 8.
As for article 14, the tribunal found that the failures of the respondents had a disproportionate impact on women in terms of the number of women affected and the greater impact on their child-bearing years. It heard uncontested evidence that many other women were deceived into sexual relationships with undercover officers, leading it to conclude that such behaviour was ‘widespread’ (para 296). The tribunal also made important observations regarding the Metropolitan Police’s conduct of the case and its failure to produce factual evidence on matters exclusively within its knowledge.
This significant judgment is the culmination of 10 years of legal action by Ms Wilson, whose tenacity and perseverance in pursuing her claim has brought to light fundamental failings on the part of the Metropolitan Police. Many of the tribunal’s key factual findings – particularly regarding failures of training, supervision and safeguarding, and to properly consider issues of collateral intrusion, impact on women and intrusion on political activities – will be of broader relevance both to the ongoing work of the Undercover Policing Inquiry
and its core participants. The judgment will also require the Metropolitan Police to reflect carefully on the criticisms levelled against it and respond with real change, both to the way it conducts its undercover operations and to the way it conducts litigation against victims of human rights abuses.
A separate hearing on remedies will be held in January 2022.
The authors acted for Ms Wilson. Freshfields Bruckhaus Deringer instructed Charlotte Kilroy QC, Isabel Buchanan and Tom Lowenthal, all of Blackstone Chambers.