Sex, lies and the CPS: a forensic examination of spycops (and other) cover-ups

Alison Saunders, DPP

Law is not sacrosanct and its imperfections must always be overridden by a higher sense of justice. The Crown Prosecution Service (CPS) is the UK Government’s gatekeeper of which alleged crimes get to go to court and which do not. The CPS would argue that its legal advisers do their utmost to interpret the law the best they can. But politics invariably get in the way and this is manifestly clear with regard to certain high profile cases – that of Lord Janner, Julian Assange and now the infamous spycops/sex scandal. The latter saw the Metropolitan Police issue a written and televised apology to eight women who were victims of undercover policing. The CPS’s earlier decision not to prosecute the officers involved, or their supervisors, was a gross act of injustice – and we have covered this earlier, though the CPS ruling needs unpicking further, not only because there may be other women victims of abuse by these particular undercover officers, but also because there are many more – at least 1200 (this figure excludes Scotland and Northern Ireland) – undercover cops yet to be exposed. A forensic examination of the CPS ruling is given in section ‘B’ below.

In the meantime, here are just two more undercover operators who infiltrated political protest groups…

Paul Mercer:

Mercer, was actively involved with environmental and animal rights campaigns in Nottingham, including Nottingham Against Incineration and Landfill (NAIL). Mercer was involved in groups in Nottingham in the period 2002-2007. Mercer was publicly exposed for his role in spying on anti-arms trade campaigners, Campaign Against the Arms Trade (CAAT) in 2007. His contract for the operation was finalised through a private security company – Global Open. More…

Mark Cassidy:

Mark Cassidy walked into the Colin Roach Centre in Hackney early in 1995. Within weeks he had thrown himself into virtually every area of the centre’s political life and quickly began writing for our internal bulletin and that quarterly magazine sold to the public. As the owner of a van he could also be relied upon to transport people and equipment to meetings and ensure they got home safely afterwards. Always polite and happy to help out he soon became well liked and respected. More…

A. Over 1200 spycops: the unanswered questions:

According to Her Majesty’s Inspectorate of Constabulary (HMIC) there were 3,466 undercover operations in England and Wales between October 2009 and September 2013 alone and that at the most recent count, 1,229 officers in 39 units were trained as undercover officers.

There are many unanswered questions. For example, how many undercover officers are involved in monitoring political protesters or protest groups? Also, how many were or are involved in sexual relationships with targets in order to elicit information? Given the recent apology by the Metropolitan Police regarding the behaviour of undercover police officer, it is imperative that these and many other questions are answered.

Or as the Campaign Opposing Police Surveillance (COPS) puts it: “How many other women were similarly abused? How many other children searching for their fathers are doomed to failure because it’s a name a police officer made up or stole from a dead child? How many campaigns were stymied? What other outrages have occurred that none of the known officers committed? At least 500 groups and uncountable thousands of individuals were spied on. They all have a right to know.”

B. The CPS and political interventions:

The CPS is no stranger to controversy. As well as the spycops/sex scandal (see below) other notable cases of political intervention/manipulation include that concerning Wikileaks editor-in-chief Julian Assange and that of the Labour peer, Lord Janner.

With the Assange case the CPS has stage-managed the entire legal process, as these letters from CPS legal adviser, Paul Close, to Sweden’s DPP, Marianne Ny, show. Close’s advice to Ny was basically to avoid questioning Mr Assange at all costs, and to drag out the proceedings as long as possible, if not indefinitely (with the aim of either imprisoning Assange for life in the Ecuadorean embassy, or to wait until he left the embassy so that he could be arrested and extradited to the USA). The correspondence between Ny and Close shows they had a very personable relationship – if not close (pun intended). Indeed, in one of his emails to Ny, Mr Close ends up saying “I am sure you can guess what I would love to send you as a Christmas present” (i.e. Julian Assange).

With the Janner case, the CPS was spectacularly forced to reverse an earlier decision not to prosecute the peer on charges of child sex abuse.

In both the Assange and Janner cases, politics was central to CPS’s interference.

