Mark Kennedymarco4

The High Court ruled last week on how the judiciary will deal with allegations of sexual abuse brought against undercover police officers who had infiltrated activist groups. The judgement was a disturbing one, as much for the attitudes it displayed as for the final decision that was reached. In his written judgement Judge Tugendhat compared undercover cops to James Bond, and suggested that ‘everyone in public life’ would assume that undercover roles would include sexual activity. His attitude bore a worrying resemblance to that of Bernard Hogan Howe, who angered campaigners by stated that police having sex while in an undercover role was ‘almost inevitable’.

The ruling allows some claims for damages to be heard in the High Court, but confines human rights claims to be heard by the unaccountable secret court, the Investigatory Powers Tribunal (IPT), which hears claims relating to state surveillance. The police were keen for all of the claims to be heard here. The IPT has a dire history of transparency and fairness. Judgements are rarely published, and of the 1120 claims known to have been taken to the IPT between 2000 and 2010 only ten were upheld.–judge-8456385.html

But it was his reasoning for reaching this decision that displayed his rather disconcerting attitude. The claimants argued that the behaviour of the undercover police officers, in deceiving, manipulating and exploiting women to establish sexual relationships useful to the undercover operation, was abusive. The conduct of the police officers amounted to ‘degrading behaviour’, and breached the fundamental rights of the claimants. As such, they claimed, what the police did could not be authorised by the vague wording of the legislation that regulates state surveillance, the Regulation of Investigatory Powers Act 2000 (RIPA). Only cases covered by RIPA need go to the IPT. If the conduct of the police fell outside RIPA, all aspects of the claims could be heard in the public courts.

Judge Tugendhat disagreed. He decided that the broad reference in the legislation that allowed undercover officers to enter into ‘personal and other relationships’ was enough to authorise sexual activity, and he suggested that Parliament must have intended it to be this way – after all, hadnt they seen James Bond?

He said that fictional accounts like that of James Bond “lend credence to the view that the intelligence and police services have for many years deployed both men and women officers to form personal relationships of an intimate sexual nature in order to obtain information and access”.

Most disturbing of all, while he accepted the seriousness of the claims in front of him, and accepted that some sexual relations entered into covert operatives would be “degrading treatment”, others “might amount to no more than an interference with a right to privacy.” He stated:

“A physical sexual relationship which is covertly maintained may not necessarily amount to degrading treatment, depending on the degree and the nature of concealment or deception involved.”

Mark Kennedy and the man activists knew as Mark Jacobs probably loved to think of themselves as James Bond characters, leading an intriguing, risky double life pursuing dangerous criminals. In reality, they simply preyed upon the affection and trust of people who genuinely cared for them. Far from a licence to kill, they had only a licence to lie, cheat and manipulate their way into the homes, private lives and beds of their chosen targets. They were armed, not with a Smith and Wesson, but with time, money, and a detailed personal knowledge of their target’s lifestyle; their likes and dislikes, the things that made them tick. The people they pursued were environmental activists, anti-capitalists and anarchists.

Their exploitation of people’s vulnerabilities was anything but heroic; but it was a great deal more than a mere ‘interference with a right to privacy’. This is a legal argument in a legal case. But in the real world an acceptance of undercover policing that has few boundaries and almost no rules, has real life implications. Judge Tugendhat may like to consider whether he would have the same benign attitude to James Bond figures if it had been members of his family that had been sexually exploited and manipulated by the police.

This is the first time, according to the Judge hearing the case, that people have taken a case alleging sexual abuse against undercover officers. That is not surprising, given how rare it is that undercover cops are uncovered. Nevertheless, Covert Human Intelligence Sources (CHIS), a term which includes both undercover police and informants, are also used in a wide range of ‘target’ communities, from football supporters to Kurdish activists. If this case is successful, there may be others out there who will want to look for redress for the sexual conduct of covert agents.