Human rights: Beyond legitimate undercover acts

In Wilson v Commissioner of Police of the Metropolis [2021] UKIPTrib IPT_11_167_H, the claimant, Kate Wilson, complained that her rights guaranteed by articles 3, 8, 10, 11 and 14 of the European Convention on Human Rights had been violated by the respondents, the Metropolitan Police Commissioner and the National Police Chiefs’ Council.

From 2003 to 2009, a police operation was in place to collect intelligence about public disorder by political activists. Mark Kennedy was an officer deployed to work undercover and infiltrate the activists. His deployment was authorised under the Regulation of Investigatory Powers Act 2000 (“RIPA”) and allowed him to form “personal relationships” with the activists. Shortly after his deployment, Kennedy entered into a sexual relationship with the claimant, representing himself as a fellow activist and not disclosing his true identity. In addition, the claimant’s political activities and personal life were subject to covert surveillance by Kennedy and other officers over a prolonged period.

When Kennedy’s true role became public, the claimant argued that her treatment by him violated articles 3 (freedom from inhuman or degrading treatment) and 8 (right to respect for private and family life); and that she also suffered infringements of articles 10 (freedom of expression) and 11 (freedom of assembly and association), as well as article 14 (Convention rights to be secured without discrimination on the ground, inter alia, of sex).

The respondents admitted that Kennedy’s deception in entering into a sexual relationship amounted to inhuman and degrading treatment; that the relationship constituted a violation of the claimant’s article 8 right; and that its use as a means of obtaining intelligence constituted interference with her article 10 right. However, they disputed the gravity and extent of the infringements, arguing that surveillance of the claimant was, barring these specific intrusions, necessary in a democratic society. They also denied any breach of rights under articles 11 and 14.

There is a positive obligation upon the state to ensure that breaches of articles 3 and 8 do not arise. The IPT found breaches of those positive obligations that were considerably broader than those admitted by the police. It held (inter alia) that while there was no evidence that sexual relationships were a deliberate tactic in undercover operations, the truth was closer to “don’t ask, don’t tell” (paras 209-226), and there had been a failure to take steps to prevent a sexual relationship from developing.

Although the IPT concluded that the RIPA regime at the time relating to undercover police activities was article 8(2) compliant, it held that the evidence of a pressing social need to justify interference with article 8 rights was thin. The principal justification for the surveillance was public disorder rather than serious criminality. The authorisations granted under RIPA were overbroad, and any attempts to balance the highly intrusive nature of the surveillance and the collateral intrusion into the claimant’s life were wholly inadequate. Accordingly, the invasion of the claimant’s private and family life could not be justified under article 8(2) and amounted to a breach of article 8.

In relation to article 14, the IPT held that the failure to guard against the risk of undercover officers entering into sexual relationships with targets had a disproportionately adverse impact on women. The respondents did not advance any justification for this differential impact and there was accordingly a violation of article 14.

The IPT also found that the respondents had breached the claimant’s articles 10 and 11 rights. Details of her political activities were gathered, recorded and stored, amounting to a clear breach (without any justification) of her freedom to hold opinions and to receive and impart information and ideas without interference by public authority. Further, Kennedy had used his position to influence the claimant’s political opinions and movements, and as such there was a breach of article 11.

This is a significant case in the context of human rights law in the United Kingdom. At para 344, the IPT stated: “This is a formidable list of Convention violations, the severity of which is underscored in particular by the violations of articles 3 and 14. This is not just a case about a renegade police officer who took advantage of his undercover deployment to indulge his sexual proclivities, serious though this aspect of the case unquestionably is. Our findings that the authorisations under RIPA were fatally flawed and the undercover operation could not be justified as ‘necessary in a democratic society’, as required by the ECHR, reveal disturbing and lamentable failings at the most fundamental levels.”

While the IPT recognised that the respondents viewed their conduct through the lens of public order, that is not how it was experienced by the claimant, whose bodily integrity, privacy and political activities were invaded without lawful justification. 

This is a decision that all police forces undertaking covert surveillance will have to be mindful of, and it will be interesting to see what the IPT deems to be a suitable remedy for the claimant.