As for the CPS ruling on the spycops scandal, this was seriously flawed, as can easily be demonstrated. Here is the ruling – let’s deconstruct it…

“In order to prove the offence of rape the prosecution must show that the complainant did not consent to sexual intercourse. In this case the Sexual Offences Act 1956 and the case law interpreting that Act is applicable, the effect of which is that consent can be negated if there has been a deception as to the nature of the act (for example where consent was induced by the pretence that the act of intercourse was for medical treatment) or where there has been deception as to the identity of the suspect. The identity of the suspect is relevant to a very limited extent. Section 1(3) of the Act expressly provides that impersonating a woman’s husband may vitiate (negate) consent. This section was later extended by case law to include the impersonation of a person’s partner. The law does not go further and allow the fact that a person does not reveal their true or full identity to be capable of vitiating consent where it is otherwise freely given.”

Undercoverinfo comment… The key here is what constitutes sexual consent. Consent is only truly consent if both parties are knowledgable of all the facts. An undercover police officer using a false identity in order to obtain information from a ‘target’ and who then develops a sexual relationship with that target is clearly deceiving that target. The CPS is therefore entirely correct when it says that “consent can be negated if there has been a deception as to the nature of the act… where there has been deception as to the identity of the suspect”. But where the CPS erred is when it ruled that if the victim consented to sex, despite not being aware of this deception, then no crime had been committed. Should it be the case that in matters of law this ruling is correct, then a far better option would have been to test the law in court (and, if needed, set a new precedent). The CPS, however, chose not to proceed with this option.,

“The 1956 Act does not define “consent”, and so the word needs to be given its ordinary meaning in cases falling under that Act. The 1956 Act was replaced by the Sexual Offences Act 2003, which does provide a definition of consent in section 74. Although the 2003 Act is not applicable in this case, as it post-dates the allegations, the principles set out in section 74 of that Act, which relate to freedom and capacity to make a choice, provide helpful guidance as to the ordinary meaning of “consent” and to that extent were relevant to this case.”

Undercoverinfo comment… The 1956 Act is clearly inapplicable here – and this is another reason why the CPS ought to have ruled that the matter be tested in the courts. Back to the CPS ruling…

“Case law which demonstrates the law on consent as set out in the 2003 Act includes:

R – v – Assange, where the court concluded that if consent was conditional on the use of the condom during intercourse, and the condition was deliberately disregarded, that was capable of amounting to rape.

R(F) – v – the DPP, where the claimant said that she had consented to sexual intercourse only on the clear understanding that her partner would withdraw before ejaculation, and there was evidence that the condition was deliberately ignored. The court held that those facts were capable of amounting to rape on the basis that she had been deprived of choice relating to the crucial feature on which her original consent to sexual intercourse was based. The court commented that “the evidence relating to choice and the freedom to make any particular choice must be approached in a broad common sense way”.

R – v – McNally, where consent was negated on the basis that the victim believed she was having sex with a male partner, where in fact she was having sex with a female who had deceived her. In this case the Court of Appeal said that “depending on the circumstances, deception as to gender can vitiate consent”… but added: “in reality, some deceptions (such as, for example, in relation to wealth) will obviously not be sufficient to vitiate consent.”

Undercoverinfo comment…  The undercover police officers deceived women over many months and, in some cases, years. And during that period they had sexual intercourse with their victims – and in two cases, fathering children. The allegations made against Julian Assange and the two other cases quoted have no legal relevance in the spycops matter, but by bizarrely conflating those allegations and the two other cases in its spycops ruling the CPS clearly demonstrated either profound ignorance, or its unequivocal political interests.

Back to the ruling…

“We have concluded, after careful consideration of the evidence in accordance with the principles set out above, that any deceptions in the circumstances of this case were not such as to vitiate consent and that consequently there is insufficient evidence to prosecute for rape. In order to prosecute the offence of indecent assault, the same test would need to be satisfied in terms of consent, and the CPS has determined there was insufficient evidence for a realistic prospect of conviction on this basis. In order to prosecute for procurement of a woman for sexual intercourse by false pretences, the prosecution would need to show that any deception was carried out as a specific inducement to sexual intercourse, which took place as a direct result of such inducement. There was insufficient evidence to prove this. In order to prosecute misconduct in public office, the prosecution would have to show that an officer knowingly abused their position in order to bring a sexual relationship about, as opposed to having engaged in a sexual relationship whilst holding the position in question. There was insufficient evidence to show this. In order to prosecute a breach of the Official Secrets Act the prosecution would have to prove that the suspect in question disclosed information that would, or would be likely to, damage the work of the security and intelligence services; or that the disclosure would impede the prevention of offences or the apprehension or prosecution of suspected offenders. We determined that neither could be proved.”

