Public Inquiries: Who Discloses What, and in Whose Interests?
Among all of the cases in which former Special Demonstration Squad (SDS) officers have successfully pursued applications under section 19 of the Inquiries Act 2005 for restriction of their real and/or cover names, two in particular are likely to linger in the public record. The first, known only by his inquiry reference HN58, courted controversy because he held a management role in the SDS over a period in which covert deployments relevant to the inquiry’s terms of reference took place. These deployments included surveillance of the Stephen Lawrence campaign for justice. HN58 has been granted total anonymity. The second (who in addition to the Inquiry reference of HN104 is known by the name he assumed whilst engaged in covert operations, Carlo Neri) is one among a group of former SDS officers who have come to symbolise a particularly abhorrent covert policing strategy. The strategy was one in which women members of political campaign organisations were deceived into intimate relationships with SDS officers so that the officers could more easily gain intelligence on the campaign organisation’s lawful activities.
I have published two blog posts in relation to the first case. This post concerns the second case. Both cases raise the question of how far decisions on anonymity applications should be attentive to the endemic nature of institutional racism and sexism in the police force, but it is not specifically with this question in mind that I write this post. Readers who may be interested in my thoughts on the questions are directed to Fear of Black Justice? and Lost Chances – both available, free access, on this website. In examining the inquiry ruling of 7.8.2018 in respect of Carlo Neri’s real name, this post argues that the ruling offers some insights into the role of core participants in public inquiries.
The reasons given by the Inquiry Chair for the partial anonymity decision is set out at paragraph 6 (1) of the restriction order, and is worth reproducing in full:
“As Chairman of a state-created public inquiry, I must not interfere in the right to respect for the private life of innocent third parties, unless other considerations justify my doing so under Article 8(2) of the European Convention on Human Rights. Other considerations do not do so: all who need to know the real identity of HN104 do so; publication of his cover name, which has occurred, will serve to prompt any other person with whom he interacted to provide information and evidence if they can; and he will be required to account, in public, for his conduct” (Inquiry Ruling 12: 6(1)).
The decision quite evidently is one which a reasonable inquiry Chair could make. Nowhere has it been suggested that Neri’s teenage children were knowing and complicit in any of his undercover activities. Therefore, it is not unreasonable to conclude that they are deceived in their knowledge of him and in their knowledge of the nature of his professional activities. As regards the objectives of the inquiry, there appears to be sufficient information already gathered about Neri’s activities during deployments to support the inquiry in the achievement of the aims of modules one and two.
We are informed that the restriction order was made after the inquiry Chair had met with “most” of the eight non-state core participants who have since requested that the Inquiry release Neri’s real name (Inquiry Ruling 12: 6). Such meetings are not a common occurrences in public inquiries. That they occurred at all is evidence that the Chair was at pains to achieve a sensitive balancing of important competing interests. However, his actions and decisions in the lead up to the ruling of 7.8.2018 cannot be read in isolation from the terms he set, at the beginning of his stewardship, for the inquiry’s scrutiny of restriction order applications. These terms include recourse to the controversial closed hearings which, in part, determined the outcome of Neri’s application. Although considerable effort appears to have been made to overcome the public disquiet caused by closed court hearings and by two recently cancelled public hearings, it may still not be enough.
As indicated in the introduction to this post, the most interesting, because unexpected, aspect of the Neri anonymity decision is the potential it has for opening up a much needed public debate about the role of core participants in public inquiries, and the responsibilities they have (if any) to the wider public in matters concerning the nquiry which they joined voluntarily.
In common with inquiries established in recent years, the inquiry into undercover policing follows the guidance on when it is appropriate to designate an individual or organisation core participant status, which is provided in section 5 of the Inquiry Rules 2006. The relevant provision reads as follows:
(1) The chairman may designate a person as a core participant at any time during the course of the inquiry, provided that person consents to being so designated. (2) In deciding whether to designate a person as a core participant, the chairman must in particular consider whether— (a) the person played, or may have played, a direct and significant role in relation to the matters to which the inquiry relates; (b) the person has a significant interest in an important aspect of the matters to which the inquiry relates; or (c) the person may be subject to explicit or significant criticism during the inquiry proceedings or in the report, or in any interim report. (3) A person ceases to be a core participant on— (a) the date specified by the chairman in writing; or (b) the end of the inquiry.
Some key points call to be emphasised. First, no individual or organisation can be compelled to adopt core participant status. Second, the core participant will often have a personal stake in aspects of the inquiry, which, logically, the wider public will not share. Third, whilst a core participant may be a witness in the inquiry, the notion of a core participant is not reducible to that of witness. In principle, the role of a core participant is considerably more extensive and potentially much more important than that of a mere witness. In some ways the structure of the public inquiry assumes a collection of individuals, usually chaired by a legally qualified person, often, as in this case, a retired judge, all working together in the interests of the wider public to arrive at the ‘truth’ behind the events which the inquiry was established to investigate.
These brief observations about core participant status are important to my assessment of the significance of paragraph 7 of the ruling in respect of Neri’s real name. Noting that “HN104's real name is known to a number of activists, including those with whom he interacted during his deployment and to the traditional media” (Inquiry Ruling 12: 3), the paragraph reads:
“The limits on what this order will achieve need to be understood. Any document referring to, or written by HN104, will refer to him in his cover name "Carlo Neri" only. His real name will be redacted from them. Evidence will be given by him, in public, in his cover name. The evidence which he gives must describe his deployment and his conduct during it in full. Finally, and most importantly, this ruling will not prevent any person from publishing his real name unless they have derived that knowledge from documents, information or evidence produced or given during the course of the Inquiry. In the final analysis, the decision whether or not to publish HN104's real name will depend upon the judgement and humanity of those who already know it” (Inquiry Ruling 12: 7).
This aspect of the ruling has already been reported as causing deep offence, not least for its reference to the “judgement and humanity” of those who know, and might reveal, Neri’s real name (see for example, Morning Star, 8.8.2018). I read in it a much more profound intent. Non-state core participants are being challenged to move from the level of statements of general principle about the public interest in full disclosure of the names and deployments of SDS officers to a point at which they must engage in the business of making concrete decisions which affect identifiable individuals, including ‘innocent third parties” (Inquiry Ruling 12: 6).
To conclude, the Neri case marks a critical moment for both inquiry Chair and non-state core participants. The judgement of non-state core participants has been put in question, but the judgement call required is not specific to the Neri case. Rather, it is to ensure that in the course of their participation in the inquiry non-state core participants guard against the danger of conflating the interests of the wider public with their personal interests. If, with this caution in mind, it is thought that the inquiry Chair’s ruling is misconceived and that publication of the real name of Carlo Neri is in the wider public interest, then non-state core participants have the opportunity to remedy the inquiry Chair’s fault – provided that knowledge of Neri’s real name is not “derived from documents, information or evidence produced or given during the course of the Inquiry” (Inquiry Ruling 12: 7).
And we know that the inquiry is not the only repository of information relating to Neri’s real name.
Inquiry Into Undercover Policing, Ruling 12, 7.8.2018.
Morning Star, Spycops probe chair Mitting has ‘sunk to new depths’, 8.8.2018.