Undercoverinfo comment… The CPS argues that deception that involves sex must also include inducement. This is nonsense. The deception in the spycops cases here was extensive and comprehensive – and everything that took place as a result of that deception should be brought into question. The apology last week by the Metropolitan Police for what had happened is indubitably an admission of guilt on all levels, including an admission that the undercover police officers were guilty of misconduct and, in doing so, had abused their positions. It can also be argued that revelations by certain undercover police officers subsequent to the CPS ruling constituted a breach of the Official Secrets Act.

Undercoverinfo conclusion: given the full and unreserved apology by the Met Police, the CPS should (as with the Janner case) reverse its ruling and allow the officers concerned to be prosecuted and the cases tested in open court.

Here are more comments on the above from legal expert Ben Fitzpatrick:

Appendix: the role of the supervisor – the Mark Kennedy case

According to the 2012 HMIC report into undercover policing:

“Mark Kennedy was deployed undercover by the NPOIU for a total of nearly seven years. During that time he was tasked to gather intelligence on individuals, groups and campaigns about a variety of issues, mainly linked to environmental concerns. He worked on operations throughout the United Kingdom and on deployments to 11 other countries. However, HMIC found that Mark Kennedy operated outside the Code of Conduct for Undercover Officers. This suggests that NPOIU operational supervision, review and oversight were insufficient to identify that his behaviour had led to disproportionate intrusion. I have today been briefed by [redacted] on this operation, prior to it being forwarded to ACC Sampson [Assistant Chief Constable of West Yorkshire Police John Sampson who gave authorisation for Kennedy’s deployment on the Drax coal train protest].”

The report added:

“Day – to – day supervision and support was provided by a dedicated sergeant (a Cover Officer), who worked closely with Mark Kennedy for the entire period of his deployment. This supervisor was responsible for Mark Kennedy‟s welfare, as well as for providing advice about his deployment and reviewing the intelligence produced.”

Kennedy’s boss was Anton Setchell, who was the National Co-ordinator for Domestic Extremism (NCDE). Setchell had oversight of three political policing units – Kennedy’s National Public Order Intelligence Unit (NPOIU), the corporate advisory National Extremism Tactical Co-ordination Unit, and the National Domestic Extremism Team.

Setchell and the other supervisors of the undercover police officers in the spycops/sex scandal should also be prosecuted for their role.

And in case there is any doubt about how and by whom Kennedy’s undercover activities were authorised, below is a copy of a memo by Setchell, in his own handwriting, in which he gives his imprimatur to Kennedy. Preceding this is a transcript of the bulk of this memo:

“…My role is not that of authorising officer, but as NCDE, to have the opportunity to comment on this deployment prior to the AO [authorising officer] reviewing the authority. This operation has now had an SIO [senior investigating officer] appointed to help oversee it – [redacted]. The [redacted] aspect now has an investigative strategy developed which will seek to exploit evidential opportunities when they arise (amongst other things). [redacted] has reviewed this operation and some recommendations in his report (to be distributed soon) will be considered by [redacted], the SIO and the AO in due course. This operation/deployment is focused on key areas of Domestic Extremism which I can say sit in the ‘priority area’ of DE for England and Wales and without this asset in place, our intelligence picture would be significantly reduced and I would seek to replace this asset very quickly to regain our understanding of the intentions of the DE groups that are listed. I recommend that the authority continues.”

See also:

Did Spycops Commit Sex Crimes?

The spycops and their supervisors who remain accountable (fraud, abuse, rape…)

Lisa Jones, girlfriend of undercover policeman Mark Kennedy: ‘I thought I knew him better than anyone’